SPECIAL ARTICLES

The Ayodhya J udgment

Encoding Secularism in the Law
Rajeev Dhavan
If the differences between the majority and the minority judges are a reminder of the indeterminacies, choices, preferences
and selective emphases in the law, the Ayodhya judgment of the Supreme Court must also reinforce the warning that struggles
within the legal system have to be fought over. This was a case about the government's package solution on Ayodhya which
the minority found invidious and the majority had to virtually rewrite and re-package. Hut when all is said and done, the
majority judgment is not a juristic victory for secularism and may trouble the secular cause for many years to come.
I
IF it is truly the ease that "(e)ach society
reveals through its law the inner secrets of
the manner in which it holds men together",
1
a misplaced insensitivity to Maw' as a discrete
social anil political process seems to have
encouraged mal understandi ngs of the
Ayodhya judgment and, more generally,
I ndia's 'rule of law' based secularism.
2
The
politicians arc somewhat stumped by the
judgment, unable to lathom their gains and
losses. If the Congress appeared chastened,
it was determined not to lose 'Hindu' face
by continuing to pretend that it could still
transfer Ayodhya land to the Shankaracharya
Trust/ Fearing that the judgment might put
their Ayodhya campaign into cold storage
until the suits were decided, the forces of
Hindutva (which includes the BJ Pand others
who have malappropriated Hinduism for
political gains and public recognition),
responded by appealing to the "peopl e's
court" and demanding a legislative reversal
ofthe judgment. liven if Lord Ram (assuming
that he was involved at all) could wait, it
was not electorally propitious for the forces
of Hindut va todo so.
4
Want of legal literacy
has even led some of their sympathi es to
make the unbalanced accusation that a pro-
Muslim court had refused to answer the
Reference because the answer to it would
inevitably have favoured the Hindus "The
left, secularists and liberals j oi ned the
Muslim community in heaving a sigh of
relief and welcomed the j udgment without
looking at the close print." The collective
import of these reactions could well result
in pushing the Ayodhya issue politically
adrift again.
The strategy of the BJ P and others is not
just to avoid being trapped in the rule of law
but to threaten to bring down the entire
edifice of the law if its political strategy is
thwarted. The declaration that this is not a
matter for the law courts is not an insight
but a slogan. No solution - legal, political
or otherwise - can succeed if the people are
poisoned against it. Indian courts are no
strangers to resolving complex social and
political controversies.
7
If theShaheed Ganj
case (between the Sikhs and Muslims) could
be resolved by litigation, so can Ayodhya/
The vexed issues of cow slaughter were
eventually resolved by the Supreme Court
which along with the high courts has taken
within its stride all kinds of problems between
sects and communities,
1
' the extent of
prosel yti si ng.
10
the church and school
educati on," the nature and extent of
constitutionally permitted religious practices
(such as the 'landava' dance of the Anand
Margis
12
or the duly to sing the national
anthem
11
) the interpretation of personal laws
and so on.
14
The most extensive area of
resolution by litigation has been disputes
over H indu religious endowments.^The list
is as endless as social adversaries have been
content to find a solution within the court
system. The courts have been the situs of
the struggle for religious freedom and,
perforce, secularism. Fven in the case of
Babri masjid, unfavourable orders have not
deterred the Musl i m communi ty from
reposing faith in an adjudicated solution. It
would be a loss to Indian governance if this
valuable mechani sm were undermi ned.
Enmeshed in the law are a huge number of
social issues which few amongst the 'rulers'
would want io unsettle. Hmdutva, itself,
would be uneasy about questioning properly
relations and power structures in civil society
which have been encoded into the fabric of
the law over the last century."' Nor would
Hindutva openly threaten to revive a caste-
ridden Hinduism which has been declared
to be overtly unfair and constitutionally
i nvi di ous in ils l egal treatment of
untouchables, womeffand others.
17
To argue
that all legal disputes arc inevitably located
in society (of which adjudicatory fora are
a part) is unexceptional. It is not entirely
clear as to what kinds of issues Hindutva
finds unsuitable for determination by law
courts, other than those linked with political
expediency.
It cannot be the case that claims over
disputed religions sites arc not appropriate
for judicial examination.
11
' In the present
climate, if the courts did not step in, these
would be decided by mob rule. It also cannol
but be the business of the higher judiciary
to determine the extent of the obligation of
the state to protect pl aces of worshi p
threatened by miscreants.
1
" To call all that
in questi on woul d be to bring I ndian
governance itself to a halt. If the BJ P and
others resist a court solution this is not a
principled objection but one that is clcctorally
fortui tous. Duri ng the VHP-AI BMAC
(Vishwa Hindu Parishad - All India Babri
Masjid Action Committee) negotiations in
1992, the VHP made it clear that the
"question" of handing over the site to the
Muslims even if everything was proved in
the lattcr's favour simply "did not arise"/"
The BJ P is not less strident: "Can any court
in I ndia order the idols to he removed?
And, even if a court did, can any government
implement that order?"-
1
We arc now no
longer talking of negotiations but decisions
being imposed in terroreni for political
gams. Kalyan Si ngh's arrogant reaction to
bei ng puni shed for contempt for his
deliberate failures over Ayohdya are not
just impertinent but subversi ve."The BJ P's
rejection of the Supreme Court decision
contains dangerous portents. It also places
secular forces on the defensive - away
from the issues ot justice that demand
patient resolution.
II
To appreciate the judgment calls for an
understanding of the Acquisition of Certain
Area at Ayodhya Act 1993 and the Reference
to the Supreme Court - the validity of both
of whi ch was cal l ed in consti tuti onal
question. Together they constituted the
Congress government's package solution.
Beating a hasty retreat from the promise to
rebuild the mosque, on December 27, 1992.
the government announced its new package
solution consisting of an acquisition of the
site and adjacent areas by a special statute
and a Reference on the historical status of
3034
Economic and Political Weekly November 26, 1994
the area.'
