The Indian Supreme Court’s refusal to revisit a communally-charged 1994 ruling on the disputed land once occupied by Babri mosque has revived religious tensions as political leaders strive for unity ahead of the 2019 national election.
Chief justice Dipak Misra and justices Ashok Bhushan ruling for the majority held that there was no need for a larger bench to re-examine the 1994 Supreme Court ruling that a mosque was not essential for worshipping Islam. But Justice S. Abdul Nazeer dissented.
In the 1994 Ismail Faruqui three Supreme Court judges decreed that “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open”. The ruling caused a storm and remains contentious today.
Hindu hardliners demolished the Babri Mosque on December 6, 1992, arguing that it had been built on the birthplace of Hindu god Ram.
Hindutva and Muslim parties both claimed victory from the court’s refusal to reopen the case. The Hindus want a temple honoring Rama to be built on the land originally occupied by the mosque at Ayodhya in the northern state of Uttar Pradesh; Muslim parties are staunchly opposed to the idea.
The Hindu nationalist Rashtriya Swayamsevak Sangh said the Supreme Court ruling supports its long-standing claim of having a legal right to construct a Ram temple where the 15th-century mosque once stood. And the All India Muslim Personal Law Board stated that the judgment contributed to some “positive movement in the case”.
The court had been petitioned to correct what some saw as a gross error in the 1994 verdict by referring the matter to a full bench. However, Chief Justice Misra — who retired on October 2 — and Justice Bhushan held that the 1994 ruling was made only in a specific context of land acquisition and would not affect any adjudication of the wider dispute over use of the site.
Hindutva hardliners poised to capitalize
They were referring to an appeal against the 2010 Allahabad High Court judgment that gave Hindus a greater right over the site than Muslims. The high court reached this conclusion by placing the “faith and belief of the majority — the Hindus” above the claims of Muslims.
Muslims had contended that the mosque should not have been demolished to make way for a Hindu temple; this action culminated in the Ram Janambhoomi movement (Ram’s birthplace movement) and has attracted much criticism.
The Supreme Court ruling said that a comment by Justice J.S. Verma in the 1994 ruling on the site should be interpreted as relevant only in the context of the government having the right to acquire land, irrespective of which place of worship stood on it. Such a right of the state was always present, and wasn’t in dispute in this particular case.
Critics say that the two judges took a narrow view of the issue and may have given parties that follow Hindutva (a particularly virulent political ideology of Hinduism) an upper hand in the dispute. There is also a sense that the apex court has still not decided the issue.
Decision myopic, says dissenting judge
The one dissenting opinion on the bench came from Justice S. Abdul Nazeer, a Muslim who made out a strong case for referring the matter to a larger bench due to its seminal importance in Indian politics. It would be “myopic” and “dangerous”, he said, to classify the case as a title suit or a property dispute, while ignoring the ramifications it has for millions of Indian Muslims and its impact on electoral politics.
Nazeer accepted the arguments of senior counsel Rajeev Dhavan, who has consistently argued that the matter has great significance for how the judiciary interprets the cardinal doctrine of secularism. He asked why matters such as the use of public spaces to celebrate Hindu festivals were referred to a larger court bench for adjudication, yet the Babri Mosque issue was not. The judge questioned whether the religious rights of Muslims were less important than those of Hindus.
Justice Nazeer also pointed out that the 2010 high court judgment, which gave preference to the rights of Hindus, had been influenced in a substantial way by the observations in the 1994 ruling.
Rajeev Dhavan, who is representing most Muslim parties in lobbying the Supreme Court, labeled its decision “fatally flawed”. Together with the judgment in 1994, it had “pre-emptively knocked the bottom out of the Muslim case”, he said, adding: “Worse, Hindu fundamentalists are given a license to trespass into a mosque and destroy it to claim both prayers in and ownership of the site!”
Senior Advocate Sanjay Hegde has predicted that the Babri to will take centre stage in the 2019 elections, when incumbent prime minister Narendra Modi will be trying to secure a second term.
Hegde told Asia Times that the case should be referred to a larger constitution bench in the interests of judicial propriety and discipline. “The majority judgment will only fuel fear and doubts in the minds, not only of Muslims, but also of secular Indians who have faith in the Supreme Court’s impartiality and commitment to the constitutional ideal of secularism, which is a part of the basic structure of the constitution,” he said.
Fuzail Ayyubi, who represented one of the parties in the matter, had earlier said the Supreme Court must refer the matter to a larger bench. He said that the Supreme Court did well to clarify that observations in the 1994 case had no effect on the pending land dispute matter, but said the top court could have gone further, if only for the sake of bolstering its own image before the population and for India’s minorities.
With Modi making political capital out of the temple issue and casting aspersions on leaders of the Muslim cause — most notably in a speech delivered for a local election in 2017 — the dispute will have a crucial impact on the national elections.
As Hindutva parties reportedly rush to get the case decided before the polls to strengthen Hindu support, India’s top court has left itself open to heightened scrutiny, and perhaps even criticism of its actions.