Faith can be exploited to defeat justice which is what those who exploit religion want to do. This is why an ordinance to clear the decks to build a Ram temple at Ayodhya in Uttar Pradesh can be brought in the interests of dire necessity but not expediency which is exactly what some communal elements want. And if such an ordinance is ever enacted while the Supreme Court is yet to dispose off 14 petitions challenging the 2010 Allahabad high court verdict, it will definitely be struck down by the Supreme Court.
An ordinance is usually enacted when there is an emergency and Parliament or the state legislatures cannot wait for the normal route of presenting a bill before the house and passing it with a 2/3rd majority vote. But such ordinances have to be ratified within six weeks of the house commences its business, failing which it dies a natural death.
The Supreme Court had refused to grant an early hearing to the 100-year-old dispute over the birthplace of Lord Ram because it had other priorities. In 2010, a special bench of the Allabahad high court had partitioned the disputed area between the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla (or the infant Lord Ram who is also a party to the dispute).
The entire issue culminated in the 1992 Mumbai riots after the Babri Masjid was brought down in December of that year. At the heart of the dispute is the belief that moksha or liberation from unending cycles of rebirth can be achieved by any devout Hindu who dies at the birthplace of Lord Ram.
But faith, politics and law make a deadly concoction and when the top court of the country is seized of this emotive dispute, the BJP government will dare not enact an ordinance to ensure the Ram temple is built to risk the ire of the highest court of the country.
In fact, Hyderabad lawmaker Asaduddin Owaisi, the chief of the All India Majlis-e-Ittehad-ul Muslimeen (AIMIM), dared the government to put out an ordinance “if it had the courage”.His statement came soon after an alleged contemptuous statement by Union minister Giriraj Singh who said “there should be no debate on this… The court is also not needed… I am worried that Hindus are losing their patience, I don’t know what will happen then.” Jumping on the bandwagon, Union law minister Ravi Shankar Prasad said that many in the country wanted the case to be heard quickly.
Giriraj’s alleged statement that “the court is not needed” attracts the punitive provisions of The Contempt of Courts Act, 1971 which declares that even an attempt to scandalise or obstruct justice can be construed as contempt which will attract a maximum sentence of six months in jail.
On September 27, the top court had declined to review a 1994 ruling that the government can acquire land that a mosque is built on as a mosque is not integral to Islam. Many believed that decision meant the temple-mosque dispute can be taken up without any delay.
Intervention applications on behalf of several intellectuals including Shyam Benegal, Aparna Sen and Anil Dharker had criticised the statement of one of the judges who held that the disputed area was indeed the birthplace of Lord Ram. This Allahabad high court judge had declared:
“Once we find that by way of faith and tradition, Hindus have been worshiping this spot as the place of birth of Lord Ram at the site in dispute, we have no reason but to hold in such a kind of historical event that for all practical purposes, this is indeed the birth place of Lord Ram” (paragraph 4407 of the judgment).
But the interveners had said this viewpoint (as all judgments are intrinsically judicial viewpoints based on fact after interpretation of the law) was based on an incorrect appraisal of the crucial issue and could not be decided on the basis of faith and belief or faith but should be based on the rule of law which was a foundation stone of the Constitution.
The opposition Congress’s stated position that the matter is before the Supreme Court and everyone should wait until the Supreme Court decides appears to be the correct position in law. The Hindu hardliners have been demanding that the BJP government should decide on passing of the ordinance and not leave this to Parliament.
“If someone asks for an ordinance, the prime minister has to respond to them, but as you know, he will not respond to any issue”, announced some leaders. The point of view that the Supreme Court should not interfere in matters of faith has been expostulated by Indu Malhotra during the Sabarimala judgment. She was the sole dissenting judge.
But many lawyers have argued that although religion is a matter of faith, the BJP is linking this issue to the vote bank politics which will be a disservice to the nation.
The writer Olav Albuquerque holds a PhD in law and is an advocate-cum journalist of the Bombay high court.