Ayodhya verdict: Supreme Court would have done well to revisit Gujarat HC's 'rebuild mosques' order post-2002 violence

  • The Babri Masjid was demolished despite the then Uttar Pradesh chief minister's assurance to the Supreme Court that he would protect it

  • Not only did Kalyan Singh not protect it, he made sure that before he resigned, a makeshift temple was erected on the site of the demolition

  • Had the Supreme Court ordered the state to rebuild the masjid, it wouldn't have been the first time that the apex court would have upheld the principle of state responsibility for communal destruction by mobs

The near-unanimous rejection by Muslims of the five acres of land allotted to them by the Supreme Court is understandable.

The Supreme Court describes the demolition of the Babri Masjid as an "egregious violation of the rule of law". Had it wanted to do justice for those wronged by this crime, it could have done two things: Ensure punishment of those guilty and restore the destroyed place of worship.

But it did neither. It has set no time frame for completion of the long-pending trial of the Babri Masjid demolition-accused.

The Supreme Court could have ruled that a masjid be built by the Central and Uttar Pradesh governments. That would have been poetic justice indeed, given that members of the ruling party in both governments were involved in mobilising for the demolition. The prime minister was part of LK Advani's rath yatra and Mahant Avaidyanath, Yogi Adityanath's predecessor and guru, was a leading figure of the Ayodhya campaign.

 Ayodhya verdict: Supreme Court would have done well to revisit Gujarat HCs rebuild mosques order post-2002 violence

Supreme Court of India. Reuters

But it's more than a question of poetic justice. Ordering the government to build a mosque to replace the Babri Masjid would have fixed responsibility.

The Babri Masjid was demolished despite the then Uttar Pradesh chief minister's assurance to the Supreme Court that he would protect it. Not only did Kalyan Singh not protect it, he made sure that before he resigned, a makeshift temple was erected on the site of the demolition. Blame had to lie on all: Those who instigated the demolition, like Advani and Uma Bharti; those who actually demolished it; and the administration led by Kalyan Singh sworn to protect it.

It was just fitting that the very next day, then prime minister PV Narasimha Rao promised to rebuild it, although he did nothing to fulfil that promise.

Had the Supreme Court ordered the state to rebuild the masjid, it wouldn't have been the first time that the apex court would have upheld the principle of state responsibility for communal destruction by mobs. In 2009, Naveen Patnaik’s government was instructed to pay for repairs of churches damaged during the Kandhamal violence in 2008, following the killing of the VHP's Swami Lakshmananand Saraswati. The BJD government ultimately repaired 100 out of 169 damaged churches.

But in 2017, the Supreme Court went back on this principle, when the question before it involved the repair of mosques/dargahs damaged in the Gujarat violence of 2002. It allowed the Gujarat government to simply implement its scheme of paying Rs 50,000 as ex-gratia payment for property damaged during the violence.

Interestingly, it was the much-maligned Gujarat High Court that ordered the Gujarat government in 2012 to repair/rebuild/compensate for the 535 mosques/dargahs damaged during the 2002 violence. This was a recommendation made by the NHRC, and accepted in principle by the Gujarat government, but never implemented. When the Islamic Relief Committee went to court over this, the Gujarat government argued, without a trace of irony, that a secular government could not spend tax-payers' money on building places of worship.

Striking down this argument, the Gujarat High Court ruled that it was the state's "failure… negligence… inaction" that had led to the damage of over 500 places of worship belonging to only one community. Hence it was the duty of the state to restore these. Not doing so would be violative of the right to equality before the law, and the right to practice and propagate one's religion.

The Gujarat government, then headed by Narendra Modi, appealed in the Supreme Court. Interestingly, in 2012, the apex court refused to stay the Gujarat High Court order, but in 2017, then Chief Justice of India Dipak Mishra and Justice PC Pant struck it down, without giving any reason. As expected, the Islamic Relief Committee refused to accept the ex-gratia payment.

In the Babri Masjid case, by asking the government to give land to the Sunni Waqf Board, the principle of compensation has been upheld — but incompletely. Why should the board spend its own money to build a mosque to replace one that had been destroyed by fanatics with the police's protection?

Incidentally, as the Babri Masjid judgment itself records, the colonial British government had recognised this principle of accountability. In 1934, the domes of the Babri Masjid were damaged by Hindu Bairagis. The British government appointed a Muslim contractor and had them repaired at its own cost. It recovered the cost (Rs 15,000) from the Bairagis — and the Hindus of Ayodhya, whom it held responsible for the vandalism.

Would that the Supreme Court had taken a leaf out of the British government's sense of fair play in this case!

Even in allotting the land, the apex court has given the government a convenient option: Either allot 5 acres from the parcel of land (67.7 acres) acquired by the government after the demolition, or at a prominent place in Ayodhya. The second option can only be interpreted as an appeasement of hardliner sentiments for whom the existence of a mosque near a temple is unthinkable, even though such examples of peaceful co-existence can be found throughout the country.

Already, allotting five acres in a prominent place in Ayodhya has been almost ruled out by the Uttar Pradesh government — there's no space, bureaucrats were prompt to say the day after the judgment.

Had the court insisted that the five acres be given within the 67.7 acres acquired by the government, and had the Muslim parties accepted it, a mosque near the Ram temple would have sent a message of reconciliation. Of course, a five-acre mosque and a 62.7-acre temple complex would have driven home the inequality of the bargain, but the sight of a Muslim place of worship cheek-by-jowl with the temple may well have negated the inequality.

As things stand, the temple complex that is bound to come up will give future generations no clue that it stands on the site where a majestic 16th century mosque was unlawfully demolished.

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Updated Date: Nov 20, 2019 07:49:24 IST