1
This package was put into effect
on J anuary 7 , 1 w h e n a new element was
added, namely, imposing a statutory status
quo freeze of the "position" on the site'
4
which included continuance of worship al
the makeshift temple that had been illegaly
constructed on the site of the mosque after
the demolition and worship at which was
recognised by the controversial judgment of
the high court pronounced a few days earlier
on J anuary I. 1993.-' Status quo placed a
premium on illegality in the name ot peace,
and provided the government a statutory
immunity for not fulfilling its promise to
the Muslims to rebuild the mosque. The
government's package was not j ust
unconscionable but perverse. II the nation
was consci ence- stri cken about the
demolition of the mosque, the government
quickly surrendered its consci ence to parly
political advantage. Its package grossly
discriminated against the communi ty to
whom not just the government but the
nation had promised not just an apology
but also recompense.
Purporting to act in the interests of public
order and with a view to construct temples,
mosques, museums and cognate facilities
(all of whi ch are state subj ects) the
Acquisition ot Certain Area at Ayodhya
Ordinance (later Act) 1993'" acquired the
site and adjacent area (Section 3), I reed it
lioni all encumbrances (Section 4(1) and
(2)). abated the suits (Secti on 4(3)),
enabled the government to secure posses-
sion (Secti on 5), manage the property
(Section 7(1)), impose a status quo of the
"posi ti on" on the site of the mosque
(Secti on 7(2)), settl e all cl ai ms of
compensation through a Claims Commis-
sioner who was tree to "regulate his own
procedure" (Section 8) and. then, to have a
relatively free hand in handing over any part
of the property to whichever authority, body
or trust it liked on such terms as it thought
lil (Section 6). To this was attached a
reference which asked "Whether Hindu
temple or any Hindu religious structure
existed prior to the construction of the
Ram J anmabhoomi-Babri masjid (including
the premises of the inner and outer courtyard)
in the area on which the structure stood'.'"''
Apart from being patently objectionable,
this quest ion did not even reflect the ABM AC
and VHP discussions in which the former
asked proof of whether the site was, indeed,
the birth place of Lord Rama; and whether
a Lord Rama Temple to commemorate his
birth was in fact destroyed to build the
mosque in 1528?
Even if a nation in pain temporarily
accepted the package, it was transparently
suspect. To the Muslims, the government
claimed that rebuilding the mosque was not
possible because parliament had imposed a
status quo freeze of the site. That this meant
that Hindu prayer (fortified by the Darshan
judgment of J anuary 1,1993) could continue
al the site where the Muslim mosque lay in
ruins, seems to have eluded equi tabl e
consideration. For the Hindus, the govern-
ment had the less forbidding and more
reassuring message that new 'trusts' would
be formed and Ayodhya land transferred to
them."' Not surpri si ngl y. the enti re
government's package was challenged as
legislatively incompetent and anti-federal
(since the union had trespassed into the
stale's exclusive powers over public order,
pilgrimages, museums and the like), ami-
secular (since it acquired the very site of
worship and threatened to transfer il from
one faith to another in the name of public
order and sought to interfere in religious
affairs), discriminatory (because il favoured
one community over another) and violative
of due proi ess (in that il took away existing
judicial remedies and left crucial matters to
be arbitrarily decided by the government
and the claims com-missioner).
10
Likewise
the reference was political, communal and
unfair in that it had no legal element or
consti tuti onal purpose, was arbitrarily
manufactured out of the government's
sel ecti ve i magi nati on and sought to
determine the Muslim communi ty's rights
in a trial by history that was nei ther
constitutionally warranted or lair.'' This
comprehensive attack succeeded almost
wholly with the minority (J ustice Bharucha
lor J ustice Ahmadi and himself) -and only
partly with the majority (J ustice Verma for
Chief J ustice Venkatachaliah. J ustice Ray
and himself) who decided that the only
constitutional transgression was depriving
the communi ti es of their right to judicial
remedies through the pending sui ts.
u
III
But. before we proceed to examine the
differences, it is necessary to stress that the
majority judges had to virtually reconstruct
the Ayodhya Act to make it constitutionally
acceptable. The Act was a brazen, discri-
minatory attempt toempower the government
to appropriate the site from the Muslims and
hand it over lo the Hindus. It did not become
any more palatable because the government
made u half-prom t se to e xerci sc i t s di scrct i on
on the basis of the answer to the reference.'
4
In order to eliminate the government's
irresponsibly wide discretion.
1
' the court
read inlo the statute the creation of a statutory
receiver who would preserve the status quo
m favour of the makeshift temple andelTect
a transfer to whoever establishes title in the sui ts.There is nothing in the statute that
warrants this juristic creativity. The court
went furl her lo freeze the statusol the adjacent
land and made its acquisition temporary and
contingent on the decision of the suits." Il
is not clear why? But, having taken the creative step to save the Act, il had to be
almost entirely reconstructed in a way
that was nol free from di scri mi natory
incongruities.
It was inevitable that irrespective of who
won title, the bulk of the adjacent land
would go to either the Hindu trusts framed
lo receive the land or the Hindu owners
from whom the land was acquired. There
was little or no chance of the adjacent land
going lo the Muslims. More importantly,
there were unplugged loopholes in the novel
'statutory recei ver' interpretation. The
majority j udgment was almost explicit that
the status quo in favour of the makeshift
temple pending determination of the suits
would be maintained by the government
alone.
,K
But this was at variance with the
statute which specifically permitted the
maintenance of the status quo through an
"authorised person" (including any person,
body or trust).''
1
Since continuing Hindu
worship was part of the maintenance of the
status quo, could a Muslim trust or waqf
board be entrusted to maintain the statutory
freeze? And, if management could be
transferred to only a 'Hi ndu' authorised
person, was it not just dis-criininatory. but
also unfair since title lay with the Muslims
until proved otherwise in the suits. It is not
surprising that this incongruity is sought
to be exploited by the Congress in the
aftermath of the judgment.
