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Citizens for Justice and Peace

Judiciary in the dock

08, Dec 1993

 The wisdom of relying on the country’s judiciary to adjudicate on disputes that are essentially political in nature has been an oft-debated issue in the past. It has acquired an even greater relevance today.

 

Senior Jurists have often opined that especially in a situation where the record of the executive itself has been dismal and ineffective, entrusting the courts with the responsibility of deciding on sensitive political questions is not merely improper but also not pragmatic. Interminable court delays and the limited and ineffective machinery at the disposal of our judges in fact makes the implementation of their own orders somewhat of a farce.

 

The Ayodhya dispute, more than any other in recent times, exposes these deficiencies of the judicial system. But a close reading of the legal proceedings in this dispute over the past 18 months or so does something much more. It reveals the vulnerability of the higher rungs of the Indian judiciary to the offensives launched by different fronts of the saffron brigade in the name of Hindu religious belief and worship.

 

In substance this has meant an inability to uphold constitutional principles and secular legal values both before and after a place of worship, the Babri Masjid, was willfully destroyed last December.

 

Despite being alerted through a contempt petition filed by senior counsel O.P. Sharma in July 1992, live months before the Babri Masjid was actually demolished, the country’s apex court passed no order, or took no action to prevent the demolition. Sharma’s petition had argued well in advance that the very construction of a makeshift platform at the Babri Masjid site was in contempt of an earlier Supreme Court order to maintain the status quo.

 

Only four months later, on November 28, 1992, on an agitated application made by Sharma did the court appoint its observer, Tej Shankar to survey the ground realities in and around Ayodhya. His reports to the court made no mention of any danger to the mosque.

 

Ironically, the SC has in its own order of November 28, put on record Sharma’s warnings following the build-up to December 6.

 

Inspite of such clear-cut warnings, did the Supreme Court – headed by Chief Justice M.N. Venkatachaliah – itself not embolden kar sevaks by its inaction after the construction of a platform at Ayodhya site in July 92 in defiance of its status quo order?

 

Besides Sharma’s warnings, had the Attorney General, Milon Banerjee not informed the court on November 27, (a day before the SC appointed its Court observer) of Intelligence Bureau reports that warned of danger to the mosque?

 

Despite this did the judges not grant permission to a “symbolic” kar seva and even direct that this permission should be widely publicised in their order of November 28?

 

The farce continued further. After the Babri Masjid was demolished, on the night of December 6, K.K. Venugopal, counsel for Kalyan Singh dramatically told the Supreme Court that his client was “anguished” by the demolition and “hung his head in shame”.

 

Advising the Indian Supreme Court on ways and means to repair the damage inflicted on the rule of law, Venugopal said, “the Court is not powerless. It can order the restoration of all three domes immediately so that the faith of the people remains in the law.”

 

Legally speaking, this was actually possible: since the demolition was in breach not only of the court’s orders but of the Indian Penal Code (desecration of a place of worship) too, a writ of mandamus enforcing “obedience to the Court and law of the land” was possible. But, the Attorney General, Milon Banerjee representing the state nudged the Court in a different direction, “Your lordships will not say anything.” The Court obliged. It remained silent and did nothing.

 

This reluctance of the country’s judiciary and other organs of the state to book all those responsible for the Babri Masjid demolition, or the large scale violence that followed, instilled a fresh dose of confidence in Kalyan Singh, who was shaky just s few weeks earlier.

 

On January, 19, after a brief appearance before the Supreme Court an emboldened Kalyan Singh who had recovered his poise and forgotten his “anguish” addressed a public meeting in the country’s capital the same evening. He declared, “Not even an adverse verdict of the Supreme Court could stop the construction of a Ram temple at the site of the Mosque. No power on earth can stop it…. the demolition was the hand of God.”

 

On December 18, 1992, the apex court, suo moto, issued contempt notices to Kalyan Singh and Six others for breaking the promise to protect the mosque. But though nearly a year has since passed, it has taken no follow-up action on these notices. The main reason behind this silence is the counter-affidavits filed by Kalyan Singh and Co. that expose the SC’s own indecisiveness in tackling the issue (for reasons similar to those explained above).

 

In striking contrast to these dithering and contradictions, the agent provocateurs of the Sangh Parivar after breaking the law in full public view have managed to escape Its clutches. This is primarily due to the failure of courts to confront issues–a violation of law, disruption of inter-communal harmony, assault on minority rights and a minority place of worship-squarely.

 

After a whole year of vacillations, it is anyone’s guess as to whether those guilty of grossly violating the laws of the land will finally be brought to book.

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