"What is the VHP? Whom does it represent? What is
its locus standi?", the Supreme Court asked the other day --
and it seemed to have done so in a tone that triggered much delight
‘‘A strange question,’’ the PM remarked in the
Rajya Sabha. A member was up and shouting, actually several secular
ones were, interrupting the Prime Minister. Who are the VHP?... They
don’t represent the Hindus... They will put a bullet through me...,
so what?... The members seemed quite beside themselves. If the mere
mention of its name causes so much reaction, the PM observed, then
it certainly has locus standi.
In matters of religion and faith, standing is not
acquired by winning elections, he said. It depends on the esteem in
which people come to hold one...
A telling answer in itself. And it left the critics
Another side to the question that had fallen from
the Bench too would have struck you. The Bench did not ask, as the
Constitution Bench had not asked, ‘‘Who is Mohammed Aslam, alias
‘Bhure’? Whom does he represent? What is his locus standi?’’ It did
not ask, ‘‘What is the Babri Masjid Action Committee? Whom does it
represent? What is its locus standi?’’ It did not ask, ‘‘What is the
‘All India Muslim Law Board’? Whom does it represent? What is its
locus standi?’’ How is it that doubt assailed it only in regard to
the Vishwa Hindu Parishad?
To put the matter at the least, the Bench could
have looked up the Supreme Court’s own judgement in the Ayodhya case
itself! ‘‘The movement to construct a Ram temple at the site of the
disputed structure gathered momentum in recent years which became a
matter of great controversy and a source of tension,’’ the judgement
quoted the (Narasimha Rao) Government’s ‘‘White Paper’’ as saying.
‘‘This led to several parleys the details of which are not very
material for the present purpose. These parleys involving the Vishwa
Hindu Parishad (VHP) and the All India Babri Masjid Action Committee
(AIBMAC), however failed to resolve the dispute...’’ Again, ‘‘At the
centre of the Ram Janma Bhumi - Babari Masjid dispute is the demand
voiced by the Vishwa Hindu Parishad (VHP) and its allied
organisations for the restoration of a site said to be the
birthplace of Sri Ram in Ayodhya...’’
Yet again, ‘‘The VHP and its allied organisations
base their demand on the assertion that...’’ And yet again, ‘‘The
demand of the VHP has found support from the Bhartiya Janata
Party...’’ And yet again, ‘‘It was also stated by certain Muslim
leaders that if these assertions were proved, the Muslims would
voluntarily hand over the disputed shrine to the Hindus. Naturally,
this became the central issue in the negotiations between the VHP
and the AIBMAC.’’
But suddenly, What is the VHP? Who does it
represent? What is its locus standi?
In any event, that allusion to ‘‘parleys’’ holds a
lesson we will do well to remember. One of the best things Mr
Chandrashekhar did during his brief Prime Ministership was to get
the two sides to agree that the only way to make progress was to
exchange evidence on the matter. The two sides started meeting and
exchanging documents and written arguments. The Babri Masjid Action
Committee was guided by a clutch of Marxist historians --
actually, ‘‘guided by’’ is not quite right: it seemed just the front
for these ‘‘eminent historians’’. The latter used the offices and
facilities of the ICHR that they then controlled to prepare the
AIBMAC submissions -- a fact that led the then Member Secretary
to resign from his post.
The ‘‘evidence’’ that the Babri Masjid group
submitted was no evidence at all. It was just a miscellaneous
pile -- much of it puerile: that Rama was a King of Egypt, that
he was born in Afghanistan, and the rest!
The VHP marshalled an array of evidence from
archaeological sources, from historical records, from literary
sources. That was the end of the ‘‘parleys’’! Realising that they
could produce nothing to match what the VHP had submitted, the
Marxist historians and the AIBMAC gentry just stopped attending the
meetings. And it was this withdrawal, and the consequential death of
the talks that Mr Chandrashekhar had initiated, as much as anything
else that triggered the chain of events that led ultimately to the
destruction of the mosque.
I did not doubt for a moment that the new efforts
of the Shankaracharya of Kanchi would meet exactly the same fate.
And for good reason. In one of the letters that he included in his
'A Bunch of Old Letters', Pandit Nehru used a phrase about Jinnah
that describes this bunch, and its invariable device to the dot:
‘‘Mr Jinnah’s permanently negative answer,’’ Panditji wrote. This is
the singular negotiating tactic of such individuals: just go on
rejecting every formula that the other fellow brings up.
And the tragedy is -- the self-inflicted
tragedy is -- that there always are persons, groups, powers
that insist that the onus of producing the next formula, some
formula which will incorporate an even greater concession to the
other fellow is on us. And in the end we give in to this insistence.
The power and groups that keep insisting that we go on producing new
formulae: the British on the question of partition, the host of
interlocutors on Kashmir, the secularists on the Ram Janmabhumi.