4
"
Again, while the court ordered a status
quo on the adjacent land until the suits were
decided. Ihere is no such restriction in the
statute itself.
41
This is not to suggest that the
Supreme Court was nol cl ear in us
unequivocal direction that the government
(and not any authorised person) should
maintain the status quo in the whole area
4:
but si mpl y to poi nt to the l atent
inconsistencies that have arisen from the
majority not striking the whole statute down
and venturing into reconstructing the Act to
meet the crisis. At the end, many juristic
questions about the supcrimposition of a
'statutory receiver' on 'purposc-oricnicd'
acquisitions will remain an unsettled part of
the general law of acquisition.
Il is in this strain that one cannot but be
disappointed with the manner in which the
majority dealt with the charge lhat the Ayodhya Act was legislatively incompetent
and, therefore, anti-federal. for the majority
an acquisition statute as sui generis and
legally competent because the concurrent
list specifically gave both the union and the
slates the power to acquire property. It was
easy to find general authority to support this
proposition.
41
Hut. this answer, with respect.
misses the point. The government's entire
defence of the Act was lhat the statute was
necessary to preserve public order (which
is a slate subject). The Statement of Objects
and Reasons to the Act talked of setting up
a complex including a Ram temple, mosque,
amenities lor pilgrims, a library, museum
Economic and Political Weekly November 26, 1994
3035
and other suitable facilities tall of which are
state subj ects).
44
Thus, even though
acquisition was the means of achieving
certain public order and other purposes, the
pith and substance of the Act was that it fell
fairly and squarely in subjects exclusively
contained the state list. There was ample
precedent to support the view that the uni on's
general residuary power could not intrude
into the exclusive state list and that what
was relevant for determining legislative
competence was "the substance of the Act
and not merely the form and outward
appearance".
45
There was clear authority
that publ i c order l egi sl ati on was pre-
emi nentl y in the state l i st and that
acqui si ti on statutes whi ch wrongl y
transgressed into the union or state list (as
the case may be) were vulnerable to being
struck down.
46
All these arguments and
precedents were cited to the court (no less
in written submissions) but ignored.
47
The
majority clearly treated this ^anti-federal'
attack as a minor chal l enge which could
not be allowed to stand in the face of its
maj or creati ve i nterpretati on and its
validation of the Act as a whole. For the
minority which had struck down the entire
Act anyway on grounds of the violation of
fundamental rights, it was not necessary lo
exami ne the attack on the l egi sl ati ve
competence of the Act. But, the fact that
it did so renders our critique of the majority
j udgment in this regard more convincing.
J ustice Bharucha thought it fit to observe
that the minority "found the argument that
the Act was public order legislation and,
therefore, beyond the competence of
parliament very plausible."
4
'
IV
. Although the majority and minority were
agreed on the consequential result that the
abated suits would revive, whilst the majority
turned a blind eye on all maj or allegations
against the government's package, the
minority was in no doubt, that the Reference
and acquisition were, ex facie, discriminatory
and anti-secular.
4
' For J ustice BharucNaeven
if the Reference on a pure and controversial
question of fact was maintainable,
50
it was
not proper or permissible to accept this
Reference because it 'Tavours(cd) one
religious communi ty and di sf avoured]
another..., it [was] opposed to secularism...,
unconsti tuti onal ..., [di d] not serve
constitutional purpose..., [and] propose[d]
to use the court's opinion as a springboard
for negotiations..., [was difficult to answer
in the absence of the Muslims]... and would
impair (the]... Court's credibility."
51
The
minority j udges could have fol l owed the
exampl e of the maj ori ty j udges and
simply argued that the revival of the suits
made the Reference redundant. But they
correctly chose to' exami ne the govern-
ment's package on constitutional merits. If
the Reference was bad, the Act was no
better. The statutory freeze (even if
temporary) was discriminatory because it
"perpetuatefd] the performance of puja on
the disputed site... [where] the structure
had been destroyed".
52
On the government's
own admission this was done by "...a most
reprehensi bl e act [whereby]... the
perpetrators of this deed struck not only
against a pl ace of worshi p but at the
principles of secularism, democracy and
the rule of l aw."" For the minority j udges,
the Act failed to place both religions "on
a par".
54
It was "impermissible under the
provisions of the Constitution for the state
to permanently acquire a place of worship
to preserve public order" where disorder
was created by sheer "dint of numbers".
55
To "condone the acquisition of a place of
worship under these circumstances [was]
...to efface the principle of secularism from
the Constitution".
56
Striking down the Act
as arbitrary, discriminatory and anti-secular,
the mi nori ty went further to consi der
whether the uni on was competent to
legislate on public order, accepti ng as
"plausible" the argument that the federal
scheme and distribution of power between
the states and union had been transgressed.
57
J usti ce Verma rel yi ng on a motl ey
collection of authorities (including the
wri ti ngs of former Attorney General
Setalvad. the present president S D Sharma,
various judgments in the president's rule
case of 1994, chief justice Venkatachaliah's
paper on "law in a pluralist society" and
through him the views of Lord Scarman of
Engl and) gave due recogni ti on to the
centrality of secularism as part of I ndia's
constitutional scheme, but did not fully
delineate its ingredient elements even though
some pointed recognition was given to equal
treatment of all faiths and the requirement
of a benevolent neutrality on the part of the
- state towards all religions.
58
But the clue to
the thinking of the majority may well lie in
j usti ce Venkatachal i ah's emphasis on a
"tolerable accommodation of the conflicting
i nterests of soci ety".
59
A tol erabl e
accommodation there must always be, but
between whom and to what end? J ustice
Verma's judgment takes the principles of
such accommodation to unexplored limits
in venturing not just to adjudicate competing
claims in the public interest, but deciding
on the comparative significance of practices
across religions. For the Muslims to be told
that they must cease worship on a particular
site because of a compelling public or state
interest is one thing, but to insist on such
forbearance because Muslim prayer in a
mosque is less i mportant than alleged
nouveaux Hindu claims to pray at Lord
Rama's birthplace is quite another. Yet more
than a whisper of such an argument enters
into the majority verdict.
