Shafeeq R. Mahahir
Babri Masjid, Ayodhya. Rule of Law, Substance vs Form, Letter vs Spirit of law… Words abound, but crucially, the flawed etymology in partisan discourse is regrettably obscured. There is talk of Muslims being “given” land as if they are being provided with something that is not rightfully theirs. The fact of the matter is that what Muslims owned for centuries has been forcibly wrested from them, illegally, and the Court, despite recording hostile actions as illegal, recording that it does not stand established that what opponents claim is correct, nevertheless proceeds inadvertently to accord its seal of approval on an admitted illegality “giving” the opponents property and right notwithstanding inability to prove title.
Correcting phraseology, one should say what belongs admittedly to Muslims has been taken away. Questionable in jurisprudence, the State is directed to “give” the Muslims something which they neither want nor are willing to accept. The value of plots of land can be replicated in many ways, possibly substitutes found in many locations, but neither ancestry of a community’s place of worship, nor its sentiments, can be evaluated in terms monetary or otherwise. In surrendering an opportunity to blaze a trail that would be setting a lauded and cherished precedent, the court inadvertently let slip a regrettable message to litigants: provided adequate capacity to raise a ruckus can be generated on one temporally stronger side, the courts could capitulate, handing over a verdict in that direction. This, extrapolated, leaves jurisprudential principles dismantled as unnecessary/redundant and legitimises machinations “creating trouble” if obstructed in forcible dispossessing of the “other”. Courts need merely evaluate which party is more capable of seriously breaching law and order, and the rest follows sidestepping cumbersome procedures, laws, principles, contrary precedents, and time consuming inconvenient obstructions to majoritarian will…
Review is not just advisable and necessary, it is imperative. No one with the interest, in his mind, of the nation, justice, statesmanship and desirous of the nation proudly see a regulated, orderly, law abiding future for coming generations, would allow such verdicts to go unchallenged. It is not just what legal historians will record. Future generations will accuse those now advocating inaction and acceptance of gross injustice, and hold their elders of today guilty of inaction: non-feasance, when there is duty to act, is culpable. Review lets Courts know what informed citizens think about their judgement, handing to the judiciary an unimaginably invaluable opportunity to demonstrate to the world that it meets and matches internationally accepted, time honoured principles and canons of courageous jurisprudence, farsightedly recognising and reversing flawed steps treading a path leading to everything it should not. If foreign investment flows into a country it is because the foreign investor feels secure on the basis of settled legal propositions honoured by Courts, enabling a reasonable certainty forecasting course of future dispute resolution. Seeing extra-legal actions accorded a premium, there is likelihood of great reluctance to step in where future conflict resolution is seen clouded in haze, suspect, or afflicted by incentivised majoritarianism.
One hears “forgive”, “forget”, “move on”. Is there place for magnanimity in situations where the atmosphere steadily worsens, mob violence is the order of the day, public canards about Muslims are dime a dozen, politicians demonstrate clearly partisan attitudes, and Courts take years to resolve anything? Recall Graham Staines’ widow “forgiving” those who burnt her husband and two small children alive? Is that concept of forgiveness not misplaced in situations of widespread mischief and mayhem, and in fact serves to condone and incentivise unacceptable deviant behaviour which should instead be met with full force and rigour of the law? Magnanimity is virtuous where it is likely to be appreciated in the right spirit and conduct of the other is likely to be impacted positively by such gestures.
A Delhi cleric has been asking Muslims to gift Babri Masjid land to Hindus on an assurance from them that no other Muslim place of worship will be touched. Is he unaware such an assurance to SC itself was breached?! Who are these “Muslims” who can “give”? Where would they derive such authority from?
Certain fundamental questions fall for consideration: a Waqf has a muthawalli, a trustee. Trustees cannot act in breach of stipulated duty. Waqf Board, merely a representative supervisory authority, with members elected by muthawallis hence subject to their limitations, has no such right either. Where muthawalli and Waqf Board both breach duty, law declares such acts illegal. Courts, meant to uphold law, step in to correct breaches, hence duty bound to rectify the wrongs, cannot sanctify them by judicial seals of approval.
Adjudicating courts step in to displace erring muthawallis/Boards and, ipso facto standing in their shoes, function as uber-trustees, therefore bound to act consistent with trust deed (Waqfnama) terms and do only what is permissible. Vis-à-vis a Waqf, a Court would not stand entitled to arrogate to itself a power that those it substitutes for never possessed. Stepping into the position of muthawalli or Board or both, a Court exercising that power within the contours of the Waaqif’s directives, cannot do what those it substitutes for could not. Neither the muthawalli nor the Waqf Board could have given away what they had no power to alienate. My argument is, having displaced them and exercising their power, neither could the Court.
Bigoted minds focused on a Majority-Minority binary are afflicted with so myopic and a blinkered vision, one is reminded of two stunning observations from a High Court judge: “Intellectual pygmies cast tall shadows” and “What can you expect if you make a virus the head of a pharmaceutical company?”
Significantly, those reacting on social media in corrosive toxic animosity cloak themselves in anonymity of pseudonyms carefully hiding their identity: hiding identity can testify to awareness of illegitimacy of thoughts expressed. “We can easily understand when children are afraid of the dark. The real tragedy is men are afraid of the light.”
Review or not? Not an option. The Majesty of Law cannot yield ground.
Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad