The recent demand, forcefully made by the RSS Sarsanghchalak Mohan Bhagwat, for a law or ordinance on the Ram temple, pushes a false binary – between a judicial decision and an ordinance or act.
The idea, reiterated in a speech by senior RSS functionary Indresh Kumar, is that if the Supreme Court doesn’t act, the government should enact a law that will, in some form, enable the central government to build a Ram temple, thus fulfilling the promise made in the BJP’s political manifesto.
Do BJP-RSS Know that No Law Can Bypass Constitution?
This is a curious call to action because, hopefully, the BJP and RSS know that no law can bypass the Constitution or judicial challenges in courts. And this law in particular – assuming the ruling party will have it passed in both houses of the Parliament – will most certainly be challenged in the Supreme Court.
When two different religious communities lay claim over a piece of land, the government favouring one (and one can presume that the claim favoured here would be that of the Ram temple) will be called out for violating the rights of the Muslim community, as conferred by Articles 14, 25, and 26 of the Constitution.
Unless the government seeks to build religious centres for all communities –which, given the political and ideological proclivities of the ruling dispensation, is unimaginable – the law to not only acquire the disputed land for a temple, but also to build it, would run into the headwinds of the constitutional guarantee of equality of all religions.
Gandhi and Sardar Patel supported the reconstruction of the Somnath temple, but not by the government and not by using state funds, despite the fact that the Somnath temple was not disputed in the way the Ram temple is.
Secularism of the Indian state approximates more to proximity to all religions, rather than equal distance from all. The state is involved with a number of existing religious practices and institutions, but to pass a law that not only favours the faith of one community over another, but also legitimises retrospectively the assault committed on the faith of a minority community by the destruction of the Babri Masjid, would be to go too far beyond any possible definition of a secular state.
And this is without taking into cognizance the fact that the agitation for the Ram temple always has been symbolic of the aspiration of making India a Hindu state.
We have been here before. The last time the government sought to acquire the land to settle the dispute between territories through the Acquisition of Central Area of Ayodhya Act, 1993, it took the matter (itself) to the Supreme Court in a reference, and declared before it, that it was committed “to the construction of a Ram temple and a mosque”, without specifying exact locations.
What New Arguments Can the Govt Come Up With?
The matter, at the heart of it, is a land dispute – a fact that is easy to forget in the political and ideological heat that surrounds it. (It is pertinent to remember that what was destroyed on 6 December 1992 was not only the Babri Masjid, but also the Ram Chabutra and Kaushalya Rasoi, whose existence is historically parallel to the Babri Mosque.)
In Dr Ismail Faruqui v Union of India 1994, the Supreme Court struck down the aforementioned 1993 Act saying that it was unconstitutional, as it overrode the property rights of the Muslim litigants, acquired according to the latter’s pleadings, through the simple fact that the Babri Masjid had stood on the disputed land at least since the 16th century.
Given that the government’s attempt at acquiring this land has already been struck down once by the judiciary in 1994, it is difficult to understand what new arguments the current government could come up with to try and wipe out the established property rights of the Muslim litigants.
In addition, the government would also have to demonstrate that any such acquisition is in public interest – not an easy task, given that acquiring the land to build a Ram temple would favour one religion over another.
Legitimisation of the Demolition
If the government were to pass another such Act (this time with no proposal to build a mosque, presumably) it will also have to contend with the Places of Worship Act (Special Provisions) Act, 1991, which bars the conversion of any place of worship, including of course a mosque, as it existed on independence – a fairly fundamental safeguard for a secular state.
The Supreme Court has already noted as a fact that the Ram idol was planted in the mosque post-independence, on 22-23 December, 1949.
Until that date, around when Muslims were forcibly stopped from using the mosque, Babri Masjid was a place of worship for the latter, barring the Ram Chabutra, which of course was a Hindu place of worship. It is also easy to forget that there is a criminal case winding its way through the judicial system given that it has been progressing at a pace that would put glaciers to shame.
As the Supreme Court said in 1994, a “five hundred year-old-structure which was defenseless, and whose safety was a sacred trust in the hands of the state government was demolished.”
A law of the nature demanded by senior RSS leaders would only further abuse that the trust, and provide state approval and sanction to the demolition. If it comes into force, then the Supreme Court will have to answer if a criminal act can create property and other rights.
Law Passed By Govt on Ram Mandir Will Delay Conclusive Outcome
Given the context, and our institutional and constitutional structure, it is baffling that the RSS is pushing the government to come up with a law to bypass the judiciary. The worst they can do is to keep mounting all kinds of pressure on the judiciary – including, for instance, the sort of vitriolic and personalised attack that Indresh Kumar launched on ‘2-3’ judges in a speech that he delivered on 27 November – and hope that the courts will buckle under pressure. But they cannot stop the law they are demanding from being brought to the courts, and challenged.
Any law passed by the government to build the Ram temple will only add to the questions the judiciary has been grappling with on the issue, and further delay a conclusive outcome.
Further delay means that the issue will remain emotive and eminently exploitable for elections to come but if the RSS’s real intent is to see a Ram temple built on the disputed land, a law passed by the government cannot help them bypass the judiciary. The only way to bypass the judiciary at first pass is to build the temple illegally, and the only way to bypass it altogether, is to change the Constitution to suit their end goal.
(Avi Singh is an advocate who specialises in transnational law and serves as the Additional Standing Counsel for the government of NCT of Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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