In evaluating competing equities on the
right to continue prayer on the site, the
majority use the concept of 'comparative
user
60
To argue that the Muslims could not
show better comparative use than the Hindus
seems, to say the least, with respect, a little
startling both on facts and in law. If the
Musl i ms had not prayed there since 1949,
it was because they were prohibited from
doing so by interlocutory restraint orders.
Thei r lesser comparati ve use grew out of
their respect for the rule of law. Before
1949, Hindu prayer at the 'chabutra' next
to the site was made possible only because
the Musl i ms in 1885 had graci ousl y
conceded a prescriptive right in the Hindus
to pray side by side without fear or friction
After 1949, Hindu prayer was enabled first
by the initial act of trespass whereby idols
were smuggled into the mosque. Thereafter,
the Musl i ms were again and again victims
of status quo orders."
2
The events that
occurred are as painful for secularism as
they are for the rule of law.
Following partition, many mosques had
been taken over in this way. They were all
ordered to be returned. In this case, the
chief secretary of UP's (Bhagwan Sahay)
order to commi ssi oner Nayyar was wilfully
disobeyed. Even the opening of the locks
in February 1986 was legally suspect. After
Munsif Hari Shankar Dubey had correctly
denied relief to a Faizabad lawyer who had
no standing in the suits, district j udge
Fandey granted this relief ex parte in appeal
on the assurance of the district magistrate
that the "Musl i ms could not be affected
by any stretch of imagination...",
61
When
the high court ordered status quo, it was
already too late and adverse to the Muslims.
Writs by Musl i m leaders and the Sunni
Waqf Board against this opening locks
order are still pending.
64
To now argue that
this interim openi ng of locks shows better
4
comparative use' seems unconvincing, but
remai ns much less troubl i ng than the
recognition which the majority j udges gave
to worshi p at the illegally constructed
makeshi ft templ e constructed after the
demolition for the purpose of computing
what constituted superior comparative use
by the Hindus. For the majority judges, the
Hindu community could not be punished for
what a few miscreants did;
65
and, in any
event, the Hi ndus suffered a collective
diminution of the full totally of Hindu
worship which was now limited to a single
'pujari'.
66
The fact that the building was a
mosque and Muslim prayer was going on
in December 1949 when the first trespass
was committed seems to have been accorded
a lesser significance as also the undeniable
fact that for over 400 years the site was
nothing if it was not the site of a mosque.
67
Before this imbroglio began, the Muslims
had possession. Their title remains, until
unsettled by the suits. The court's doctrine
3036 Economic and Political Weekly November 26, 1994
of comparative use was both elusive and
potentially dangerous. The question was
heiher the stats quo was constitutional and
iair. There was no running away from the
conclusion of the minority j udges that the
direct and inevitable effect of the statutory
freeze was patently unfair to one community
over another. No use of the doctrine of
'comparative user
1
, however skilful, could
obscure this.
What might Jully explain justice Verma
decision was their juristic conclusion that
the Muslims had no constitutionally
protected right to pray in a mosque at all\
Al ter some acri mony between the
Fundamental Ri ghts and Mi nori ti es
Commi ttee of the Constituent Assembly,
the I ndian Constitution chose lo protect noi
lust personal and religious beliefs but also
the day-to-day practices that are a part of
religion and defi ne it. however untidily."'
All of these were made subject to the 'police
power' (in the interest of public order,
health and morality secular regulation
ol financial, political or other secular
activity) and social reform (i ncl udi ng
throwing open public templ es)." In the
famous Snrur Math case ot 1954." the
Supreme Court (faced with the tasks of
distinguishing between 'secul ar' and 'non-
secular' activity to enable financial and
administrative accountability I rom Hindu
and other religious endowments
7:
created
an essential practices test whereby only
non-essential secular practices could ever
be amenable to secular regul ati on.
n
In time
- through a series of j udgments of justice
Gaj endragadkar
74
- this limited test for
determi ni ng the boundari es of secul ar
regulation seemed to have found a more
expansive significance. It was now sported
as a threshold test lhat consti tuti onal
protection would be denied to a practice
which was not essentia! of a religious faith.
J udges would, thus, become high priests of each
faith and be placed in the unenviable
position of deciding compl ex issues of
whether religious practices were essential
and therefore constitutionally worthy. I f,
m 1986. the Supreme Court told the Anand
Margis that performing the tandava dance
in public was not an essential practice
within.their faith.
7
' in 1992 the Calcutta
High Court decided that it was an essential
pail of iheir faith.
7
" In the Hahri masjid
ease it was strongly argued - on the basis
of observations I rom the National Anthem
case and otherwi se - that the essential
practice test must be restored to its original
limited function; and lhat the Supreme
Court's decision in theAnand Margis case
should be overruled by the Constitution
Bench. It was argued that it was not for
the court to tell adherents of a fai th what
their religion was and courts could only
reject vexatious and frivolous to
constitutional protection" which were not
bona fide. But the majority judgment Jailed
lo notice this aatack and. then, proceeded
to interpret Islamic practice w ith somew hat
startling results.
17
It declared that in order
lo claim constitutional protecti ons practice
must have some particular significance:
While offering of prayer or worship is a
religious practice. its offering at every
location where such prayers can be offered
would not be an essential or integral part
of such religious practices unless the place
has a particular significance for that
religion so as to form an essential or
integral part thereof. Places of worship of
any religion significance
tor that religion to make it an essential
integral part ot that religion stand on a
diflerent looting and have to be treated
di fferentl y and more reverenti al l y.
7
'
(Emphasis added.)
Thi s means lhat the plethora of local and
other religious practices which a court did
not regard as significant to the faith would
be deni ed consti tuti onal protecti on.
