By Ranu Jain, October 26th, 2010
Ranu Jain is from the Tata institute of Social Sciences in Mumbai, India.
This article was sent to us by Irfan Engineer, via the Secular Perspective mailing list.
Much has been said about the Ayodhya verdict especially on the legal technicalities and historical loopholes. This comment is not on these aspects but on the socio-political implications of the verdict.
To recapitulate, Allahabad High Court on September 30, 2010, has given judgment on the six decade old title suit on the land in Ayodhya. A mosque, popularly known as Babri Masjid, stands on this land since centuries, however, the land is claimed to be the birth place of a Hindu deity Rama, by certain Hindu groups, and in the year 1949, the idols of Rama and Laxman have ‘appeared’ in the mosque. In the said case, three litigants have claimed ownership to the land. The three judges deliberating on the case have pronounced to divide the disputed land into three equal parts among the litigants namely, Ram Lalla represented by Triloki Nath Pandy; the Nirmohi Akhara and the Sunni Waqf Board. Details of the case can be found on the Allahabad High Court website
The verdict, at least in the initial stage, was appreciated for reconciling a long lasting and sensitive controversy in a democratic manner. It was considered a judgment that would, perhaps, result in constructing ‘a wall of harmony’ among the Muslims and the Hindus – a wall that would not separate but harmonize a Hindu temple and the Muslim mosque in close proximity.
A few intellectuals appreciated the ‘matured’ reaction of people including Muslims, to the verdict. They felt that the reaction reflected faith in the institutions of democratic India especially in the judiciary. Absence of riots after the judgment corroborated this interpretation. However, as later developments show, the judgment has not reconciled the issue and all the three litigants have expressed their plans to challenge the judgment in the apex court.
Conversely, I wonder whether the judgment can be taken as democratic at all. The query gains significance especially if democracy is not taken as a number game but as a process of decision making including those processes that take into account concerns and requirements of all the contesting parties and arriving at a decision through consensus. As aptly put by Jilani(1) and confirmed by almost every one, “The honourable judges have arrived at findings not on the basis of facts or evidence but on the basis of faith and belief. In other words a new category has been introduced into the judicial process”(2). Ashgar Ali Engineer has discussed implication of this process of arriving at a judgment in India, a country of multiple faiths. To quote him, “…all three judges have invoked values of peace and reconciliation rather than constitutional values of democratic India. Law is and must be indifferent to the faith of litigants and even of judges and the judgment, in a democratic country like India which has maintained its independence of judiciary and constitutional values for last sixty years…. Tomorrow other judges motivated by their faith may use this judgment as a precedent and deliver other judgments invoking faith….Thus, stretching the argument … in a democracy after all numbers count and so faith of majority community will play greater role than faith of minority community and court of law will thus become majoritarian in their attitude and all the legal values and protection of minorities and their faith in the constitution may be ultimately subverted”.(3) Yet another reaction to the judgment is seen in the planning of a group of Dalit rights activists to demand that the Buddha and Jain viharas (place of worship) that have been converted to Hindu temples should be returned to the original owners.(4) In short, the judgment may increase communal tension and marginalization of the minorities in the nation.
The judgment based on ‘faith and belief’ can be taken as going against the principle of secularism whether defined in terms of distancing State from religion or giving equal space to all religions. The statement gains significance when one recapitulates that as far as the case of Babri Masjid is concerned, the then prime minister Jawahar Lal Nehru ordered removal of the statues in 1950, but the contemporary district magistrate of Ayodhya declined to follow the instruction pleading law-and-order situation in the city. Again, when a lawsuit against the mosque was filed in the district court in 1950, the secular state government of Uttar Pradesh assured Muslims that the lawsuit would be dismissed and categorically submitted in the court that the building had never been a temple and was always a Muslim place of worship(5). The present judgment reflects the changing nature of Indian judiciary. The submission can be supported by revisiting the case of Afzal Guru where capital punishment was granted to Guru in order to satisfy the ‘collective conscience of the society ’. The judgment stated,(6) “The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.”
The rhetoric employed in both the cases, assuages the collective ‘national’ conscience, creating a dent in the image of India as a secular multicultural country. As expressed by many Muslims or empathetic individuals in their private spaces, social networking sites or blogs, the judgment is majority oriented and has legitimized the rightist claim that India belongs to the majority community of the Hindus (assumed as a monolith). It not only justifies the rightist claim for priority in the cultural and religious spaces in Indian democracy but also vindicates their stand. Modi(7) has called it the first step towards Ramrajya, implying less or no space for the ‘other’ cultures and faiths in the Ramrajya, “VHP has made it clear that Sangh Parivar outfits will not rest with the ownership of only 110/90 feet of land but will want the entire 67 acres to be handed over to them”.(8) They have expressed a desire to make a Bhavya Mandir or grand temple on the premises and have demanded the Muslims to forego their claim on the land.(9) The essay in the Frontline is appropriately titled, “Hard line is back”. I would like to add “more aggressively so”.
