Hindus and Muslims must give up rigid positions on contested places of worship

Going by the ground realities in the country, Muslim citizens cannot keep sailing against the tide. There is no use loudly invoking provisions of the nation’s professedly secular Constitution. That quasi-secular charter of governance adopted over seven decades ago includes several religious concessions for chosen communities and leaves ample scope for their reasonable expansion. Time and again it has been modified — well over a 100 amendments in 70 years — and keeps the doors open for further changes. Devised by the first-generation nationalists, this statute of governance may not be seen now as a sacrosanct rulebook, perpetually binding on all future generations. No jurisprudential discourses on interpretation of statutes can perhaps dissuade the present-day nationalists from reading its provisions in accordance with their ideology.

The Places of Worship (Special Provisions) Act of 1991, as a parliamentary legislation, has even an inferior status. However, in the Ayodhya temple case decided in 2019 by a five-judge bench of the Supreme Court it was projected as a law falling within the parameters of the inviolable basic structure of the Constitution. This doctrine of constitutional jurisprudence was laid down by an 11-judge bench of the court half a century ago. It is to be seen to what extent can this doctrine and its possible dimensions be preserved by the apex court in the present-day circumstances.

What is, then, the way out? The solution indeed lies in the thinking and conduct of — to use the Constitution’s prefatory terminology — “We the people of India” who together constitute this great nation. It is for us to join hands to preserve peace in our beloved nation, no matter what cost is to be paid for it. Religious freedom here has its own limits for all, be it any particular minority or the dominant majority. Obstinacy and fanaticism on either side will lead us nowhere. If a minority rigidly sticks to its demands on religious grounds, the dominant majority cannot be expected to be lagging behind. Both have to find together a viable roadmap to nationwide peace. On the holy soil of India, there are millions of old and new temples, mosques, churches and gurdwaras. In such a country, perennial fighting over a few chosen shrines situated in each other’s vicinity is irrational and indefensible. An amicable settlement of these disputes in the interest of peace in the country — even if not absolutely fair to all factions, it will not be an unconscionable bargain for them.

The judiciary in a predominantly non-Muslim country cannot be expected to be always protecting religious sentiments of the minorities by a watertight adherence to the secular tenor of the Constitution. Balancing competing claims in religious disputes of large magnitude and dispeling even remote chances of perpetual friction in the society form part of the judiciary’s Constitutional obligations. Glimpses of the apex court’s concerns and constraints in this regard can be seen in a number of its past decisions. In an old case the Lahore High Court had held that “the view that once consecrated a mosque always remains a place of worship as a mosque is not the Mohammedan law of India as approved by the Indian courts” — and the observation was later endorsed by the Privy Council in the Masjid Shahidganj case of 1940. Affirming it in Ismail Faruqui (1995), the Supreme Court had even added that the mosque is “not an essential part of the practice of the religion of Islam” — and had later summarily dismissed a plea for omitting these words from the judgment. And then, above all, there is the Constitution Bench decision of 2019 in the Ayodhya dispute.

If the Kashi-Mathura disputes are finally adjudicated upon by the nation’s top court, whatever decision it gives in the interest of peace and harmony should not raise eyebrows. Hopefully, the court will direct necessary measures to be adopted for not allowing the fire to escalate and engulf other places of worship — of whichever community and wherever in the country — and certainly never to any of the national heritage sites. Strict measures are also required to be devised to curb the now free-for-all pastime of denigrating the Muslim religion and throwing mud on their highly revered Prophet.

As regards the Muslims, they must remember Prophet Muhammad’s exclamation, recorded in authentic collections of his sayings, that he smelt “areej-ul-ruhaniyah” (fragrance of spirituality) coming from India. It is the sacred obligation of the Muslim leadership in the country to not let it be turned into a dar-ul-harb (abode of hostility) by adopting a confrontationist attitude. They must ensure, at whatever cost they have to pay, that our motherland remains a dar-ul-aman (abode of peace) which it has so far been under the Islamic theories of statecraft.

The writer is professor of Law & former member, Law Commission of India