"Particular si gni fi cance" did not mean
significance to the local community but
si gni fi cant is terms of the uni versal
doctrines of the faith.
1
" Such an inter-
pretation is wholly inimical to any accept-
abl e concept of cul tural and rel i gi ous
diversity or lor plurality within religious
faiths themselves."" And. if proof was
needed of the awesome conscqucnces of such an
interpretation, the court concluded:
A mosque is not an essential part of the
practice of the religion of Islam and '
(prayer) by Muslims can he offered any-
where. even in (the) open/'
This means that while mosques can exist
as a matter of law. no mosque in I ndia
enj oys consti tuti onal protecti on. Thi s
applies as much to the J am-i-Masjid in
Delhi as any other Thei r functioning can
be interfered with by competent legislative
or executive action. This interpretation also
pl aces Musl i m pl aces of prayer at a
di sadvantage over Hindu places of prayer
even though the majority j udgment seeks
to level out di fferences in another part of
the j udgment by stating lhat all places of
prayer will be accorded a similar protection
tn respect of the acquisitions of sites of
worship.'
1
But, before we are out of the thicket
of this interpretation, we have to
grapple with yet another idea that is secreted
in the majority judgment, lust as a new
doctrine of 'comparati ve use' was invoked
lo defend the discriminatory oi l ed of the
act. an equally new doctruic of, ,mparative
significance was flouted to evaluate the
competi ng cl ai ms of the Hi ndus and
Muslims:
It may also he mentioned that even us
Ayodhya is said to he of particular
significance to otic Hindus as a place of
pilgrimage because of the ancient belief that
Lord Rama was born there, the mosquc was
of significance for the Muslim community
as an ancient mosque built by Mir Baqi
in 1526 AD. As a mosque it was religious
place of worship by the Muslims This
indicates the comparative significance of
the disputed sue to the two communities
and also that the impact of acquisition is
equally on the right and interest of the
Hindu community.
114
(Emphasis added.)
This lakes us into very dangerous terrain.
It may inadvertently provide support to the
general Hindutva exhortation to eliminate
all vestiges of Muslim rule where monuments
have been set up on sites which are claimed
to be of "particular significance' to them
Hi ndus. After this verdi ct, woul d the
government be justified in giving primacy
to si tes and practi ces of parti cul ar
significance of one faith over sites and
practi ces of another fai th whi ch the
government (or the court as the case may
be) regards less significant. And. if so. how
would such compari sons be made? If this
is good constitutional doctrine, the Places
of Public Worshi p Act 1991. which draws
August 15.1947 as the date on which status
quo of all religious places of worship would
be preserved, may have to be reinterpreted
or reconsi dered."
Having found that the right to pray in a
mosque is not an essential practice, it was
jelaltvely easy for the majority judges to
conclude that there was no discrimination
against the Muslims and no impediment lo
the site being acquired.'' On behalf of the
Muslims, it had been argued that I he site of
a mosque could not normally be acquired:
and. if it was for compelling public interest
reasons, each aspect of the acquisition would
have to be scrutinised for reasonableness.''
Si nce the court's 'statutory recei ver
interpretation of the Ayodhya Aci made the
acquisition more palatable, the majority look
the view that it did not have to enter into
this larger question.
But despite this disclaimer, the majority
ventured into this controversy, constantly
making the distinction between placcs of
worshi p of parti cul ar si gni fi cance and
ordinary placcs of worshi p. While the
sovereign power of acquisition would extend
to all, constitutional protections of religious
freedom (including the right of a faith to
property and'to manage its affairs >would
not per se "extend to the right of worship
at any and every place of worship"' The
point to be decided in this case was one lhat
had been left over from an earlier Supreme
Court case where it was suggested that the
court might be more wary of permitting
acquisitions which tended "lo destroy or
completely negative |a religion's)... right to
own and acquire moveable and immoveable
property for even the survival of a religious
institution".''The answer given by the court
may well negative constitutional protection
for all institutions of all faiths except, those
Economic and Political Weekly November 26, 1994 3037
ot particular significance. But, will this be
decided on the basis on a few half baked
suppositions (as was done with the Muslims
of namaz in mosques) or on a patielu
treatment of the doctrines and practices? If
so. arc courts equipped to take on this task?
The court's verdict that the right to pray at
a mosque us opposed to prayer in the open)
was not to be regarded as a constitutionally
protected essential practice of particular
significance must gnaw at the roots of any
version of plural secularism, surrendering
the property and practices of a faith to
extensive interference by the state and anni'
hilatingihc diversity of local practices which
make the I ndian subcontinent what it is.
To some extent the majority may have
foreclosed aspects of the issues to be decided
in the suits, including its assumpti on that
the principle of theShaheeil Canj ease that
a mosque can be lost by adverse possession
remains valid lor independent India.
44
'
V
Most reactions to the judgment have been
concerned with its consequences rather than
its reasoning. The minority correctly allayed
lears that chaos would follow if the whole
Act was struck down by pointing (Hit that
the courts had ample powers to appoint
receivers over the disputed site/" But, apart
I rom the majority j udges reading the concept of a statutory receiver into the Ayodhya Act,
the consequences of both j udgments was to
revive the lour pending sui ts.
0
There can
be little doubt that this solution is better than
the strange 'one question' Reference which
the government seems to have conjured out
of political thin air. In the suits. 40 is\ue'
have been chosen by the parties themselves.
They cover a wide canvass. A decision
according to law is preferable. The suits are
ready to be heard. There is no reason tor
further delay. The right to one appeal to the
Supreme Court is preserved. There is no
guarantee that the Reference would not take
an equally long time. There was every reason
n>believe that the Reference (which was.
<M facie. discriminatory according to the
minority judges) would not be acccptable to
the Muslim community or secure anything
but a suspect basis for a decision in favour
of the Hindus. Meanwhile, the government
is expected to preserve the status quo on both
the disputed site (including prayer at the
makeshilt templet as well as the adjacent
hind. II this new solution oflered by the
Supreme Court is to work, it needs patience
and statesmanship.