And the ones who merely keep deploying the
‘‘permanently negative answer’’: Jinnah kept rejecting every formula
on partition; Pakistan keeps rejecting every formula on Kashmir; the
Babri Masjid votaries keep, and will keep rejecting every formula on
And the infuriating part is that the advice to
engage in a dialogue is always directed at us -- the Congress
on the question of partition, India on Kashmir, the Hindus on the
Janmabhumi! It is because of this unbroken, unvarying pattern of 75
years that the new Interim Order of the Supreme Court fills me with
foreboding -- doubly so.
The first concerns dialogue, negotiations. In its
1994 judgement the Supreme Court also had expressed the same pious
faith: ‘‘This is a matter suited essentially to resolution by
negotiations which does not end in a winner and a loser while
adjudication leads to that end,’’ the Court said. ‘‘It is in the
national interest that there is no loser at the end of the process
adopted for resolution of the dispute so that the final outcome does
not leave behind any rancour in anyone. This can be achieved by a
negotiated solution on the basis of which a decree can be obtained
in terms of such solution in these suits. Unless a solution is found
which leaves everyone happy, that cannot be the beginning for
continued harmony between ’we the people of India’.’’ The same
touching faith! Doomed to the same outcome.
But the least that this route requires to succeed
is that the Executive has leeway, that it has a wide enough field
over which it can bring the contenders closer. The Supreme Court in
its 1994 judgement had left this space -- recall, for instance,
the passages regarding the undisputed area. The Interim Order has
snatched that space away completely. And taken into the judicial lap
what the Constitution Bench had realised was not well suited for
resolution through judicial adjudication.
The other omen is of an even darker hue. What the
Supreme Court had held about the status quo being maintained only on
the disputed site, what the Court had said about it being not just
permissible but desirable that the undisputed area be handed back to
its Hindu owners -- all this was important, but of far lesser
importance than another feature of that judgement, a feature that
was of foundational significance.
An argument had been advanced on behalf of
Muslims -- the Court remarked that it had been advanced with
‘‘vehemence’’. This was the familiar assertion that once a mosque
has been built on a piece of land, irrespective of who owned the
plot earlier, irrespective of what might have stood on it earlier,
irrespective of whether the structure had subsequently been used or
not, the land would always be a possession of Muslims.
It was contended that this was the position under
Muslim Law, and therefore this is what must hold in this case
too -- whether a temple stood on the land earlier, whether
namaz had been offered at the site since 1949 etc., all these were
essentially irrelevant questions. And that the acquisition of the
site by the Government for determining its true owners was invalid
on this ground alone: secular laws like the Statute of Limitations,
the laws regarding acquisition of property by the State etc., do not
apply at all to either a mosque or the site on which it was once
built, it was argued on behalf of Muslims.
The Supreme Court dealt in detail with this
question -- because of the vehemence with which this argument
had been advanced, it said. In doing so it laid down three vital
principles. First, it held that what will apply in India is not some
abstraction called Mahomedan Law, but ‘‘Mahomedan law as approved by
Second, it reiterated what Indian courts had from
the British period consistently held in regard to the status of a
mosque: namely, that a mosque is just another immovable property;
that, therefore, the Statute of Limitations applies to it exactly as
it does to any other immovable property, that the sovereign power of
the State to acquire the structure or the site on which it stands is
as unlimited as it is in relation to any other piece of property.
Third, the Court held that even if a structure or
practice is manifestly associated with a religion it shall not be
immune from State action under the freedom of religion guaranteed by
our Constitution -- unless it is a practice essential to that
religion. This vital distinction will come home to us when we think
of the contrast between, say, the Kaba in Mecca and the mosque next
door, between offering namaz and killing cows. The result was
immediate. Citing judgements from even the British period, the Court
established how, for instance, a mosque could be lost by adverse
possession. It showed how even by those judgements it was subject to
the Statute of Limitations. It established how ‘‘A practice may be a
religious practice but not an essential and integral part of
practice of that religion.’’
These principles were of foundational importance.
They were essential correctives to what had come to pass in the name
of secularism. They gave hope that the excesses that had come to be
perpetrated in the name of religion could indeed be rolled back
through the courts -- for instance, the insistence that namaz
shall be offered on public roads, the insistence that slaughtering
cows was a fundamental right that flowed from the freedom of
religion guaranteed by the Constitution.
That is why not so much the Interim Order but the
remarks that fell from the Bench during this hearing are so ominous.
If that is the mood of the Court, these vital principles will
themselves be diluted in the days ahead.
Dialogue and negotiations blocked each time by that
‘‘permanently negative answer’’. And the Courts in the mood of which
the Bench has given us a glimpse. What conclusion will the Hindus
But they must abide by the verdict of the courts,
the secularists say. Will some Hindu in turn not one day tabulate
how many times the Constitution has been amended precisely to
overturn verdicts of the Supreme Court, and throw the number back at
those who keep hurling this counsel at him, and him alone?
Actually, why wait for that anonymous Hindu, dear
reader, why not pre-empt him? Study the 90-odd amendments yourself,
and answer: how many of them have been enacted to reverse judgements
of the Supreme