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Ayodhya: An Unconscionable Bargain

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The Wire
22nd October, 2019 07:00 IST

At long last, the hearings in the title suit of the Ram Janmabhoomi-Babri Masjid case have come to an end. The dispute, revolving around the title of the land on which the mosque now stands, was decided in 2010 by a three-judge bench of the Allahabad high court.

The high court verdict, which divided the land equally between the three claimants, i.e. the Hindu Mahasabha, Nirmohi Akhara and the Sunni Waqf Board, was challenged before the Supreme Court. The hearing before a five-judge bench of the Supreme Court ran continuously for 41 days, encompassing as much debate as drama, with the Court having reserved its verdict, likely to be published before Chief Justice Ranjan Gogoi’s tenure ends on November 17, this year.

In the midst of this, the Sunni Waqf Board has filed a settlement proposal with the Supreme Court on the final day of the hearing. This development took many by surprise, since a court-appointed mediation process led by retired Justice Ibrahim Kalifulla, Sri Sri Ravi Shankar and senior advocate Sriram Panchu had failed to previously reach a compromise between the parties.

Reportedly, the Viswa Hindu Parishad (VHP), which has made similar demands of converting mosques to temples at other religious sites such as Kashi and Mathura, has already declined this offer at reconciliation, though it is unclear as to how this proposal affects the court’s decision, if at all.

Also read: ‘Kashi-Mathura Baaqi Hain’: Why the Ayodhya Verdict Won’t Offer Any Respite From Saffron Hatred

The settlement proposal, which surrenders the Muslim claim to the disputed land in exchange for a guarantee by the Viswa Hindu Parishad that no other mosque shall be similarly targeted, is a classic case of an unconscionable bargain. Defined as “a bargain or contract which is clearly unfair, exorbitant, harsh, contrary to common sense or good conscience”, this concept encapsulates circumstances where, due to a difference in bargaining power, parties enter into an agreement – the terms of which are so unfair so as to shock the conscience of a reasonable person.

In the backdrop of the religious polarisation, violence and intimidation that has characterised the Ram Janmabhoomi movement, it is easy to see how the fears of the minority, which has long contested this case, have come to the fore towards the end. The Waqf Board has made a gesture in a desperate attempt to ensure the physical safety of their other sites of worship, and is asking for a guarantee against violation of their fundamental right to worship and maintain their religious monuments.

Also read: Ayodhya Case: Pressure Tactics in Mediation No Substitute for Legal Process

A dangerous presumption lies behind this gesture – one that presupposes that any act of violence against Muslim places of worship by the Hindu Mahasabha or its ilk shall not be quashed by the state through executive action, as it is constitutionally bound to do. This fear is not unfounded, since the perpetrators behind the destruction of the Babri Masjid are yet to be brought to book, decades after the incident.

To the contrary, most of the BJP leadership present at the site on that fateful day have been rewarded with cabinet berths and have gone on to occupy constitutional posts. Thus, while no number of guarantees by the Hindu Mahasabha ought to provide any solace, it seems to the desperate members of the Waqf Board as the only ray of hope in the face of state inaction and complicity. What the Waqf Board must realize, however, is that coercion cannot be the basis for a valid agreement, and such an agreement, if made, shall be stillborn at best.

The lengthiness of these proceedings is indicative of the importance of the judgement in store. Second only to the hearings in Keshavananda Bharati’s case, the court’s emphasis in hearing this matter in detail underlines the socio-political significance of the Ayodhya-Ram Janmabhoomi issue and its centrality to our national discourse over the past three decades.

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Supreme Court of India in New Delhi. Photo: PTI

Interestingly, the Keshavananda Bharati case was related to the crucial question of whether the parliament has unlimited power to amend the constitution, where the court’s verdict placed limitations on such an unbridled power exercised by the legislature. The case, which, if decided otherwise could have altered the democratic structure of the nation, marked a watershed moment in Indian history.

Notwithstanding the political import of the present dispute, in terms of constitutional or legal significance it comes nowhere close to that of Keshavananda, a fact not unknown to the apex court. In fact, it can be argued that were the court to decide this matter even a year from now, it would make little difference to either party, since the disagreement has been alive from the colonial era without effective reconciliation.

Also read: Ayodhya Title Dispute: How the Case Unfolded in the Supreme Court

That the highest judicial body of a secular polity decides to devote its undivided attention for 40 working days to an essentially private religious dispute – when it has been subjected to much criticism regarding the backbreaking pendency of undecided cases – and at a time when the nation is reeling from the shock of an almost unprecedented economic slowdown and joblessness, does not speak highly of the court’s sense of priority.

The curious decision to fast-track the case is equally disconcerting. The government has been demanding for a while that the case be heard with urgency, and Chief Justice Gogoi announced that continuous hearings would be held from August 6. With the CBI investigation of the Babri demolition ongoing, when the SC, with several key matters pending before it, decides to prioritise the title dispute over all else, it is making a statement.

In the instant case, that statement seems to be that the decision in this property dispute is more important to it than the criminal act of disfigurement of a monument of religious and cultural significance. Irrespective of the identity of the perpetrators, the destruction of the mosque seems to have less consequence than the question of property rights over the land on which it stands.

When the highest court in the land sets the tone of the discussion in this manner, it serves to validate the view that the ends justify the means, contrary to the established benchmarks of the rule of law. The effect of the court’s positioning suggests that those who want the temple enough to destroy a mosque and take the law into their own hands, may yet fulfil their desire to see a temple erected by court order and finally, may or may not end up in jail within their lifetimes.

Also Read: Priority Peace, Ayodhya’s Muslim Litigants Say New Mosque Can Wait ‘Even if We Win’

This subtext of fait accompli has almost become a hallmark of the Supreme Court’s decision-making in recent times – starting from Jayalalitha’s case to the Aadhaar verdict. The court’s misplaced priorities have led to its decisions becoming infructuous in these crucial matters and resulted in the rapid reduction of its own importance.

The current court is already is a far cry from the activist judiciary of yesteryears, which had helped cement the court’s position as the preeminent protector of civil liberties. If it continues in this trajectory, there is little chance of it restoring its position from a formal court of law to an actual court of justice, as it was designed to be.

Agnidipto Tarafder is an assistant professor at the West Bengal National University of Juridical Sciences, Kolkata.

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