Tuesday, October 26, 2010

Remembering Ismail Farooqi: A Reflection on Bannerjee and Yadav

In their recent incisive post, Bhupender Yadav and Vikramjit Bannerjee raise several questions about the use of colonial precedent and judicial faith which deserve reflection and further discussion.

1. As they establish, there is clearly long precedent from the colonial period of judicial intervention in cases of faith, but given what we know about the role of the colonial state in creating and fostering communal differences, is this good precedent? Scholars have demonstrated that the colonial administration of personal laws for instance was instrumental in the homogenizing of communal identities?

2. Colonial courts relied on religious texts to establish the ground rules of faith. They occasionally admitted oral evidence and evidence of practice, but I am yet to come across a case that use archeological and material evidence. The uses of texts is not unproblematic. Take for example, the Hedaya which emerges as the standard reference on Muslim law in colonial India, and is relied upon by authors as diverse as Fyzee and Paras Diwan. When the colonial courts began to administer
Islamic law in the late eighteenth century, they chose to rely on the al-Marghinani’s al Hedaya,a medieval manual of Hanafi law. Compared to other medieval
Hanafi fiqh texts, the Hedaya did not consistently provide the logic and
reasoning behind the rules of the school. Instead of relying on the original
Arabic text, the courts relied on Charles Hamilton’s English translation of a
Persian translation of the original Arabic version. This four-volume text itself was pared down in the 1870 edition in the interests of cost and utility, and the portions
“more interesting to the antiquarian . . . than useful to the practitioner” were expunged.

What are we then left with? It is this much pared down text that the Supreme Court relies on for instance in Muhammad Hanif Quereshi when it determines that cow slaughter is not an integral part of Islam.

3. The case is presented as a civil suit between faiths, or rather between a faith and a party i.e. the Wakf Board. If this is seen as a civil suit where one party is the Hindu faith, then the question of whether a single party can speak for the faith arises? If this is to be adjudicated as a dispute between faiths, surely the Court needs to implead other parties whose rights and beliefs are effected (those who believe in the two other Ram Jamnasthans in Ayodhya, those who believe that Ram is everywhere and not tied to one place, those who protest the idea of idol worship), and going by other civil suits where third party rights are affected, this would have required newspaper advertisements spelling out the rights and asking parties to step forward?

4. During the debates over the Shahbano judgment several commentators had pointed out, and I am in broad sympathy with them, that the protection of group rights must also provide for the protection of rights of individuals within a group. Does this faith based approach to a civil suit then take into account the rights of other Hindus? (those who believe in the sanctity of the two other Ramjamnasthans at Ayodhya, those who oppose idol worship, those who believe that it is an insult to Ram to fix him to a geographical area)

5. Bannerjee and Yadav, in both their posts emphasize (rightly so) that the court was in some ways limited to the grounds raised by the Sunni Wakf Board. However, what they do not point out, is that the Wakf Board itself was prevented from raising several other grounds due to the Ayodhya Land Acquisition Act and the Ismail Farooqui judgment.

While Justice Verma's pronouncements on the sanctity of Mosques has been quoted, it is perhaps important also to note the powerful dissent of Justice Bharucha (he was joined by Justice Ahmadi, the only other minority judge on the bench).

Justices Ahmadi and Bharucha struck down the Ayodhya Act of 1993 as unconstitutional citing in particular s. 4, whose effect was that " the Sunni Wakf Board, which administered the mosque that was housed in the disputed structure, and the Muslim community lose their right to plead adverse possession of the disputed site from 1528 until 1949, if not up-to-date, considering that the idols remained in the disputed structure only under the orders of the courts. " Thus, the only ground on which the Wakf Board could litigate was whether a previous Ram temple stood on the stop of the Mosque.

They held that this was unconstitutional as it 'offended the principle of secularism', which is a part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.

6. Bharucha and Ahmadi in a particularly scathing paragraph pointed out that it was clear that the government did not intend to be bound by the judicial decision (thus proving that it is the state that is alienated from the judiciary)and sought to use it only as a 'springboard for negotiations'. "It leaves us in no doubt that even
in the circumstance that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt."