VI
I do not wish to get drawn into larger
controversies about I ndian secularism which
have found expressi on in political and
intellectual discourse in recent years." There
is a great deal that has been wri tten
vehemently criticisjng Nchru s secularism
as an artificial and, unreal i deol ogi cal
i mposition " No less significant is the search
for a communi tari an base for a new
secularism which is more tolerant of plural
diversity and less assimilationist in its
approach, More often than not. these
controversies revolve around ideal types in
whi ch straw i ntel l ectual creati ons are
dramatically annihilated by stirring (even
if often obscure) arguments. If the law is
also the situs of secular struggle, then
insufficient attention has been paid to the
manner in which secularism gets encoded
into the rule of law and democracy. Thi s
process is neither new nor uncontroversial.
For almost a century and a hal f' the 'l aw'
and l aw courts' have been called upon to
negotiate compromi ses bet ween groups and
communi ti es. Even in the consti tuent
assembly, the debates reveal an amazing
diversity of arguments and solutions (few
ot which have anything to do with Nehru).
A sensitive legal system does not just
imperatively lay down the l aw', but looks
around lor answers and negotiates solutions.
To some extent, the answers to sccular
claims do lie in strengthening dermtcratic
institutions and the rule of law. But, the
answers woul d themsel ves become
awkward and unfair if they stray away
I rom the mutuality of respect and concern
due to all faiths and if a premium is not
placed on the nght to he different, if the
Maw' conceals.many secrets, it may. in the
rough and tumbl e of its existence also find,
and consol i date, secul ar answers in
incremental ways that are both important
and meani ngful . Its hidden answers have
eluded satisfactory elucidation.
Y et. if the di fferences between the
majority and minority j udges are a reminder
of indeterimnacies. choices, preferences
and selective emphasi s in the l aw. the
Ayodhya j udgment must also reinforce the
warnl hg that struggles within the legal
system have to be fought over. Thi s was
a case about the government's package
solution on Ayodhya which the minority
found invidious and the majority had to
virtually rewrite and re-package. But when
all is said and done, the majority j udgment
is not a juristic victory for secularism: and
may trouble the secular cause for many
years to come.
Notes
1 R M Unger. Law in Modern Society:
Towards a Criticism of Smial Theory'
London. 1976. 47.
2 There is a distinction to he made between
a secularism lhat is imperatively declared
by law and the Constitution (on which sec
I) Smith. India as a Secular Slate (1963).
V P Lulhera. The Concept ofa Secular Slate
in India (1964), and esp P B Gajendragadkar,
Secularism and the Constitution of India (1971)
and M Chouse. Secularism. Society and the Law
(1973 ) and a secularism that is encoded in the
Law in the day to day legal struggles that manifest
its existence or abscehee (oh which much has been
written by J D M Derrett. Religion. Law and State
(1968)). Unfortunately, too much emphasis on the
declarations in the Indian Constitution have obscured
understandings of the relationship between Law' and
Secularism.
3 The Ayodhya J udgment on the Reference and
Acquisition is reported as Dr M Ismail Faruqui
v Union of India (1994) 2 (Supplement) SCALE 100
(hereafter Ayodhya J udgment). The government's
immediate reaction was at first muted (Pioneer.
October 25. 1994). then contrite (Statement of
Chandulal Chandrakar Hindu. The Economic Times,
Indian Express, The Times of India. October 26. 1994)
and. then, cheeky, to claim that the government's power
10 hand over the land to the trusts was unaffected
(statement of Law Minister Bharadwaj Pioneer.
October 26.1994). But the Congress's manifesto for
the elections remained silent on Ayodhya (see Pioneer
. The Times of India, 31.10.94, and editorials in those
papers. November I. 1994)
4 For BJ P responses see Pioneer. Hindu. Hindustan
Times, Indian Express (October 29. 1994 - on reference
to a "peoples court" and the need for amending legislation)
: Pioneer (October 31,1994) M M J oshi on electoral effect);
see further comment by Diwakar, Dreaming Spires Once
Again. The Economic Times. October 30, 1994; Soroj Nagi
. 'Seers' Trust in Rao May Erode'. Hindustan Times. October
30. 1994; A Bose. A Confused Parivar', Pioneer. October 28
, 1994.
5 Swapan Dosgupla, The Ayodhya Verdict: Delaying
the Inevitable'. Indian Express. November 3, 1994.
6 .See Radhika Ramaseshan. Arguing His Way to Fame
' (Pioneer. October 30, 1994) on the lawyer Abdul Mannan
of the Sunni Waqf Board; A A Engineer. 'A Landmark
J udgment'. Hindu. November 2. 1994; K V Ramesh
'And J ustice for All. Pioneer. October 26. 1994; S Sorabji.
The Ayodhya Verdict'. Indian Express. R Dhavan. its Finest
Tour' Erontline. November 1994 which strongly criticises the
judgment but welcomes its consequential effect. V P Singh
demanded the resignation of prime minister Rao [Hindustan
Times. November I. 1994). Mulayain Singh, chief minister of
UP. welcomed the verdict (Pioneer. October 25. 1994) even
though his government's stance in court was to be neutral
on the acquisition. The CPM still wants the matter to go to
the Supreme Court under Art 138(2) (The Economic Times,
October 26. 1992). That is along hurden some process which
would mean the same thing as trying the suits, but deprive t
he parties of an appeal to the Supreme Court.
3038
Economic and Political Weekly November 26, 1994
Note also editorials. 'A Sensible Verdiet'.
(The Time of India October 25,1994); Three
Cheers for the Supreme Court' (Pioneer.
