May 12, 2011
The Hindu, 12 May 2011, EditorialThe Supreme Court of India’s decision to stay the majority judgment of the Allahabad High Court in the Ayodhya dispute will be welcomed widely. The High Court verdict discomfited not just jurists and constitutional experts but also a broad swath of citizenry who had reason to question the prioritisation of faith over fact. Indeed, the Supreme Court has described the September 2010 judgment as “strange” — a term that will resonate widely, given the extra-legal liberties seen to have been taken by the High Court judges. Broadly, there are two problematical aspects to the Ayodhya judgment. First, the three-way division of property among the Hindu litigants, the Sunni Central Wakf Board, and the Nirmohi Akhara. And, more troublingly, the use of faith as a legitimate argument for awarding the space under the central dome of the Babri Masjid (where the idols of Ram Lalla are placed) to the Hindu plaintiffs. As Justice R.M. Lodha tellingly observed: “A new dimension has been given by the High Court as the decree of partition was not sought by the parties. It [the judgment] has to be stayed.”
It was admittedly a difficult judgment to pronounce for High Court judges S.U. Khan, Sudhir Agarwal, and D.V. Sharma. They had to decide the title suit in a volatile case with an antiquity dating back to 1885 and marked by do-or-die conflicts between two highly emotive religious groups. The three judges gave separate judgments, with Justice Sharma entirely upholding the Hindu claim and the other two striving to be more even-handed. The partition ordered by Mr. Khan and Mr. Agarwal appears to have stemmed from a desire to avoid communal ill-feelings and tensions should the award be seen as one-sided — and indeed the judgment seemed to have a fortuitous calming effect. Unfortunately, the two judges achieved the balance not by resort to reason and constitutional law but by placing “faith” and “belief” over and above the constitutional principle. This ignored the overtly political, and at times the incendiary, nature of the Ram Janmabhoomi movement. The 1949 placement of idols of Ram Lalla under the central dome and the 1992 demolition of the Babri structure were both diabolical political acts. The majority judgment accepted that the idols had been placed by human hands. Nonetheless, Justice Agarwal held this fact to be of no material significance, ruling that Lord Ram’s birthplace was itself a deity with all juridical rights. To be fair, the judge did take note of the “abominable manner” of the 1992 demolition. Yet in an unbeatable irony, he delivered a judgment that had the effect of legitimising the cataclysmic climax.