In a significant move, the Supreme Court earlier this month permitted mediation to resume in the Ram Janmabhoomi-Babri Masjid dispute after its three-member mediation panel informed that some Muslim and Hindu parties were keen on going back to the negotiating table to find an amicable way out of the imbroglio.
This is a welcome development, considering the fact that there was widespread scepticism among the same parties when the Supreme Court mooted the idea in March. While many Hindu groups opposed mediation, the Muslim side questioned the neutrality of one of the mediators, Sri Sri Ravishankar, but agreed to join the process. Unfortunately, despite its best efforts, the panel could not get the parties to come to an agreement.
A pragmatic realisation
Yet, the court immediately granted the parties’ request to restart mediation and let it proceed concurrently with the day-to-day-hearing. For this, it deserves praise. But the biggest takeaway for the peaceable majority of this country is the eagerness shown by the contending parties in resuming mediation. It subtly points to a pragmatic realisation that excessive reliance on theology may not bring about an amicable resolution to the conflict.
However, the ongoing hearing in the Supreme Court appears to be meandering around the uncertain pathways of dogmatic certitude eliciting exasperated expressions of sufferance from the advocate for one of the Muslim parties, Rajeev Dhavan. During a recent hearing, he indirectly accused the Court of entertaining arguments based on theology rather than legality and concrete proof. It may be recalled that in March, the court was quoted in the media as suggesting that the case was not about a portion of disputed land but “about religious sentiments”.
The question here is: Would delving deep into conflicting theological positions in a title dispute be conducive to the apex court’s genuine desire to “heal minds and hearts” of the disputants, especially when the parties themselves have renewed their faith in the mediation process?
In the Ismail Faruqui case, a Constitution Bench of the apex court refused to answer a Presidential Reference under Article 143 asking for its opinion on whether any Hindu religious structure existed prior to the construction of the Babri Masjid. Renowned jurist Nani Palkhivala is also on record stating: “Courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, questions of opinion or belief or political wisdom.”
The seeming intractability of this doddering mandir-masjid case lends credence to the view that an adversarial court process grounded in religious sentimentalism may not be the best alternative to a negotiated agreement. A quarter of a century ago, the judges in the Ismail Faruqui case presciently underscored this reality. They fervently hoped that “moderate opinion shall find general expression and that communal brotherhood shall bring to the dispute at Ayodhya an amicable solution long before the courts resolve it.” Now that several Muslim and the Hindu parties have exhibited their moderateness by renewing their faith in the process of mediation, to taste success they must see to it that the process is kept free of deliberations purely based on faith.
Truth and reconciliation
The Hindu parties, notwithstanding their unshakeable views on the exact birthplace of Lord Rama, must try to “heal the minds and hearts” of the Muslims by accepting that what happened on December 6, 1992 was a gross violation of law. Such a gesture would emulate the restorative process mandated in the South African Truth and Reconciliation Commission and would go a long way in assuaging hurt Muslim feelings. Other confidence-building measures may include a legally enforceable assurance to Muslims that, after the peaceful resolution of this issue, no Hindu organisation would stake claim to any other “disputed” Muslim place of worship in India. The Muslim side too must realise that thwarting a negotiated settlement on the basis of religious beliefs would amount to losing an opportunity to strengthen the entente cordiale.
Neither the Koran nor the authentic statements of the Prophet lend credence to the perception among some Muslims that a mosque, once constructed, will always remain a mosque and cannot be shifted. Such a belief is held only by the followers of a certain Muslim legal school. Many other schools do not subscribe to this idea although they all endorse the fundamental doctrine of the essentiality of mosques in Islam.
The Majmu al Fatawa of Hanbali scholar Ibn Bazz contains a fatwa which mentions the shifting of a mosque in Kufa by Caliph Umar “for a particular benefit that called for that.” And Ibn Taymiyyah in his Majmu al Fatawa states: “It is permissible in public interest to replace a mosque by another one because in some cases such a change can be more useful and beneficial even when the mosque is not fully in a state of disrepair.”
With the help of legal devices such as takhayyur (selecting from different opinions) and talfiq al mazaahib (fusing different legal opinions) Muslim jurists can easily harmonise the doctrines of various Islamic schools to formulate reformist interpretations that are capable of addressing any emergent issue. In fact, Ibn Ashur, one of the great Islamic scholars of the 20th century, argues in his legal treatise Maqasid al Shariah al Islamiyyah that “It is a shariah imperative to seek to achieve what is beneficial ( masalih ) and avoid what is harmful ( mafasid ) for the community under all circumstances, especially when faced with unprecedented problems and pressing adversity.”
For a win-win outcome
As for those Muslims who feel that a negotiated agreement with the Hindus would amount to conceding defeat, they should understand that when the Prophet signed the Treaty of Hudaibiyah, several of his close companions, including Hazrat Umar, considered the agreement to be a humiliating surrender to the Meccans. But the Koran called it “manifest victory” ( fathan mubeen ) and ultimately the treaty proved to be of great benefit to the Muslims.
Therefore, in the interest of peace and communal harmony, if the Muslims come to a negotiated agreement with the Hindus which results in a win-win situation for both sides, they would not have gone against the shariah.
The Hindu side, on its part, must realise that for India to prosper, it must listen to Swami Vivekananda, who pointed out more than a century ago: “For our own motherland, a junction of the two great systems, Hinduism and Islam — Vedanta brain and Islam body — is the only hope. I see in my mind’s eye the future perfect India rising out of this chaos and strife, glorious and invincible, with Vedanta brain and Islam body.”
A. Faizur Rahman is the secretary-general of the Islamic Forum for the Promotion of Moderate Thought. E-mail: a.faizur.rahman@gmail.com