October 25. 1994); 'A Visionary Response'
(Hindi October 26. 1994); K Nayyar, The
Unremitting Situation'. Indian Express,
November 14. 1994
7 Apart from various criminal law provisions
(Ss 149. I53A. 153B.295A. 504,505 Indian Penal
Code. I860; Ss 144. 196 Criminal Procedure
Code 1973) civil courts have a wide jurisdiction
to determine a wide range of disputes (see S 9 of
the Civil Procedure Code. 1980) and the higher
judiciary examines questions relating to funda-
mental rights and the exercise of public power
(Art 14-16. 21. 25-30. 32. 226 Constitution of India)
The involvement of courts in religious disputes
dales back to the establishment of the court system by the British
8 Sec Shahid Ganj case AIR 1918 Lahore 369: on
appeal AIR 1940 PC 119.
9 M H Qureshi v State of Bihar AIR 1958 SC
731 A H Qureshi v State of Rihar AIR 1961 SC 448;
Mohd Faruk v Stale of MP AIR 1970 SC 93 (on
cow slaughter). The questions are endless tor a samp-
le see R Dhavan. 'Religious Freedom in India (1987)
35 Anient an J ournal of Company Law 209 at 221..
10 Rev Stamslaus v State of MP AIR 1977 SC 908;
see further R Dhavan (supra n 9) at 229.
11 E g. In re Kerala Education Bill (1959) SCR 995
and other minority education cases. see R Dhavan (supra
n 9) 231-41
12 J agdishwaranamt v Police Commissioner Calcutta
(1984) I SCR 447 Cf Ruma Pal J 's judgment to the
contrary on facts in Commissioner of Police v J agdi-
shwaranand AIR 1991 Cal 263.
13 Bijor Entmdnnel v State of Kerala (1986) 3 SCR
518
14 Mohd Ahmad Khan v Shah Bano Begen AIR 1985 SC
945 followed by the Muslim (Protection of Rights)
Divorce Act No 10 of) 1986 which reversed it; see
further R Dhavan (supra h 9) at 241-50.
15 See generally R Dhavan. 'The Supreme Court and
Hindu Religious Endowments. 1950-1975' (1978)20)J ournal
of the Indian Law Institute (hereafter IILI)53-102 lor the
background and the Supreme Court's dispensation.
16 For a preliminary account of how the courts of the
'Raj' rewrote the dharmasasira see R Dhavan. Dharmasastra
and Modern Indian Society: A Preliminary Exploration'
(1992) 34 J ILI 515-540
17 The fact remains that the Constitution and other statutory
changes have fundamentally altered Hindu 'law' in respec
t of the rights of women and untouchables. Hindutva dare
not even whisper that a Hindu revival will jeopardise these
rights, which need to be expanded further. Instead Hindutva
attacks Islamic law for incongruities because that is electoralIy
more profitable.
18 They fall fairly within the concept of a civil dispute
(see Explanation to Sec 9 of the
Civil Procedure Code 1908). There is a
long century-old history of such disputes
being resolved by law courts. This has
been particularly true of dispute' over
religious endowments. E g. Ramalinga
v Sundara. AIR 1929 Mad 526 (where
Curgenen J hints that the (Hindu) District
J udge may have got involved in a dispute
about when the trustees of a temple could
celebrate Navaratri. a religious festival);
Narayan v State of Madras. AIR 1954
Mad 385 (where the hoard appears to
reject certain names proposed); Cotnntr HRE
v L T Swawiar, AIR 1954 SC 282; and K
A Samajan v Corning. AIR 1971 SC 181
appear to be riddled with long case histories
(on Samaras. see further A V Sahha v
Commr. AIR 1976 SC 475); note the
nominees in Namhoodnpad v C I) Board.
AIR 1956 TC 19 at prs 7-8 p 22; and the
very complex decision concerning the pious
nuns of Madhya Pradesh in State of Madhya
Pradesh v M S Convent School. AIR 1958
MP 362; Stale of Bihar v Bhahaprilanamla
Ojha 11959) SCR Suppl 624 is clearly a
case of government involvement in a dispute
between pandas and the priest; Note the
State selling right lo perform santhis in
temples hy auction in V Raman Etnhran v
Tahsildar. AIR 1960 Kerala 312; or where
the government appointed a management
committee by general resolution in respect
of a Bnihmo Samaj endowment and claiming
to follow American case law in Dipcndra
Nalh v Slate of Bihar. AIR l962Patna 101
For a similar ease of alleged into lie re nee
with the Churodhi community. see Slate of
Mysore v Charodhi Ahhyudhu 11972) 1
Mys L J 431. ()n the installation and removal
of idols and the response ot both government
ami the courts to local factional disputes see
Ramachamlra V Gavalaksha (1972) 75 Bom
L Rev 668: Bhikamchand v Kasturbhai
(1976) Bom 1905. For a view that previous
official policy was mure sensitive, sec
J Knshnan v O D M Committee. AIR 1978
Kerala 68. These arc a few illustrative
examples of direct government involvement
and how government is mobilised lo take
side' in socio-political disputes.
19 SeeA vodhya Judgment (supra n 3) at pr 146
P 54.
20 VHP answer to AIBMAC questionnaire of
October 16. 1992.
21 BiP While Pai'r on A uxlhxa (1993) pr 1.8
pp 153.
22 SeeHindu. Indian Express. ()eiober 27 and
28. 1992.
23 See the Union of India's While Paper on
Axtn Unit 19931pr 8 11 p 34 which mentions
the government' s promise of 1992 to rebuild
fhe mosque and the reference and
acquisilion'' package of December 27.1992
Till December 27. 1993. the government
siill talked of a prior Hindu temple on the site. In
Reference of J anuary 7. 1''93.
this was broadened to include any religious
structure.
