The Telegraph
Tuesday , October 12 , 2010
Since 1st March, 1999
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- Any retreat to pre-modernity is dangerous for democracy

There are three obvious problems with the Allahabad High Court judgment on the Babri Masjid issue. Each of them in isolation is potentially damaging for the constitutional fabric of the country; together they can cause irreparable harm.

The first is the obliteration of the distinction between “fact” and “faith”, which represents a serious retrogression to pre-modernity. In medieval times, witches were burned because people believed that they engaged in evil deeds. A premise of modernity is that this and other such “beliefs” cannot be accepted as “facts”, that there has to be independent and credible evidence on the basis of which alone a “fact” can be established. Hence the verdict of the Lucknow bench that Ram was born at the very spot which was the sanctum sanctorum of the Babri Masjid, because “people” believed this to be the case, is as mystifying as it is retrograde.

There are, to start with, the obvious, but weighty, questions of who these “people” are, how many such “people” must be there to qualify being called “the people”, and what evidence the Lucknow bench had, even regarding the views of the “people”, other than what it might have gathered as a result of the activities, claims and mobilizations of a few Hindu organizations which professed to speak in the name of the “people”. To take the word of organizations that claim to speak in the name of the “people” as the voice of the “people” is dangerous enough. But to take the “beliefs” of the “people”, even assuming these are indeed the well-established “beliefs” of a very large number of people, as synonymous with “facts” strikes at the very root of the rationality that must underlie a modern society.

The second disturbing aspect of the judgment is the obliteration of the distinction between “negotiation” and adjudication. The outcome of negotiations always depends upon the relative strengths of the protagonists. Hence in any situation of conflict, especially of the “either-or” sort, where the relatively stronger protagonist is absolutely intransigent over its claim, negotiations necessarily work to the detriment of the relatively weaker protagonist. In the present context, where the Hindu organizations were intransigent, any process of settlement through negotiations would necessarily have worked against the organizations belonging to the minority community. Since the latter considered this unfair, it went to the court of law. The basic reason for its going to the court therefore, or even for the matter being referred to the court, is that the outcome arrived at on the basis of relative strengths is not universally accepted as “fair”. The court is supposed to be fair because it does not settle issues on the basis of relative strengths but entirely on the basis of evidence, facts and legal provisions. The picture of justice, depicted as a maiden, typically has her eyes covered for this very reason, namely that justice is blind to the relative strengths, positions, powers, and pulls of the protagonists. The rationale of adjudication lies in the fact that its outcome is decided on principles entirely different from those underlying negotiations.

This is why the judiciary is different from societal (as opposed to State) institutions like khap panchayats. The latter are pre-modern, and hence anti-democratic, for two distinct reasons: first, the attitudes of such panchayats are pre-modern, based, as mentioned earlier, on “faith”, “beliefs”, “customs” and practices rather than “facts”; second, the decisions of these societal organizations necessarily and directly reflect the relative strengths of the protagonists and the power relations existing among them. The judiciary, by contrast, being a part of the State, and hence based on a Constitution that guarantees equality before the law for everyone, is supposed to function with its eyes closed, uninfluenced by the relative strengths of the protagonists.

But when the outcome of adjudication itself becomes de jure dependent upon the relative strengths of the protagonists, then that represents a dangerous trend, a retrogression from modernity and democracy. And this is exactly what the Allahabad High Court judgment has done: it has based itself not on “facts” and law but on considerations of what might be acceptable. Since what might be acceptable depends upon the relative strengths of the protagonists, adjudication in this case has ceased to remain adjudication; it has got influenced by the relative strengths of the protagonists.

It is not surprising that after the verdict the Hindutva forces are talking about rapprochement, about peaceful settlement, about negotiated solutions. This is because their “reservation outcome”, that is, the “worst case scenario” possible from their point of view, as expressed by the Allahabad High Court verdict, is already favourable enough for them; they can only improve upon their position, by buying up the one-third share that the high court has given to the waqf board, and hence getting exclusive rights over the entire disputed land.

The third problem with the judgment is that it has accepted the demolition of the Babri Masjid, an act that was a direct violation of the law of the land, as a fait accompli; and by remaining silent on this fait accompli while giving a verdict that echoes in essence what those who undertook the demolition were claiming, it has implicitly rationalized post facto that horrendous and unlawful act of demolition.

True, this court was not supposed to pronounce any verdict on the demolition; it was concerned with a property dispute. But, the obvious question arises: would it have given the land under the central dome of the Babri Masjid to “the Hindus” if the mosque were still standing? If it had done so, then it would have had to implicitly condone an act of demolition since the Hindu outfits then would have been legally entitled to do what they wish, with the land over which they had been given legal rights. And if it had not done so, then it means that the demolition has affected their verdict, that is, that the legal outcome of a property dispute has been affected by an act of illegal demolition: the Hindu outfits have benefited from their illegal action of demolishing a 500-year-old mosque.

The fact that the high court verdict has been taken in a calm manner by the people of the country is gratifying. It is symptomatic of the maturity of the people and also of the fact that communal issues are being pushed into the background as more basic issues of material life claim the people’s attention. In this context, many have welcomed the Allahabad High Court judgment as putting an end to the longstanding controversy so that the country can move on. They feel that keeping the issue alive by going to the Supreme Court should be avoided, and are therefore unhappy with criticisms of the high court judgment.

This position is understandable; but it is erroneous for two reasons. First, any retreat to pre-modernity of the sort that the verdict has displayed is fraught with serious consequences that go beyond the specific issue under consideration, that is, the Ram Janmabhoomi-Babri Masjid issue. If “fact” and “faith” are not distinguished, if adjudication is influenced by the relative bargaining strengths of the protagonists, and if a patently unlawful act brings legal dividends to those who perpetrated it, then it augurs ill for democracy in the country.

Secondly, issues like this leave behind wounds that fester and can cause damage later even if there is no immediate cause for concern. Justice needs to be done, in a manner that is in conformity with the blindness of the maiden. That is the only firm basis on which a modern State can be built; and the resolution of even specific issues like this lies ultimately in the building of such a modern State. Hopefully, the Supreme Court to which the matter will be referred will be mindful of the pitfalls of quick fixes and will uphold scrupulously the cause of law.

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