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Why secular 'history'     repeats itself Danger in Kashmir Web of lies Pak lies continued... More Pak lies: on     J&K this time Pakistan's lies on     Junagadh, Hyderabad

The Parivar missed the legal bus

The Vishwa Hindu Parishad had to eat a lot of crow from the Supreme Court's recent pronouncement on the Ayodhya case only because it had missed the legal bus right from the time the Narasimha Rao government passed the 'Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993)' till the apex court's original judgement came on October 24, 1994 and even thereafter.

Start from those who were vigilant enough to file the writ petitions in 1993 and 1994 challenging the constitutional validity of the above law that came into being with effect from January 7, 1993 although the Bill on the subject replacing the earlier ordinance with the identical name was moved in Parliament on March 9, 1993 and became law on April 3, 1993.

It is most conspicuous that three of the five separate petitioners in the case were Muslim entities -- Dr M Ismail Faroqui (after whom the case came to be named), Mohammed Aslam and Jamiat-Ulama-E-Hind. This intense interest among the Muslims was despite the fact that, of the 67 acres of land to be acquired under the above law, the Muslim community could lay claim only to the measly 0.31 acre of the disputed site where the Babri structure once stood. In contrast, the number of Hindu petitioners was two although, excepting the disputed area and 16.01 acres that already belonged to government, all the remaining land was indisputably owned by the Hindus; one of them even chose to make, for reasons unfathomable, the UP government as the respondent in what was an act of Parliament, indicating, on the face of it, the indifference with which the legal approach had been resorted to.

Shockingly, neither the Rama Janmabhoomi Nyas nor its chief, Ramchandra Das Paramhans, chose to challenge the above Act although 43 acres of its legally owned land was being acquired at one go by the Government of India. Had its sullied name after the demolition of December 6 rendered the VHP and the rest of the Sangh Parivar so comatose that it did not have sense left to discern the vile objective of New Delhi's Acquisition Act? Or did it, like often believed in cricket, think that the law is an ass? If so, far too much credit has been given by the nation to the Sangh Parivar's intellect and moral resilience.

Next, consider the 'Statement Of Objects And Reasons' given, as mandated for any law, at the beginning of the above Acquisitions Act, and contrast it with the majority Supreme Court's verdict which the VHP was touting as its rationale for recently demanding the return to it of a portion of the acquired land for performing the puja-cum-shila daan on March 15, 2002.

The above Statement of Objects says, inter alia, 'As it is necessary to maintain communal harmony and the spirit of common brotherhood among the people of India, it was considered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a complex which could be developed in a planned manner wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities can be set up.'

And what, pray, did the majority Supreme Court view say of the Act's objective? That was spelt out in paragraph 52 of its judgement wherein it stated that 'The justification given for acquisition of the larger area including the property respecting which title is not disputed is that the same is necessary to ensure that the final outcome of adjudication should not be rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in case the Muslims are found entitled to the disputed site.'

Please read the preceding two paragraphs again, if needed, and it will dawn on anyone with ordinary sense that the majority view of the apex court on the Acquisition Act's basic purpose was poles apart from the Objectives and Reasons given for that legislation's enactment. It was truly like the chasm between Jinnah's advocacy of the two-nation theory and Mahatma Gandhi's yearning for Hindu-Muslim unity. And yet, neither of the two Hindu petitioners asked the Supreme Court for any clarification on the conflict between the Acquisition Act's stated objective and the court's own view of it. The Rama Janmabhoomi Nyas was obviously sleeping with the rest of the Sangh Parivar, simply dreaming of building a magnificent temple for Ram.

