India’s Constitution secular yes, but courts pandering to Hindu majority demands

At the end of a 135-year time-tunnel through which one of the most fiercely disputed legal cases passed, the Supreme Court’s verdict on the Ayodhya dispute on November 9, 2019, evoked a mixed response even among those who had opposed the “movement” for the Ram temple at the site of the Babri Masjid.

The response on one plane was that of dismay because, after having left no field of evidence and arguments untouched — religion, mythology, history, archaeology, law, governance, and politics — the highest court eventually decided to go solely with the principle that the “possession” of the disputed piece of land was all that mattered, despite it being historically “vested” in another party.

After all, even the apex court accepted that the property that was demolished on December 6, 1992, was the Babri Masjid. Surely, a temple could not have been named after the mosque; so, why was the disputed site handed over to the Hindu party to construct a Ram temple?

Dashed hopes

Yet the judgment gave hope as well. Several parts of the judgment fostered faith that the Babri Masjid may have gone, but at least there would be a full stop on the temple-for-mosque narrative. The agitation for building a temple in place of the medieval mosque in Ayodhya has not only made the Bharatiya Janata Party (BJP) the country’s dominant party, but also altered the way a large number of people in the majority community look upon the minorities and their rights in the country.

Also read: 3 years after SC order, construction yet to begin on Ayodhya’s new mosque

The apex court referred to the Places of Worship Act (PoW Act) and was unambiguous in its understanding that there could be no deviation from the two purposes the law was intended to fulfil when enacted in 1991.

The five judges of the SC said the law “speaks to the future by mandating that the character of a place of public worship (other than Ayodhya) shall not be altered.”

Secondly, the court opined that the Union government was imposed with “a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947 when India achieved independence from colonial rule.”

Furthermore, hope was raised among critics of the SC verdict by the words that the PoW Act imposed “a non-derogable” obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles, of which secularism is a core component.

What about safeguards for shrines?

In the period since the judgment, the construction of Ram temple in Ayodhya has proceeded without further challenges and, in fact, has been aided by various state institutions.

Watch: Ayodhya airport, designed like Ram temple, to be completed by June 2023 

But, the safeguards for other shrines that were believed to have been guaranteed by the apex court’s powerful chant, regarding the virtues of the PoW Act, have more or less fallen by the wayside.

That happened first at Varanasi and now, with the lower judiciary ordering a survey/inspection in a short time of the Shahi Idgah in Mathura, the same process appears to be set for a repeat performance. The 1968 agreement between disputing parties, which ensured the two shrines co-exist side-by-side, appears to have been unilaterally scrapped.

In all the years that the Ram Janmabhoomi agitation thrived in the 1980s and early 1990s, journalists like me found a strange tranquillity in the bylanes of Varanasi, the lead to the Kashi Vishwanath temple. True, the existence of the Gyanvapi Masjid, adjacent to the temple, may have been an eyesore for a few, but the site per se was not disputed.

Muslims had free access to the mosque, and the temple functioned normally, without affecting the devotees of Shiva. Most considered it a quirk of destiny and practically no one pointed accusatory fingers at any individual or community.

But over the past two years, the courts at various levels have contributed to converting the mosque in Varanasi into a legally disputed site. A portion of the fully functional mosque has practically been hived off, and it is just a matter of time before access is provided to Hindus to pay obeisance inside a structure that remains a mosque.

The case filed by five Hindu women seeking “restoration” of rituals like darshan, pooja, aarti, etc., prepares the ground for converting a part of a functional mosque into a de-facto temple, even while a larger suit is heard.

Also read: ‘Shivling area’ at Gyanvapi mosque to remain sealed, rules Supreme Court

A similar process has now begun in Mathura with the survey, and much of the future direction of the imbroglio will be shaped over the next few weeks.

It is unfortunate that after having waxed eloquent on the PoW Act in November 2019, the Supreme Court in May last year stated that ascertaining the character of a place of worship is not barred under the PoW Act.

It needs to be asked if the character of any place of worship is barred from being changed or altered, what is the purpose of ascertaining if the place had been anything else then what it is today?

Why permit scrutiny?

Quite clearly, the petitions that have been filed regarding Gyanvapi Masjid seek to alter its present character. By permitting scrutiny, the apex court has partnered with the lower judiciary into providing a fait accompli for alterations in the mosque’s character, and may even assist in its removal/demolition.

The “repeat performance” of the lower courts in Mathura is likely to come up before the higher judiciary at some point. But since there is the precedent of the aforementioned observation with regard to the Gyanvapi Masjid, the same may be stated — that the character of the Shahi Idgah will be “ascertained”.

If it is done, the proverbial sword of Damocles will hang over the Shahi Idgah, because of the claims of the self-appointed representatives of the Hindus that the mosque was built after demolishing a temple and, therefore, it must be restored.

Also read: Krishna Janmabhoomi row: Mathura court orders survey of Shahi Idgah mosque

A similar sequence of events is likely to emerge regarding the Bhojshala in Madhya Pradesh and the Malali Masjid in Mangalore where, too, there are claims of the presence of Hindu temple-like structures. Legal petitions for the control of these two shrines have already been moved by various parties that claim to be representative of the Hindus.

The moot point is if the same sequence of events are to be repeated one after another in Islamic places of worship, will significant sections from among the majority Hindu community push back the RSS-BJP’s majoritarian narrative?

For the moment, those who do not support the Sangh Parivar’s politics of communal polarisation say Muslims, other religious minorities, and secular Hindus will be left with no safeguards.

Where can these people with equal rights turn to if the apex court of the land first sings paeans to a law or an Article of the Constitution and then not only does not defend it, but also supports the act that undermines it?

How many are “baaki”?

Questions thus arise whether references to the PoW Act were made merely to hoodwink those who may not have agreed with the 2019 Ayodhya judgment.

What makes the matter suspect is the fact that the Supreme Court is simultaneously hearing a petition that challenges the PoW Act and wants it declared unconstitutional.

Given the progression of the majoritarian narrative and the fact that institutions that are supposed to safeguard the nation’s foundational principles are instead beginning to fall in line with mainstream thought, the current narrative appears set for a free run for some more time.

Also read: Modi inspects construction of Ram Temple at Ayodhya, takes part in Deepotsav

There was a time when Hindutva hotheads coined the slogan that Ayodhya was just the trailer (jhanki) and Mathura-Kashi were to be followed (baaki hai).

Now it appears that Mathura-Kashi are also the preludes of more of the same to come.

(The writer is an NCR-based author and journalist. He tweets at @NilanjanUdwin)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)