The Supreme Court recently referred the Ayodhya matter for mediation . Litigation over the Babri Masjid site and its environs has been pending for several years. As is well known, the Babri Masjid itself was demolished while litigation concerning it was pending.
Many questions arise. What is the real dispute to be mediated? What is the ambit of the mediation? Which are the parties to the dispute and are they representative of the various communities? If some religious communities are parties to the dispute, is it the local community of the concerned town or district, or is it the community in the country as a whole? Is this also a dispute between the secular state and those who at a particular juncture were able to defy the law? Is this a standalone issue or one with long-term ramifications?
The question of birthplace
In the late 19th century, a suit was pressed before the Sub-Judge, Faizabad by Mahant Raghubar Das against the Secretary of State. It sought permission to build a temple on a Chabutra, the mosque being located on one side of it. The suit was dismissed on December 24, 1885.
Four days later, the Indian National Congress was founded in Bombay. The delegates present included some from Agra, Allahabad, Banaras and Lucknow. There were pressing concerns occupying the attention of the Indian nation in the making. The fate of the litigation in Faizabad was hardly one of them.
There is more than one site in Ayodhya that contends for being Lord Ram’s birthplace. In March 1921, Gandhi visited Ayodhya and wrote: “When I arrived in Ayodhya, I was taken to a small temple that stands at the place where Shri Ramchandra is believed to have been born. The devout among non-co-operators had suggested to me that I should request the temple priest to use khadi for dressing the images of Rama and Sita. I did make the suggestion, of course, but it is hardly likely to have been acted upon. When I went for darshan, I saw them dressed in ugly muslin with brocades.” Thus, according to the account given to Gandhi, the temple he visited was where, according to prevalent belief, Ram was born. It had dressed-up images and was obviously not quite the spot where idols would suddenly be introduced in December 1949.
In the Constituent Assembly, the question of the Ram Mandir at Ayodhya does not appear to have figured.
The placing of idols under the central dome of the Masjid in December 1949 made the dispute intractable as it affected other rights. The focus shifted from the Ram Chabutra, where prayers used to be offered, to the central dome. These events took place in the interregnum between the adoption of the Constitution and its commencement. The perpetrators had apparently wished to influence decision-making at a crucial juncture in state-formation in India.
The Bharatiya Jana Sangh was founded in 1951. Its founder does not appear to have raised the matter in the election campaign that followed, and himself passed away in 1953. In 1947, a question sometimes asked was whether India had attained independence after 200 years or after 1,000 years. Behind that question lay depictions of state and nation. Would India be a secular state or a theocratic one with a preferred religion? Would it accept or deny its social unity? Gandhi, Jawaharlal Nehru, Maulana Azad, Sardar Patel, Narendra Deva and others provided answers by speech and conduct. Cultures would be on the same plane and all the people India was home to would be respected as equal denizens. This understanding was in conformity with the overall evolution of both the Indian national movement from 1885 onwards and the composite culture that had evolved over the centuries. It was reflected in the Constitution. Nearly a quarter century later, the Supreme Court, enunciating the basic structure doctrine in Kesavananda Bharati (1973), referred in its adjudication also to the landmarks of the national movement and the objectives these had reflected.
The nature of India
The historical question about the nature of India that had emerged on independence was sought implicitly to be re-opened by some politicians who came to wield influence in the last few decades of the 20th century. One of them admitted that the Mandir movement was basically a political movement.
It is known that the local Hindu community of Ayodhya had not been enthusiastic about the matter until it was overwhelmed by organised activists from outside the area. The White Paper (1993) presented to Parliament acknowledged that with the Masjid’s demolition in 1992, the Ram Chabutra was also destroyed. On Solomon’s test, those responsible had simultaneously problematised their own representative status, if any.
Elements of the state and polity have also tended to exacerbate the problem. The Places of Worship (Special Provisions) Act, 1991 was enacted during Prime Minister Narasimha Rao’s tenure. It sought primarily to maintain the character of religious places as these stood on August 15, 1947, but made a gratuitous exception under Section 5 for the “Ram Janma Bhumi-Babri Masjid”.The exception reflected a weakening of political will as it budgeted for a possible transformation in the “Ram Janma Bhumi-Babri Masjid” site.
One the face of it, the dispute may appear to be between private entities but is underpinned by a conflict between constitutional values and challenges to them. The dissenting judgment in Ismail Faruqui (1994) pointed the way to the Centre’s duty: “If the title to the place of worship is in dispute in a court of law and public order is jeopardised, two courses are open to the Central Government. It may apply to the court concerned to be appointed Receiver of the place of worship, to hold it secure pending the final adjudication of its title, or it may enact legislation that makes it statutory Receiver of the place of worship pending the adjudication of its title by the concerned Court. In either event, the Central Government would bind itself to hand over the place of worship to the party in whose favour its title is found (emphasis mine).”
To be effective, any outcome that is approved by the court must also be accompanied by such a prior undertaking from the Centre. Disputes in which any party sees enduring political advantage are unlikely to be settled merely by mediation.
The resolution depends not merely on a jurisprudential exercise but also on the political will to enforce a fair outcome. Since the dispute has in contemporary times gained traction for political reasons, the solution is unlikely to come wholly from a judicial forum, mediation or no mediation. The matter would perhaps resolve itself once a sober and informed public opinion is able to deliberate on whether, when India became independent, it did so after a couple of centuries or after a millennium. India’s constitutional institutions gain their legitimacy and raison d’etre from the first view. Ambiguities among some of these institutions and functionaries in recent decades have been sliding them towards the second view. The recent legislative initiatives on the Citizenship Act are the latest illustration of this. Clearly, the dome to be protected is the Constitution itself.
Anil Nauriya is a counsel at the Supreme Court and the Delhi High Court