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 rationality that must underlie a modern society.
A large number of “people”, far more than those believing that Ram’s actual birthplace was below the central dome of the Babri Masjid, used to believe till recently (and many perhaps do even now) that being touched by a Dalit or sharing food with a Dalit brings great misfortune; but to take this belief as a fact and to justify the practice of untouchability on the basis of it defies reason. For a Court of Law, no less, to wipe off the distinction between “belief” and “fact” therefore sets a dangerous precedent. The BJP had been demanding precisely this, namely that whether Ram was actually born there or not as a matter of “fact” is irrelevant; since “people” believe that he was born there, that alone is adequate ground for building a temple there on the ruins of a mosque. The Court has implicitly accepted the BJP’s patently irrational and communal-fascist argument.
The fact that the Court has taken such a position is hardly surprising, given the fact that one of the judges gives expression to his own “faith” by claiming that “He (i.e. Lord Ram) is everywhere” and treats it as a “fact”. What Justice Sharma may hold as his private belief is his own business. His choosing to parade his own religious belief in a judgment that should be based on “facts” shows the dangerous extent to which even the senior judiciary in our country has become unmindful of Constitutional demands.
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 of 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 “beliefs” and power relations no doubt are themselves correlated, but they are not identical. The judiciary, by contrast, being a part of the State, and hence based on a Constitution that guarantees equality before law for everyone, is supposed to function with its eyes closed, uninfluenced by the relative strengths of the protagonists.
True, in a class society, this is never the case; but that is because a class society constitutes in essence a betrayal of a democratic Constitution. The fact of relative strengths and power relations affecting the process of adjudication, even within the framework of a democratic Constitution that guarantees juridical equality, is a de facto rather than a de jure outcome of a class society. 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 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 BJP is talking about rapprochement, about peaceful settlement, about negotiated solutions. This is because its “reservation outcome”, i.e. the “worst case scenario” possible from its point of view, as expressed by the Allahabad High Court verdict, is already favourable enough for it; it can only improve upon its 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. L.K. Advani has quickly seized upon the opportunity to claim that his “Rath Yatra” has been validated post facto. And since the slogan “Mandir Wahin Banayenge” [We Will Build the Temple Again] has now been given a legal clearance, even while the demolition of the mosque that prepared the ground for the implementation of this slogan has gone un-condemned, the BJP and other Hindu outfits feel vindicated and absolved of any blame for their misdeeds.
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 was 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, i.e. 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 five hundred-year old mosque.
The fact that the High Court verdict has been taken in a calm manner by the people of the country is a matter of great gratification. 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 are becoming the focus of the people’s attention. This is a very welcome development, and in this context many have welcomed the Allahabad High Court judgment as putting an end to the long-standing controversy, so that the country can move on. Many therefore feel that keeping the issue alive by going to the Supreme Court should be avoided; and because of this they are also unhappy with criticisms of the High Court judgment.
While this is an understandable position, 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, i.e. 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.
Prabhat Patnaik is an Indian economist, who has achieved international acclaim with his incisive analyses of various aspects of economics and politics. He is a professor at the Centre for Economic Studies and Planning in the School of Social Sciences at Jawaharlal Nehru University in New Delhi. Patnaik is currently Vice-Chairman of the Planning Board of the Indian state of Kerala. This article was first published in MacroScan on 7 October 2010; it is reproduced here for non-profit educational purposes.