Saturday, October 2, 2010

And justice for all - S Gurumurthy


But on one of the shiniest days in the history of free India our media pundits plumbed the depths of trivia

My judgment is short, very short," writes a relieved and happy Justice SU Khan, who delivered the Ayodhya verdict along with Justices S Agarwal and DV Sharma. But that "short, very short" judgment itself runs to 285 pages. The order of Justice S Agarwal, with annexes, runs to over, believe it, 5,200 pages; that of Justice DV Sharma tops over 1,700 pages, including annexes. It means this: to get a basic idea of the Ayodhya judgment one has to wade through some 8,000 pages.

This long judgment may well enter the Guinness book as the longest judgment ever written! But, what the visual media and the participants in its debate had in their hands when they enlightened the nation for almost four hours was a one-page summary of Justice Khan's order; a two-page summary of Justice Sharma's; and a 12-page summary of Justice Agarwal's. Yet, in a couple of hours they settled the national opinion on the long judgment of 8,000 pages.

The "quality" of their discourse was self-evident, even self-serving. The visual media continuously ran headlines like "no temple was demolished to build mosque", when the majority finding on the issue, by Justices Agarwal (p5083) and Sharma (p28-104 in Waqf Board Suit) was that the mosque "had been constructed on the site of the Hindu temple after demolishing the same"; the judges had found that the Hindus had for long worshipped the place where the mosque stood as Ram Janmabhoomi (Sharma p172 Hindu Suit and Agarwal p5085).

Most media projected Justice Sharma's views as minority view. Actually it is Justice Khan's that turns out to be that way, except on the division of the disputed area where Justice Agarwal partly agrees with him. But, on the issue of the broken temple predating the mosque and on the belief of the Hindus about the birthplace of lord Ram, Justices Agarwal and Sharma constitute the majority. Even Justice Khan does not deny the existence of the broken temple but says that the mosque was built on temple ruins.

Again, the media did not highlight that the two Justices have dismissed the suits of the Sunni Waqf Board and the Nirmohi Akhara (believed to be the proxy for the Congress party); and also that the two Justices have decreed only the two suits filed by the Hindu parties. The consequence of this is immense.

The discourse on the visual media was less about the judgment and more about politics like whether the Court was right on deciding religious issues like whether it was Ram Janmasthan or there was a temple under the mosque. The media also wailed about why the nation should be wasting time on the temple issue when developmental issues are crying attention. Each of these comments is valid in itself; but they are no substitute for rigorous analysis of the verdict. Almost all commentators recalled the 1992 demolition, but did not say that Justice Agarwal (page 586) has concluded that that did not affect the rights of the Muslims in their suit. With the result, the millions who witnessed the TV channels did not get the right idea about the judgment; they got instead a distorted view of it. But they got the usual, and more, dose of lectures on "secularism".

And most of the commentators were elated over the "statesmanship" in giving a third of the disputed place to Muslims. But they did not stop a minute to ask (unlike legal experts Rajeev Dhawan, regarded as a secular icon, and PP Rao did) how, after saying that the Muslims and Nirmohi Akhara had no right to sue, the two judges could give any share of the property to them. Political parties need votes; so they would speak only with that in view. But should these experts and intellectuals not call a spade a spade? Also point out what the Court has actually found as facts? They didn't. Therefore, the start of a national discourse on such a critical legal issue, with huge political and communal implications in future, could not have been shallower. More. For the last 20 years all political parties and secular intellectuals had told those who were for the Ram temple and those against to wait for the judicial verdict for resolving the dispute. Now move on to know whether the verdict achieves that objective.

Without knowing who were the parties to the litigation, who has won and who has lost and what the verdict says cannot be deciphered. There were four suits in all before the judges — two by Hindu parties; one by Muslims (Sunni Waqf Board); and the third, widely believed to be the proxy of the Congress (Nirmohi Akhara). Some 121 issues were framed in the suits — like whether the Mosque was constructed on a temple demolished or in ruins; whether the Hindus had a long held belief that the disputed place was the birthplace of lord Ram; whether the four suits were within the period of limitation set by law; whether and how long the Hindus were worshipping at the disputed place; whether the Muslims were also worshipping in that place and from when to when; who owns the disputed land, the Waqf, Nirmohi Akhara, or the deity Ram. And so on.

While the Hindus' suit had claimed the Janmasthan as exclusively that of the deity Ram, the Sunni Waqf Board suit had claimed it as exclusively its own. Nirmohi Akhara suit had claimed it again as its exclusive property. In law, this mutually exclusive claim of the three contenders meant that, if the suit of any one was allowed that would destroy the suit of the other two. This was how the cases, three of which were filed in 1989, the first one by the Hindus having been filed in 1950, began with the parties letting in oral and documentary evidence first and then arguing the case latter. The principal issue in the case was: whether the disputed place belonged to the deity Ram, or the Mosque or the Nirmohi Akhara.

To decide this, the critical fact to be found was whether a Hindu temple predating the disputed Mosque existed. To unravel that the Allahabad High Court had directed the Archeological Survey of India (ASI) to find out "whether there was any temple/structure which was demolished and mosque constructed on the disputed site" first by Ground Penetrating Radar (GRP) survey and, thereafter, by excavation. The ASI conducted the GRP survey and submitted a report in February 2003; after that it excavated the disputed area and submitted a further report of 574 pages. What was ASI's answer to the all-important question of temple under the mosque? How have the three judges decided the cases? What are the legal, political implications of the decision? These questions call for a clinical dissection of the 8000-page verdict. That will reveal whether the verdict solves the dispute, or escalates it.

http://www.dailypioneer.com/287019/And-justice-for-all.html

http://expressbuzz.com/opinion/columnists/verdict-%E2%80%94-a-prologue/211591.html

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