First the Masjid disappears, then the law

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
ome 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.

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