7. I agree with Bannerjee and Yadav that the judgment is central in determining public faith in the courts. Justice Bharucha seems to have been prescient when he noted that the court of law was not competent to answer such a question.
"the Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court’s credibility." I note that the situtation before the Allahabad High Court was a little different, since both sides were allowed to read evidence but this does not appear to be the case with the ASI report which appears to be main evidence establishing the location of the prior temple. The historical evidence (and its use is questionable) merely establish that Ayodhya is the birthplace of Lord Ram (though it is doubtful whether the Ayodhya of the Traita Yuga, two cosmic cycles ago is the same location as the Ayodhya of now). What is actually contended is the exact location of the temple.

I close with Justice Bharucha's words

"Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it."


Vidura said...

@Rohit : Severe differences with Point 3 . Please check up the law on the point , specially on the right of deities to sue through their next friend , which is established through a long line of case laws for a hundred years. This has nothing to do with what one group believes and others do not . Let me repeat again that this is a civil suit , governed by the rules of Civil Procedure , Statutes and Stare Decisis not a fanciful academic article or even a writ petition .

Rohit De said...


Re point 3, I am well aware that deities can sue through next friends, but that is usually the shebait or the hereditary priest who has had a connection with the temple. The doctrine developed because Indian temples owned vast amounts of property which the colonial state sought to regulate, the analogy with trusts and trustee's was an easy one to draw. There was considerable amount of litgation to determine who could speak for an idol, positions of shebaitship and even hereditary muttawalis (in case of the Ajmer Dargah) were contested. Shebaitship could be proved through hereditary practice, but usually required some form of documentation, often a grant from a monarch. The position was thus a secular position recognized in law.

In this case, the Nimrohi Akhara fits the historic description to some extent but not suit 1 which is filed by a 'devotee' neither suit 5 which is filed by the deities. The deities here are represented by DN Agrawal (succeeded by TN Pandey)advocates from Ayodhya, I am not sure if 'self appointed best friends worked. I may of course be wrong in my reading, but my sense was that the 'trust' of the Ramjanma Bhumi vested by 'unanimous public opinion' according to the court to head of the Ramananda Sampradaya. The Trust Deed from 1985 again made in the name of the Hindu public appoints a number of figures as trustees, including VHP leaders and D.N Agarwal, the plaintiffs. It can hardly be argued that Lord Ram's juristic personality begins from 1985, but that is when the trust dates back from, in which case they can only claim to speak for the 'new temple' but not the historic janmasthan at Ayodhya.

Precisely, because this is a civil suit that affects the rights of third parties, I wondered if the court was required to make it possible for other parties to implead themselves. (the analogy would be with say an environmental damages case)

I recognize this is a civil suit, but the point I was trying to make is that perhaps it does not follow the procedure it claims to.

Vidura said...

@ Rohit : the law regarding Hindu idols / deities clearly says , that anyone even a worshipper can make an application on behalf of the interests of the deity . Interestingly the Nirmohi Akhara in their plaint before the Court did not claim title of the land just the right of management . It also chose not to sue on behalf of the deity but for itself , even though it filed it's suit much after the nitya puja had commenced at the Ram Janmashtan .
If no one speaks for the deity and the deity's interests are being disregarded then I am sure that you are aware that there is a long line of case law which says any worshipper can go to court as the next friend of the deity to protect it's interest , which was done in the present case. The Nirmohi's suit is different from the deities suit . They were heard together and clubbed together by the orders of the Supreme Court and the Allahabad High Court . In relation to the question of intervention ,in order to intervene you will have to show a locus and then participate in the suit subject to the court allowing you to do so . The Court in a civil suit cannot go around making people parties like it can in a writ petition .

Rohit De said...

@ Vidur/Vikram [?],I'd be grateful if you could suggest a case or a textbook that states that any worshiper can apply as a next friend. The precedents that I have seen all involved some sort of recognized party acting as an agent for the deity or in the case of the Ajmer Dargah, the muttawali. I've been looking at B.K Mukherjea's Tagore Law Lectures on Hindu Charitable and Religious Trusts and that doesn't mention this.

The one other example that I had come across involving worshippers dealt with worshippers within the same faith i.e. conflicts between Digamber, Shwetamber and Murti Pujak Jains over the management of pilgrimage sites, and these cases are an example of how a two party litigation became a triparite litigation.

Renganath said...

Yes, the sensibilities of people who believe in the 2 other supposed janmasthans have been compromised, the beliefs of those who think that Lord Rama should not be confined to a geographical location have not been taken into account. What is there to say of the All. HC when the SC failed to give due weight to the rights and beliefs of millions of Christians in India who proudly sing the national anthem - the rights of these Christians have surely been affected.