Constitutional morality is often juxtaposed with social and popular morality, to emphasize that in case of conflict between the two, the latter must yield in favour of the former. This also reflects the heightened place accorded to constitutional or legal morality. The constitutional imperative of legislations which are inconsistent with fundamental rights and constitutional amendments...
Constitutional morality is often juxtaposed with social and popular morality, to emphasize that in case of conflict between the two, the latter must yield in favour of the former. This also reflects the heightened place accorded to constitutional or legal morality. The constitutional imperative of legislations which are inconsistent with fundamental rights and constitutional amendments which are inconsistent with the basic features of the Indian Constitution, being unconstitutional and hence void, further bolsters the place of constitutional values over political opportunism, to which the legislations or constitutional amendments remain susceptible. The enforcement task of this legal morality is bestowed upon the courts. The complicity of Courts, therefore, to impliedly advance or endorse an outcome which is contrary to the essence of legal morality is awful. The outcome of such judicial intervention remains problematic but what is even more disconcerting is the façade of amorality to the outcome accorded because of the judicial intervention.
The unanimous 5 judge Constitution bench judgment of the Supreme Court in M. Siddiq v. Mahant Suresh Das (Ayodhya Ramjanmabhumi case) 2019, gave the title to the Hindu side (Lord Ram Lalla) over the entire land including the place where Babri Masjid stood before its demolition. The validation of the Hindu side's claim by the Supreme Court accorded an amoral and apolitical character to the finding despite the contested and debatable reasoning applied by the Supreme Court of India. A political act despite its lack of amorality and partisan approach has the merit of candour. On the other hand, the nuance in judicial reasoning is often masked, as it is juxtaposed with the central claims and the decisions in respect of it and the decisions invariably embrace the façade of amorality. For example, the observation by the Supreme Court in the Ramjanmabhumi case that the destruction of Babri Masjid was an 'egregious violation of the rule of law' got lost in the decision of the court that even the place where the Mosque stood belonged to the Hindu side. The judicial resolution of the political disputes brings an uneasy and forced closure to the dispute. However, it is also pertinent to note that if the Supreme Court's decision would have been the other way around in this case, very likely, the closure would not have been there. For example, the judgment of the Supreme Court in the Sabarimala Temple case is yet to be enforced despite there being no stay on it. Even the finality, therefore, of the Court's verdict would depend upon the political power that it affects.
It is in this context the decision of the Varanasi District Court given on 12thSeptember 2022 is again disconcerting. The District Judge of Varanasi was asked by the Supreme Court of India to decide the objection raised against the maintainability of the suit filed by certain female Hindu devotees to allow them to worship and perform all rituals of Maa Sringar Gauri, Lord Ganesh and Lord Hanuman and other visible and invisible deities within old Vishwanath temple complex situated at settlement plot no. 9130 where the Gyanvapi Masjid stands for nearly 600 years. The objection against the maintainability stems from the provisions of the Place of Worship (Special Provisions) Act, 1991 which mandates a bar on the conversion of places of worship as it stood on 15th August 1947. Section 4(2) of The Act categorically states that "…no suit, appeal or other proceedings concerning any such matter (concerning the conversion of the religious character of any place of worship, existing on the 15th day of August 1947) shall lie on or after such commencement in any Court, tribunal or other authority."
Before, going into the text of the provision, we must know why the legislation in the first instance was brought. Moving the Bill in Parliament, then Home Minister S. B. Chavan said: "It is considered necessary to adopt these measures given the controversies arising from time to time about the conversion of places of worship which tend to vitiate the communal atmosphere… Adoption of this Bill will effectively prevent any new controversies from arising in respect of conversion of any place of worship…". It is also important to keep in mind that the Act was enacted at the time when the Ram Mandir temple issue was at its peak and Mr L. K. Advani was arrested in Bihar on his way to Ayodhya as part of his RathYatra for the cause of the construction of Ram temple.
The Varanasi District Court has accepted the argument advanced by the plaintiffs that on 15th August 1947, the Gyanvapi Masjid was not exclusively a Muslim place of worship; until 1993, Maa Sringar Gauri and other visible and invisible deities were worshipped incessantly and after 1993 till today, once in a year as per the regulatory orders of the State of Uttar Pradesh. Therefore, the Place of Worship (Special Provisions) Act, 1991 does not operate as a bar on the suit of plaintiffs. This kind of literal reading of the provisions of the 1991 Act is contrary to the object and reasons of the Act and it is the general rule of statutory interpretation that if the literal interpretation of the law leads to a consequence which is contrary to the object of the law, then the literal interpretation is to be forsaken. Ironically, the District Court does not even refer to the object of the 1991 Act. This kind of reading of a provision of legislation in an isolated silo bereft of its object is flawed. The legislation was enacted to nip such suits in the bud. Even in the Ramjanmabhumi judgment, the Supreme Court had observed:
"There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of the places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future."
The Varanasi District Court referred to the Ramjanmabhumi judgment in its order while addressing the question of the Places of Worship Act but did not refer to the reference in the judgment to the Act. The Ramjanmabhumi judgment was referred by the District Court in respect of the juristic personality of a Hindu deity to hold property as the owner regardless of the destruction of the idol. It is significant because it impliedly hints at the arbitrary fixing of the timeline by the 1991 Act to be 15th August 1947. It is important to note that the plaintiffs have averred in their plaint that the Mughal ruler Aurangzeb constructed the Gyanvapi Masjid after destructing the part of Vishwanath temple, which the District Court has also alluded to. The reference to the judgment of the Supreme Court in Dr. M. Ismail Faruqui v. Union of India, 1994 highlights that the Mosque is not an essential part of the practice of Islam and that Namaz can be offered anywhere, even in the open, which is intriguing as it appears devoid of any context in respect of the issue to be decided. The hidden context could be the superiority of the Hindu cause of worship in the Mosque which is not essential to Islam. The reference by a District Court in Order 7, Rule 11 of the Code of Civil Procedure matter, to a judicial precedent of Constitutional Law is also significant.
The District Court also rejected the challenge to the plaint claiming that it is barred by Section 85 of the Waqf Act,1995 which bars the jurisdiction of the Civil Court in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal. The Court accepted all the arguments of the petitioner without individually going into its merits. One of the arguments of the plaintiff was that it is undisputed that no waqf can be created over the property belonging to and vested in the Hindu deity and a mosque can be constructed only on waqf property. There is no evidence up till now that Aurangzeb had created any waqf for the construction of the mosque. Therefore, the Muslim community is an encroacher of the land and they have no right to use the land for the performance of any religious act concerning the Muslims. Acceptance of the central claim that the suit is not barred by section 85 of the Waqf Act without any scrutiny of the specific arguments leaves one wondering about the stand of the Court in respect of the arguments advanced. However, the lack of engagement impliedly suggests the acceptance of the Court.
Judicial resolution of religiously polarised political battles does not augur well for the health of the Indian judiciary. The inevitability of the order not attaining finality in the event of it being opposed to the interest of the religious majority and the inevitable attaining of finality when the decision is against the religious minority militates against the mediation of such matters by the Court as the neutral arbiter. The lack of finality, notwithstanding, the court must not become complicit in reinforcing the narrative of majoritarian politics by becoming instrumental in masking the complexities underlying the issues for resolution and according to it a mirage of amorality.
Manwendra K Tiwari, Associate Professor, Dharmashastra National Law University
(Views are personal)