By Shafeeq Rehman Mahajir,
In the Ayodhya matter, has the judgement of the Allahabad High Court unwittingly taken the law to the ideological right, and conferred legitimacy on questionable doctrine of majoritarian supremacy, while at the same time succeeding, I cannot say inadvertently or otherwise, in concealing it ? Are the judges of today capable of being seen as magicians creating illusions that make settled principles of jurisprudence magically disappear ? The verdict has the distinction of leaving us wondering if we are watching an illusion, in effect, though obviously such a situation would never have been ever intended by any Court, to distract the citizens from seeing the truth, the whole truth and nothing but the truth. Why is it said that justice must not only be done but it must be seen to be done ? That is because the message matters as much as the outcome. In the Ayodhya matter, the judgement of the Allahabad High Court has with consummate skill allowed certain established principles of civil law to go for a toss, caused the law to morph before the very eyes of a stunned section of the country’s population, even as the right itself was delirious at what it could hardly believe was happening.
Magicians have certain stock tricks and are adept at creating illusions so that audiences reach the conclusions magicians want. The judgement by picking stands and claims so devoid of any verifiable content and so completely divorced from the normal realm of evidence, proof, documentation, verification, legal sustainability, precedent, etc., and alleged facts so impossible to prove, walked such a perilous path that it appeared to it perfectly logical to resort to reliance on blind faith… and in doing so it created so compelling an illusion that it successfully blinded itself to not only binding precedent but also threw overboard all canons of judicial propriety in decision making, to such an extent that from that warped viewpoint, only one outcome seemed possible. Then it seems to have used the reasonable-seeming outcome to reverse engineer “reasons†to “decide†the matter in the way it did and the result was to inadvertently push the law in the right direction.
Just about all that most Indians will be interested in, in the matter of the Babri Masjid – Ram Janam Bhoomi case, is who won or lost  the outcomes of the cases. The court perhaps omitted to keep in mind one other crucial factor : any judgement as a tool of legal thought-shift is powerful because ratio decidendi of judgements forms the legal maze in which the citizens must in future navigate for securing their rights. So, while most public discourse is confined to simplistic issues of who won and who lost, the courts in fact write legal manuals to govern the future of a billion people, impacting (now in unsettling ways at that) what the legal fraternity smugly believed were settled jurisprudential principles of limitation, res judicata, dispossession of persons in settled possession being by only another provided that another could prove better title, lis pendens (no party can transact to affect any other party during the course of litigation), evidence, probative value and more.
Given there was a mosque there for four centuries and a half, given the rules of evidence, given the doctrine of lis pendens, given the problem of limitation, given the problem of a video record of demolition of the mosque by illegal means, the judges came up with a brilliant solution : ignore the demolition of 1992 altogether and focus on the alleged demolition of centuries in the past… So what if there is no proof of that alleged demolition ? So what if there is no proof of who executed that alleged demolition ? So what if there is no proof, if even there is actual controversy, about a specific place being a birthplace as claimed ? So what if there is no proof of that alleged structure allegedly demolished being a temple ? Shift focus from 1992, of which time and act of demolition there is available evidence, to another century, another set of allegations (as against proved fact) of which there cannot be any proof… and fall back on the legally dubious and logically questionably theory that because it is the faith of millions it must be accepted. Behold, the magical result is there ! What cannot be, suddenly is ! What is, suddenly disappears… and there is “justice for all†!!
Arre bhai, koi aur kyaa karey ? What’s a judgement by a set of conservative justices to do, faced with a nation on the boil, an issue that is insurmountable, a 1994 Supreme Court refusal to answer a reference but to rush in where a Higher Court declined to tread ? Unaware perhaps that by their judgement they erode the Law, all the while the set of conservative justices assiduously wrote volumes in the convenient belief that the integrity of the very nation itself was otherwise in jeopardy. But to enable the set of conservative justices to do their amazing work without itself getting caught in the nets of precedent, law and logic, the judgement has been brilliant at choosing to present resounding in its content only those claims in which what the alleged invaders did centuries ago was not just clear, but clear enough to adequately to sustain a legal argument on, whereas what was seen in 1992 was… wait, how could the judgement wish that away ? Simple – it did not ! It caused learned judges to simply ignore the demolition of 1992 !!
