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Babri Masjid and the shadow of law

What an expensive farce. The curtain has been drawn on the attempt to stall the judgment of the Lucknow bench of the Allahabad High Court.

india Updated: Sep 28, 2010 23:11 IST

What an expensive farce. The curtain has been drawn on the attempt to stall the judgment of the Lucknow bench of the Allahabad High Court. A great drama had started when the Lucknow bench was asked to defer pronouncing the judgment in the Babri case so that negotiations could take place between the various parties to find a solution independent of the legal proceedings. It is possible that some of the stakeholders made an estimate that one part of the judgment was going to go against the Sangh Parivar. This canny sense may have come after discussing the proceedings and the legal pros and cons with those who had a ringside seat when the final arguments were under way. Or, someone was privy to information the others did not have.

On September 17, 2010, the Lucknow bench made short shrift of the argument that the matter be deferred, and fined petitioner Tripathi Rs 50,000. A delayed reaction from one of the Lucknow judges complicated matters. The Supreme Court was approached on September 22, when quixotic feelers were sent out by the judges that negotiations should continue on the assumption that the Lucknow verdict would draw a curtain on everything at the expense of chaos. There was also a suggestion that the impediment that one of the judges would retire could be solved by the retiring judge being reappointed as an ad hoc judge after retirement. How was this going to happen? Would the court order the President to re-appoint the judge? Would the Supreme Court collegium vetting the appointment have to agree? That suggestion was a dangerous non-starter.

Once the box of mischief was opened, Chief Justice Kapadia wisely appointed a three-judge bench consisting of himself (a Parsi), Justice Radhakrishan (Hindu) and Aftab Alam (Muslim) to hear the matter on September 28. In courts, religion does not matter; but this was a good move.

The hearing took place in an overcrowded court with lawyers from the Masjid Action Committee, Sunni Waqf Board, Ram Janma Bhoomi people, the Muslim Personal Law Board and Soli Sorabji, who had earlier appeared for the Muslims and against them as attorney-general. The hearing pushed the parties into taking positions of attrition. But the court, without giving reasons, simply dismissed the matter. Rightly so, because eventually the Supreme Court will hear the matter. Now the nation, the various communities and secularists alike have to face the Lucknow verdict.

This is not a bad thing. In the first place, negotiations and reconciliation on the one hand and the court decision on the other are not mutually exclusive. The earlier negotiations in 1989 and 1991-92 took place in the abstract without examining existing rights. The court verdict will provide a basis for discussions in the shadow of the law. Second, the Lucknow verdict is the end of something and the beginning of something new. There is still an appeal to the Supreme Court. It is likely that appeals will be filed. It is also likely that the Supreme Court will stay the operation of the court decision and maintain status quo. Third, it follows, that the there should be no room for anxiety, riots or violence. There will be lots of time to work out a social solution if the solution provided by the legal verdict is problematic and leaves the social solution inconclusive or even simmering. Fourth, under the Supreme Court's Babri judgment of 1994, the Union government is a statutory receiver to decide what has to be done in the light of decision, not just on the Babri site but also to the adjacent area acquired, which belongs to the Hindus and may have to remain acquired.

Lastly, have our politicians and vote bankers learnt nothing? They have to ensure calm and not provide the excusal that their fundamentalist followers would not listen to. Three facts stare us in face. The destruction of the Masjid on December 6, 1992, was something for which all Indians have to atone. It was not an act of glory. Further, after an act of contrition and apology, truth and reconciliation can only be based on a genuine desire to make amends. We may not follow the Mandela “truth and reconciliation” model. If people confess to the crime, a pardon should cessate all criminal prosecutions. The end solution could be a masjid and a temple; and a secular site to be visited by all from the world over.

Every democracy must treat its minorities well. If you do that, they can live and negotiate with dignity.

*The writer is an eminent Supreme Court lawyer.