The Hindu : The apex court's Ayodhya burden

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Wednesday, Feb 19, 2003

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The apex court's Ayodhya burden

By Harish Khare

The Judiciary's obligation is to summon the wise words and the commensurate constitutional innovations to re-enforce the sanctity and legitimacy of the rule of law.

THE AYODHYA ball has once again landed in the Judiciary's court. Rather, the Ayodhya ball has been lobbed before the apex court's Constitution Bench by a Central Government that wavers between political cleverness and constitutional timidity. Because of the Vajpayee Government's obsession with unprincipledness, the Supreme Court is about to be tested, just as most other constitutional institutions were tested in recent years and mercifully stood their ground. The long and short of the Government's Ayodhya application before the Supreme Court (scheduled to be taken up on February 21) is that the court is being asked to provide aid and comfort to those who have no faith in democratic values or the rule of law. The Government tried the same trick last year and got a well-deserved judicial rebuff.

Their Lordships can be trusted to see through the Government's political cunning as well as through the VHP's propaganda that the so-called "undisputed" land belonged to it. Though technically the VHP is not a party in the legal dispute before the court, its leaders have arrogated to themselves the right to insist on how the law of the land would have to conform to their "feelings", supposedly anchored in their "faith". But the VHP's long record of bluff and bluster need not detain the Judiciary; it is the Vajpayee Government's abuse of its position (as a neutral enforcer of the law) that their Lordships would be duty bound to dis-reward.

The Vajpayee Government's opponents have accused it of going to the Supreme Court purely with an eye on the electoral benefits in the coming Assembly elections. This is a matter between the BJP and its rivals; the Judiciary cannot and should not be concerned with this or that political party's manoeuvres, except taking precaution against blatant exploitation of judicial prestige. But it should be obvious to one and all — not excluding those in the judicial fraternity — that the Vajpayee Government's legal tactics are in response to the calibrated pressure mounted by the VHP. The Government in fact did not have to wait for the President to read his address to the joint session of Parliament before appealing to the Judiciary to "expedite" the Ayodhya dispute. If the Government was sincere in an early resolution of the dispute, it could have made the same plea before the Supreme Court anytime earlier than February 5/6; it certainly was aware that the so-called Dharam Sansad was scheduled to meet in the last week of February 2003. The Government is also not unaware of the VHP's deliberate reluctance to state publicly that it would abide by the judicial verdict in the Ayodhya matter.

Yet, the Government has invoked the Judiciary on the eve of the Dharam Sansad in the hope that the Lordships would pull its chestnuts out of the Ayodhya fire. May be after the Gujarat verdict, the Vajpayee establishment is genuinely scared of the VHP's capacity to work up the mobs; may be the BJP-RSS crowd is unwilling to risk the displeasure of the "revered" sadhus and sants. Whatever the Government's fears and whatever the VHP's calculations, the Judiciary's obligation is clear and unambiguous.

This obligation is to summon the wise words and the commensurate constitutional innovations to re-enforce the sanctity and legitimacy of the rule of law in this ancient land. The obligation becomes even more urgent because the present phase of the Ayodhya imbroglio is characterised by an aggressive assertion of the power of "jan shakti". This mythical "jan shakti" is asserted to be superior to the "raj shakti''. And, of course, there is a thinly disguised threat that the potency of this "jan shakti" can always be demonstrated by trishul-rattling violent mobs in the streets. This is the crux of the current application of surrender the Vajpayee Government has made before the Supreme Court.

It is possible to argue that if the VHP and other self-appointed guardians of the "Hindus" are so unwilling to submit themselves to the Judiciary and its verdicts, they are only following the equally unwholesome precedent set by the Muslim leadership in the wake of the Shah Bano case; if Muslims "mobs" could unnerve a Prime Minister who had more than 400 seats in the Lok Sabha why should Hindu "mobs" not stampede a Prime Minister who presides over at best a wobbly coalition? If the Congress could practice duplicity and timidity why deny the BJP a similar shot?

This is a politician's argument; the judicial functionaries have an obligation to rise above the partisanship or passions of the moment. Nor can the apex court worry too much about the Prime Minister's vulnerability.

Apart from this crowding in by the mobs, the institutions of law have been coming under pressure from another source, which can perhaps be called the Mahatma tradition. Ever since the Indian republic was founded, the legitimate authority had to contend with those who claimed to speak in a "moral idiom". The "moral voices" have a tendency to elevate themselves above the procedural exactness of legal institutions.

A Jayaprakash Narayan would arrogate to himself the right to demand that the elected Government in Bihar be dismissed; a Morarji Desai would go on a fast unto death, insisting that the Gujarat Assembly be dissolved. Those were the pre-Bommai case days; the republic was still to settle down to constitutional habits and legal constraints. After 50 years, there is no need for the Judiciary to give the time of the day to anyone who assumes immunity from the purview of the law of the land.

We are not yet finished with the Mahatma tradition; the RSS, for instance, continues to exercise the right — and is conceded the right — to dictate to the democratically elected Government and its Prime Minister how to behave. This extra-constitutionalism can have no place in a polity based on the rule of law.

Yet, it can be asked that if the Judiciary has the sacred obligation to uphold the Constitution, what about the duty of the law (and its institutions and officers) to help resolve — and, if possible, dissolve — conflicts in society? There is some merit in castigating the Judiciary for taking so long in deciding the legal dispute about Ayodhya/Babri Masjid provenance. Ironically, the charge is made by those very people who use the delay-prone legal mechanism (such as the selective use of inquiry commissions or filibustering the CBI probe in the Ayodhya case) for partisan purposes. Nonetheless, it is unfair to single out judicial procrastination only in the case of the Ayodhya dispute.

Resolution and dissolution of conflicts in society is the responsibility of the politicians, who double as administrators, parliamentarians and occasionally as statesmen. The Judiciary can only be expected to ensure that the legal playing field was levelled, and that the state stayed firmly in the neutral role; inversely, the Judiciary is enjoined upon to ensure that those who manage to capture state power do not misuse their legitimate authority. It is, then, the burden of the court to rescue civil society and the polity from destructive narrow-mindedness. The issue at stake goes beyond the Vajpayee Government's dilemma vis-a-vis the "mandir crowd". As a civil society we all have to be tutored in the logic and restraints of the rule of the law; past mistakes, deliberate or unconscious, cannot give a licence to be undisciplined or unlawful. The crux of the matter before the Judiciary is to insulate the polity from the kings who are unable or unwilling to live up to the canons of their raj dharma.

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