The above conflict between the Acquisition Act's stated objective and the apex court's interpretation of it was truly bizarre. The act aimed at setting up a multipurpose complex on the acquired land because, by Section 4(3), it abated all suits, appeals and proceedings in respect of the rights, title and interest relating to any part of the 67 acres it proposed to acquire. However, the Supreme Court ruled that Section 4(3) was legally invalid and severable insofar as it denied judicial remedy to the resolution of a dispute under the rule of law envisaged by our Constitution. That was fine. What didn't appear so was the Supreme Court conjuring up 'adjudication of the dispute relating to the disputed area' and returning the excess land to its owners although the Acquisition Act itself never mentioned any of those two facets!

The Supreme Court performed that acrobatic act through its interpretation of Sections 6 and 7 of the Acquisition Act. Section 6(1) spoke of vesting the right in any of the acquired property to some other authority, instead of continuing with the central government, provided that authority complied with certain terms and conditions to be imposed. Section 7 laid down that the management of the acquired property by the central government should ensure the status quo prevalent before the commencement of the Acquisition Act. Yet, the Supreme Court conceived of these two sections as implying a resolution of the existing dispute over the disputed area and return, thereafter, of excess land acquired. Nobody but nobody asked the Supreme Court to resolve this veritable jigsaw puzzle where two missing pieces were sought to be replaced by one missing one.

The Act's stated objective of acquiring private land 'for setting up a complex... wherein a Ram temple, a mosque... could be set up' was itself an area warranting a constitutional challenge. Under Article 31A of the present Constitution of India, one of the subjects on which no law shall be deemed to be invalid is 'the taking over of the management of any property by the State for a limited period in the public interest or in order to secure the proper management of the property.'

But what was the Acquisition Act doing? It was not 'taking over the management' of 51 acres of private property (16 acres were already government's remember) but actually acquiring ownership of that acreage and, as per Section 8, paying, out of the taxpayer's money, compensation to existing owners at market rates! Hence, the acquisition could per se be legally challenged.

Where the additional area of challenge lay seems to this writer to have been in the domain of that much misused and abused word 'secular.' Can the secular Indian State acquire land to house a religious place of worship? Does the development plan of a municipal or government town development authority reserve a plot for a place of religious worship? Besides, why did the Acquisition Act discriminate against other religions by conceiving of setting up only a Ram temple and a mosque? Why not also a gurudwara, a church, a synagogue, a Buddhist temple etc? Wasn't this bypassing of other religions a non-secular act of State?

Consider, finally, the VHP's impetuous demand that the government should hand over, for the March 15 puja, part of the acquired land as set out, the VHP proclaimed, in the majority verdict of the Supreme Court on October 24, 1994. Just what was the VHP -- and the Sangh Parivar -- doing for seven-and-a-half years from then till now? Counting the carved shilas?

They forgot -- or didn't know in the first place -- that while the majority verdict of the Supreme Court did provide for return of acquired land, it had attached a rider to that release. In paragraph 53 of its judgement, it said, '…at a later stage when the exact area acquired which is needed, for achieving the professed purpose of acquisition, can be determined, it would not merely be permissible but also desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner.'

The critical issue, therefore, was 'the exact area... needed for achieving the professed purpose of acquisition.' Who was, or is, to determine that 'exact area?' The executive naturally -- meaning the Government of India. But it was guaranteed that no non-BJP government in New Delhi would work out that 'exact area' -- not until it was pressurised by the VHP or Muslim claimants to the disputed site though it suited the latter not to do so. The 13-day BJP government of 1996 itself failed (forgot?) to do that, preferring, instead, to give a central government guarantee to that wretched Enron power project of Thackeray & Munde Co. Nor did the Vajpayee-led government since 1998 work out that sum till last week, though the Shankaracharya of Kanchi has quickly arrived at seven acres as the magic figure to be given to whoever wins the title suit.

One fact is clear now. One of the weaknesses of the Sangh Parivar is its almost utter failure to read the fine print of law, or, for that matter, even its bold print. Were it not so, the Parivar would have long ago obtained from the judiciary a permanent injunction restraining one and all, the media included, from calling the RSS as murderers of the Mahatma and the BJP as a party of communalists and fascists.

Arvind Lavakare