The silence or the ready acceptance of the Muslims has popularly been interpreted as ‘matured’, but I feel it expresses a feeling of insecurity as well as lack of faith and trust in Indian democratic institutions and processes. The judgment has reduced Muslims to second grade citizens in India, projecting faith and beliefs of the Hindus more worthy of consideration, not giving any space to the faith and beliefs of the Muslims. Babri Masjid demolition, Mumbai and Gujarat riots as well as acquittal of the rioters by the Indian courts appeared to have dwindled faith of the Muslims in Indian democratic institution and processes. They appear neither to ‘trust’ the Indian State to save them nor hope for justice to their causes and needs. Many Muslims including the first litigant, Mohammad Hashim Ansari, have expressed appreciation of the verdict because it would not lead to rioting by the rightist groups. Muslims appeared to have foregone demand for justice for a space to live/survive without constant fear of violence or losing one self and the dear ones - survival in hegemonic terms, giving them a subjugated position but perhaps allowing them to struggle to acquire ‘roti, kapda aur makan’ (food, cloth and accommodation). They do not trust State machinery to protect them in case of a judgment favourable to their cause. The reaction of Muslims reflects their alienation from the State.
The famous social philosopher Charles Taylor has talked about the need of ‘a high degree of cohesion’ for sustaining democracy. This cohesion thrives on trust that emerges due to the process of participation in decision-making. To quote Taylor, “If… a sub group of the ‘nation’ considers that it is not being listened to by the rest, or that this rest cannot understand its point of view, it would immediately consider itself excluded from joint deliberation. Popular sovereignty demands that one should live under laws that derive from such deliberation. Anyone who is excluded can have no part in the decisions that emerge; consequently, these lose their legitimacy for him or her. A sub group that is not listened to is in some respect excluded from the ‘nation’, but, by this same token, it is no longer bound by the will of that nation.”(10) An alienated population can withdraw or migrate out of the nation taking away with it human and non-human resources. Frustration and helplessness can also be expressed in violence and aggression; in self demolition and demolition of others. It is the responsibility of the nation-state then to assuage alienation and enable conditions for reconciliation by providing free and fair justice as well as stake in governance. While conducting studies on Sikh extremism, Deepankar Gupta found that “to a large extent the voice of terrorism was being deciphered only by those who felt that the state was no longer the fount of the law and an impartial arbiter.”(11) Gupta feels that conflict between two parties can be restrained by the legal and judiciary system. When this system fails then such disputes cannot arrive at a reasonable conclusion. “From then on you only have the inarticulate ‘cry’ of the terrorist.”
Succinctly, to sustain democracy, a nation-state requires a strong neutral legal and judiciary system – a system that generates faith thus having capacity to restrain contesting groups, keeping their vested interest under control. Till now, with whatever shortcomings that the Indian judiciary and legal system have shown, it has been able to retain faith of the people. This faith, however, appears to be wilting. A weak judiciary is a threat to democracy as it opens other avenues for settling scores, putting at stake the interest of the nation. Need is to insist and ensure that justice is delivered to all including the minorities in accordance to the Constitution of India over-ruling shadows of religion and politics. Only a strong legal and judiciary system will rejuvenate trust of the citizens on Indian national institutions, with a high possibility of reducing communal tensions and riots.
 - Lawyer of Sunni Waqf Board
 - Frontline, October 22, 2010
 - The Telegraph E-paper, Saturday , October 9 , 2010
 - Afzal Guru was awarded capital punishment by the Supreme Court for carrying out attack on the Parliament.
Indian Express (2008): “Will go by SC verdict (death penalty) on Afzal if we come to power: Advani” accessed on 20th October, 2010 at http://www.indianexpress.com/news/w…
 - Frontline (2010:12), October 22
 - DNA (2010), October 16: pg 17.
 - Taylor Charles, 2002, “Democracy, Inclusive and Exclusive”, in Madisen R. et.al. (eds), Meaning and Modernity: Religion, Polity and Self, University of California Press, London.
 - Gupta Deepankar, 2002, “Limits of Tolerance: Prospects of Secularism in India after Gujarat”, Economic and Political Weekly, Nov. 16