What the judgement achieved is so fantastic, you would be amazed beyond your imagination ! While the nation is watching, the Constitutional mandate of upholding the law is sidestepped skilfully, the principle that a change in situation during litigation cannot inure to the advantage of any party is quietly buried, four centuries and a half of history is disbelieved, mythology is elevated to the status of fact, the rules of evidence are scuttled, the doctrine of lis pendens disappears, the problem of limitation is overcome, the video record of demolition of the mosque by illegal means evaporates, so the learned judges can then turn their attention to the task they set themselves – preserving the national peace while the judgement continued at its task of destroying the rule of law.
Obviously the learned judges had no faith in the capacity of the executive to ensure peace, prevent outbreak of violence… After all, they did have as a stark reminder a precedent : the precedent of a State Government holding out to the highest Court in the country the guarantees and assurances of the protection of the mosque, and the grand spectacle of that edifice come crumbling down… So how could any Court now rely on the executive ? They had to ensure peace themselves ! So what if that is not the mandate of a Court ?
Did you think the reference to “the grand spectacle of that edifice come crumbling down†was a reference to the mosque that was demolished ? No, since the judgement chose not to refer to it I will not either – my reference is instead to the edifice of Rule of Law. What was reflected in that act of demolition of the mosque was aggravated first by the very majesty of law being trampled upon by a State that breached undertakings given to a Court, aggravated further by a Court that did not react. When mob violence takes over, reason, logic and law take a back seat, and edifices do come crashing down. That is in essence the way the mob works. Which is why decisions in disputes are not left to mobs to take, for fear that those decisions taken by mobs would not correctly be reflective of what the law prescribes, what the decisions of past stalwarts of legal and constitutional thought have held, and what would uphold the highest traditions that once prevailed in the land. Decisions in disputes are therefore left to Courts of Law.
Courts of Law to operate on the basis of Law. If however, judgements of a Court of Law were to proceed to do to the edifice of the majesty of law and to Rule of Law exactly what a mob did to the edifice of the mosque, would what happened to the mosque not also happen to the structure of the Law as we know it ?
So who thinks it is the Sunni Muslim Wakf Board that is affected by the judgement, or the Amrohi Akhara, or the Ram Lalla idol ? The persons affected one way or the other by the demolition of the mosque may be those, but the persons affected by the demolition of Rule of Law at the hands of the judgement are the likes of you and I, make no mistake of that !
If a right is claimed and denied, the law step to correct any imbalances. Sorry, let me correct myself, the Law would have stepped in to correct imbalances. Now, with a verdict of three learned judges vapourising so many legal principles at one stroke, what will now step in will be not Law as we knew it, with inconvenient doctrines and principles and requirements of evidence and proof and so on and so forth disrupting national harmony, but Law as we now are told it shall henceforth be : the belief of millions shall be the effective substitute for the law. With that substitute there is miraculously achieved, before your very eyes, a magical transformation, a legal-morphing causing the law of the land to disappear and stand substituted with the belief of a majority of the people living in the country.
Three litigants got three months’ more time to settle, or else. The country got for free the magic of the disappearing legal rules ! Ab Supreme Court jaaiye, das saal wahaan latgegaa maamlaa… by which time the magical result of today would have been operational for a decade ! And who ever saw anything once granted in our country being taken back again ?
The conservative judgement couldn’t simply overrule the problematic legal issue of an inconvenient set of “precedents” staring at the judges : faced with the national uproar both ways, for and against the verdict, no one notices the silent but crucial collapse, at the hands of the judgement, of settled legal principles. Court decisions based on highly fragile, judicially unknown and logically unacceptable lines of reasoning will unfortunately invariably impact all who live in a land with “millions†subscribing to certain beliefs. If the faith of those millions is to be the determinant of what is proper and what is not, then things like law, precedent, judicial decision making, rule of law, etc., pale into insignificance and stand substituted by an uncertain, absolute, unverifiable, impossible-to-prove something else – the will of the majority. That spells the end of the India that Babasaheb Ambedkar, Bhagat Singh, Mahatma Gandhi, Moulana Azad, Swami Vivekanand, and others of that calibre thought would come into being. We are now looking at a dubious legal construct based on a thought-shift from the secular to the fascist, from the multicultural to a monochromic, from the inclusive and pluralistic to the exclusionist. What we leave for our children is up to us but one factor is not a variable : if we are not to allow a malevolent drift, we need to act before it is too late.
