A risky case in point

The art of advocacy consists of not only saying the right thing, but also of saying the thing, rightly.

A risky case in point

Faith vs law: The judgment has missed a chance to persuade all sections of India on the justness of the path that it propounds.

Sanjay Hegde

Sanjay Hegde
Senior advocate, supreme court

The art of advocacy consists of not only saying the right thing, but also of saying the thing, rightly. My senior, the late G Ramaswamy, used to illustrate this point with a story from Ireland. Two boys asked a Catholic priest the same question at different times with differing results. The first one asked, ‘Can I smoke while I pray?’ He received in response a slap. The second asked, ‘While smoking can I also pray?’ He was told with a smile, ‘You can talk to God anytime.’ Two days after the Supreme Court’s Ayodhya judgment, it is still unclear if the court did the right thing, and did it right. However, it is becoming increasingly clear that it did not say it right.

First reactions to the judgment were largely positive, marked more by an overwhelming national desire to maintain peace. As the evening went by, somber reflection began taking over.  Those who wanted to celebrate claimed the undoing of a historic wrong. Those who felt that there was nothing to celebrate decried the peacemongers, as those who had sold out. The overwhelming mass that simply wanted to move on decided it was peaceful enough to move on. 

Irrespective of our ideological viewpoints, what must be admitted is that the judges have laboured hard at finding unanimity. They have produced a detailed judgment that considers all the evidence and records all arguments. Authorship of the judgment is not claimed by any single judge. All five have subscribed to its authorship. One unnamed judge has penned an addendum, from which none of the others have dissented from, nor have they joined in it. Thus a united judicial front has been achieved, at the cost of accommodation of dissident opinions, and by the procured complicit silence of the otherwise outspoken.

Former Chief Justice PN Bhagwati was once asked by a senior advocate as to why his path-breaking judgments, which enunciated new principles, never gave effective relief to the affected party in those cases. His response was that his brother judges would endorse any reasoning by him, as long as he agreed with them on the eventual order of dismissal. He therefore used these opportunities to develop the law, in terms of precedents for the future. Judged against that touchstone, this Ayodhya judgment sets risky precedents for the future.

This 1,045-page judgment, with foreordained relief, is a judgment where no judge fully speaks out. It is as though the judges first decided on unanimity, and then decided on the ultimate award of allowing a temple at the site by accommodating the mosque elsewhere. After arriving at the result, they proceeded to set out their reasons. In doing so, they have not displayed any vision of the Bhagwati kind. The judgment is rather a comprehensive detailing of pleadings and submissions, with no attempt at persuading the nation about why relief was fully granted to only one side, and the other was fobbed off with a peace offering, and an acknowledgement of past wrongs. It has missed an opportunity to persuade all sections of India on the justness of the path that it propounds. 

While attempting a balance between the law and faith, it has probably diminished the public’s faith in the rule of law itself. The judgment does not tell us why, even after holding that the mosque was desecrated in 1949 and demolished in 1992 after violating solemn undertakings to the court itself, the court has yet chosen not to restore the status-quo ante. While the court holds the idols to have been wrongly placed in 1949, it yet grants title to the deity based upon its worship by believers prior to 1857. The court says that the mosque existed from 1528, but exclusive worship by Muslims in the inner courtyard before 1857 has not been proven. It also grants title to the deity on the curious logic that on a balance of probabilities Hindu devotees had access to the inner courtyard of the mosque prior to 1857. Based upon a theory of joint usage, it proceeds to grant title to both, and grant usage hereafter to only one side. The other side has been given an alternative that it never asked for. 

The court was asked for a judgment on law. It appears to have moulded its relief upon administrative policy instead. Rather than decreeing two suits and moulding the relief, in a lopsided manner, the court could well have dismissed all suits as having been unproven. The result then would have been that the land would have vested in the government to do as it pleased. The court could well have avoided the political thickets, and left it to administrators and the law and order machinery to fashion an administrative solution by consensus or otherwise.

The judgment has interposed the court firmly into the politics of the nation. The court has taken upon itself a problem-solving jurisdiction, in a way which will cause problems for the court itself. If it’s a solution that holds, at every stage of the process, the court’s jurisdiction will be invoked through fresh litigation. But, if it’s a solution that does not hold, the situation will, at the very least, render the institution vulnerable to charges of being susceptible to majority appeasement.

The court has now foregone the option of refusing its jurisdiction in a dispute that lacks judicially manageable standards. It must be recollected that in the earlier Constitution Bench decision of Ismail Faruqi, delivered in 1994, shortly after the demolition of the mosque, the court unanimously refused to go into the question posed in the Presidential Reference: ‘whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?’ Justice Bharucha famously wrote, ‘Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it.’

A quarter of a century later, the Ayodhya storm has still not passed, but has the dignity and honour of the court been compromised? Time will tell, and historians record, if the judgment has ensured ‘peace in our time’.

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