Post-Ayodhya India: A Slippery Road Ahead Court

India and Pakistan chose diametrically opposite trajectories upon creation. Pakistan was created in the name of religion, though not as a theological state, and India decided to be a constitutional secular state. India was in fact cited by many in 1950s and 1960s as an example of success of third world constitutional pluralistic and secular democracy.

Early 1980s saw rise in extremism in Pakistan in the wake of the US-led support to Afghan freedom fighters against erstwhile USSR. India mostly remained insulated from regional developments but nurtured its own penchant for faith-led right wing politics.

The victory of Bharatiya Janata Party (BJP) in 2014 set the stage for transformational changes in Indian self-image. Since 2014, the BJP has embarked on a campaign to rewrite Indian history and erase symbols of Muslim rule in India.

India mostly remained insulated from regional developments but nurtured its own penchant for faith-led right wing politics.

Indian Supreme Court announced the much-awaited verdict on Babri Mosque on 9 November 2019 and surprised everyone except right wing extremist elements. The judgment has been criticised by most political and legal observers. One of the most prominent critical voice is that of Justice (Retd) AK Ganguly, a former judge of Indian Supreme Court. He has been quoted in The Wire saying that “the ruling had actually placed a premium on the mosque’s demolition.” He also said “If the Babri Masjid was not demolished, and Hindus went to court saying that Ram was born there, would the court have ordered it to be demolished? [The court] would not have directed it.”

The court described the demolition as an “egregious violation of the rule of law” but then handed the land over to the Hindu plaintiffs – essentially the Vishwa Hindu Parishad – ruling that on the “balance of probabilities,” they had a better claim to the site than the Muslim side.

He is no ordinary commentator but a former judge of the same court which issued this watershed ruling. What is it that he is pointing at since the court has, prima facie, resolved a 70-year old dispute, which divided the country along religious lines? Highest courts interpret laws and constitution. They make legal precedents which are cited in lower courts for times to come.

He fears that the Supreme Court has set a very dangerous legal precedent which can potentially be misused in a not so distant future. The ruling has equipped Hindutva forces with a legal tool to pick their next target (there are at least 12 more disputed mosques in India) and claim victory. Courts have shown their willingness to be coerced by social/political forces of the country. A minority cannot coerce the highest court, for sure.

Ironically, courts have apparently borrowed this principle from Israel. The development of Jewish settlements on Palestinian land is now a new reality, which cannot be ignored if and when any mechanism of dispute resolution is agreed upon by both sides. Palestinians may have their claims on land but Jews, living on those lands, would be a “powerful reality” not possible to ignore.

The ruling has equipped Hindutva forces with a legal tool to pick their next target

Similarly, Hindutva forces created a new reality by razing the mosque in 1992. Now, that the structure of the mosque was gone, the dispute was on possession of land and not reconstructing a temple in its place. The Supreme Court chose one party over the other not on basis of any point of law but on the flimsy Doctrine of Essentiality. As per Barkha Dutt, a prominent Indian political commentator and author, “The essentiality doctrine is frankly either a camouflage (for taking decisions the court has already made up its mind on) or a slippery slope.” She also wrote an opinion piece in The Washington Post “The ruling Bharatiya Janata Party as we know might not have come to exist were it not for the political campaign to demand the construction of a Ram temple at the site of the mosque.” This is one of the most apt commentaries on the policies and politics of the current ruling party of India by an Indian. But such voices of sanity are muted by strong arm tactics of extremist forces.

One can visualise the sequence of events in case of claiming another mosque for a temple. Incite religious fever, pull down the structure, move courts, and win a legal battle after fatiguing one generation of the aggrieved party. Meanwhile, use media to ask the minority to show restraint to promote communal harmony.

There has not been any violence or threat from Muslims. There are no plausible reasons except that Muslims may have lost faith in the system and are scared to see a repeat of 2002 pogrom of Gujrat when Narendra Modi was the Chief Minister. Revoking Article 370 and turning Kashmir, the only Muslim majority state in India, into a union territory occurred merely three months ago. The atmosphere of fear has been used to the utmost advantage.

It is now up to the BJP and the Indian state to decide how to reintegrate Muslims in the national discourse and how not to further alienate them. The BJP, after all, only fielded seven Muslim candidates in 2019 elections. Political engagement would be needed to assuage Muslims who are reeling under political marginalisation. It would be prudent not to construct a temple and make something more secular at the site like a hospital or a college. The case has already been won. The temptation to build a monument may be resisted.

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