The Supreme Court prioritised communal harmony

https://www.thehindu.com/opinion/editorial/peace-and-justice/article29938535.ece 

Peace and justice: On Ayodhya verdict 

In paving the way for a Ram temple in Ayodhya, the Supreme Court prioritised communal harmony over all else 

There comes a time when the need for peace and closure is greater than the need for undoing an injustice. In allowing a temple to come up through a government-appointed trust at the disputed site in Ayodhya, the Supreme Court has apparently chosen a path most conducive to social harmony. To compensate the Muslim litigants, who were deprived of the centuries-old Babri Masjid through an illegal act of demolition, the court has asked for the allotment of a five-acre plot of land elsewhere in Ayodhya that may be used for building a new mosque. That this is more of moral consolation by way of a political compromise and less of adjudication in recognition of their religious rights is obvious. The final award will always be a source of discomfiture for those to whom closure goes beyond ensuring peace in a communally polarised environment. But what is most welcome about the 1,045-page verdict of a Bench of five judges is its unanimity. For, it sends out a message that the judiciary has, with a single mind, ventured to give legal burial to a prolonged dispute that began as a minor litigation, expanded into a divisive political cause, and became a festering wound on the body-politic for years. The fact that the case is over at last must come as great relief to all peace-loving people.This sense of relief masks the bitter truth that the fear of a Hindu backlash if there was an adverse verdict was genuine. After nearly three decades of unrelenting pursuit of communal polarisation, the majoritarian, revanchist forces in the country have fatigued their secular adversaries into passive acquiescence. The Bench indeed has done well to record its revulsion at two incidentsthat represented an onslaught on the psyche of secular India: the desecration of the masjid in 1949 when Hindu idols were planted surreptitiously under its central dome, and the planned destruction of the whole structure by the foot soldiers of Hindutva on December 6, 1992. But what is most disappointing about it is that the relief spelt out by the Bench may amount to legitimising the very demolition it unequivocally condemns. Having declared that the suits are representative of the two communities, organised violence by one party ought not to have been ignored. It is common knowledge that the Vishwa Hindu Parishad, which spearheaded the temple movement with the active backing of the Bharatiya Janata Party and organised the demolition of the mosque, got a foothold in the litigation through an individual who represented the deity, Ram Lalla, as "a next friend" in a fresh suit filed in 1989.

A reading of the judgment reveals that the outcome is not wholly in line with the evidentiary conclusions the court itself reaches. It notes that archaeological evidence — procured only because excavation was made possible by the demolition and as such not available to the parties at the time of institution of the suits — only shows the existence of a 12th century Hindu religious structure underneath, but does not prove any demolition or explain what happened in the intervening centuries. It acknowledges that namaz was offered at the mosque between 1857 and 1949, and declares that Muslims did not abandon it, but offers no relief even though their religious rights stand proved. The entire disputed area covering both the inner and outer courtyards are awarded to one side contrary to its own conclusion that Muslims had a right, albeit a contested one, in the inner courtyard. While it holds that Hindus had possessory right over the entire outer courtyard to the exclusion of Muslims, it does not decide whether they had exclusive title; on the other hand, it rejects the Muslim claim solely on the ground that they failed to prove "exclusive title". Also, the court says evidence of Hindu worship was available for a period prior to 1857, while there was proof of namaz only after 1857, without accounting for the fact that it was in that year that a massive riot took place that led to the British administration putting up a railing to divide the mosque from the Hindu shrines in the outer courtyard. The case has been decided on the balance of probabilities that Hindus have proved a better title than Muslims. While it is true that "preponderance of probablities" is the standard of proof in civil law, it is doubtful whether this can be invoked to the exclusion of an acknowledged right belonging to the other side.

Courtesy : The Hindu editorial dated 11th November 2019