24 The use of the term 'position' in Section
7( 2) of the (tali nance and. later. Act is wide
and ambiguous to extend and includc all or
any Hindu activities of any kind since it was
well known that Muslim worship had been
i nj unctcd by courts and the mosque
destroyed
25 For theDarshan J udgment seeVisit wa Hindu
Atlhivakta Sangh and others v Union of
India and other' (J anuary I . 1993.
unreported) in which the Hindu right lo
'darshan' at the site is accepted; and Lord
Rama is depicted as recogniscd by the
Constitution because the pictorial edition
or the Constitution included drawing of
Lord Ram; sec further. S Muralidhar The
Darshan J udgment" (1993) The hoovers
(April) 21-25
26 The Acquisition of Certain A rea at A voilh a
Ordinance 1993 (of J anuary 7) was debated
in the Lok Sabha on March 23-24, 1993
(see (1993) 20 LSD (10th scries) 462-88
(March 23. 1993) 702-719. 74.1-826
(March 24. 1993)) and Rajya Sabha on
March 29. 1991 to receive presidential
assent on April 3. 1991 (hereafter Ayodhya
Ordinance or Act as the ease may be)
27 For a text of the controversial recital see
Ayodhya Judgment (supra n 3) p 169.
28 See Minutes of the Meeting AIBMAC -
V H P (December 4,1990. J anuary 10.19911:
AIBMAC Press Release of J anuary 25.
1991; AtBM AC lo Prime Minister. <(>ctobcr
2, 1.992); AI BMAC reply to the VHP
questi onnai re (October 16. 1992).
Al BMAC's Statement on its Stand
(November 8. 1992).
29 Statutory provision was made for (his so
ihal the government could even entrust even
status quo maintenance to an 'authorised
person' (Sec 7(2) Ay dhya Ordinance and
Act). This was independent of the provisions
for transferring the whole or part of the area
to persons, bodies or trusts on such terms
as il thought fil (Sec 6<h Ayodhya
Ordinance and Ad). In J uly 1994. the
government l in anticipation of a favourable
j udgment) began ils i ni ti ati ve of a
Shankaraeharya linked irust from ijie
ramparts of the Red Fori as part of a Congress
celebration.
30 Section 8. Avttdhya Ordmame and At t
31 The Reference had asked an absurdly wide
question eover an area wider than the site,
lo cover a very wide time trame. wrongly
reflected antecedent negotiarory discussions
and put Muslims through a historical trial
without even asking the Hindus to prove
their ease.
32 Avoilltva Judgments (supra n 3) prs 140-
144 pp 152-51 (on the Ayodhya Act) prs
153-156 pp 156-57 (on the Reference) - per
Bharucha J
33 Ibid prs 43-66 pp 126-11 ton the Act) prs
86-89 pp 138-39 (on the Reference) per
Verma J
34 The promise was half baked because the
statement of the Union in eourt on Sep-
tember 14. 1994 let the government's
lulure use of the own open ilor the text
of this statement see Axodhxa Judgment
i suprn 31pr 111 p 145). During arguments
J ustice Ahmadi reminded the solicitor
general that the court was not there to
Economic and Political Weekly November 26, 1994
write a 'While Paper' for future negotia-
ti ons and l awyer Dhavan cal l ed the
government^Statement and Reference an
''instrument of political manipulation" 10
confront the Muslims with a fait accompli
even if they won. see further Bharueha J
in the Axodhva Judgment (supra n 3) prs
153-55 pp 156
35 Section 6(1) Aytnlhya Art which lawyer
Dhavan in court called "a veritable political
audi on",
3ft The concept of a "statutory receiver" is
entirely alien to any reasonable reading of the Ayodhya Act.
37 Ayodhya J udgment (supra n 3) pr 44 p 126.
pr 60 p | 1-32: pr 99 p 141 (concl usi on 6.
9 and H) per Verma J .
38 Ibid pr 4K p 273 pi 89 pp 138-39 pr 99
pp 141'42 (conclusion 4) per Verma J .
19 Ayodhya Act, Sec 2<bi read with See 7(21.
40 Supra n 3.
41 S 7(2) specifically permits the status quo
to he preserved by an 'authorised person'.
42 Supra n 38.
43 Aywlhyn Judgment (supra n 3) prs 29-31
pp 119-120 relying on State of Bihar
v Kameshwar Singh (1952) SCR 889: Dty
Conine. Kamrup v Durga Nath Sarma
(I 968 SCR 561
44 The lex I is in theAywlhya Judgment (supra
M pr J 5 p 108: sec Constitution Seh VI .
Lisi 11 I (public order). 7 (PilgrimagesI
12 (Library and Museum).
45 Gajapati v State of Orissa (1954) 2 SCR
1 ai 11'12 (explaining the doctrine of
colourahility I. The Ayodhya Act was a
colourable transgression by the union of the
exclusive domain of the stales. Further, the
union's general residuary power cannot
transgress the stale's exclusive domain (see
International Tourist (orporatton (1981)2
SCR 364 ai 372-73.
46 A combined reading of Sumilarus v Stale
46 A combined reading of Stanilaus v State ot UP (1977) \
2 SCR 611 at 618 and lshwari Khetan v State of UP
(1980) 3 SCR 331 at 353- 54
47 Preliminary and Final Submi ssi ons by
Rajeev Dhavan.
48 Ayodhya Judgment (supra n 3) at pr 159
P
I 5
49 Ibid pr 139 p 151-52. pr 144-48 pp 153-
54; pr 154 p 156 (per Bharueha J ).
50 Ibid, pr 151 p 155 (per Bharueha J ).
51 Ibid, pr 154 157 pp 156 (per Bharueha J )
52 Ibid pr 144 p 153 (per Bharueha J i,
5^ I bulpr 144 p 151 quoting the government 's
White Paper. . (I 993) pr 1.35 (per
Bharueha J )
54 I bill pr 146 p 154 (per Bharueha J ).
55 Ibid at pr 146 p 154 (per Bharueha J ).
56 Ibid at pr 146 p 154 (per Bharueha J )
57 Ibid at pr 159 p 157 (per Bharueha J )
58 I bid pr 34-42 pp 120-26. General
References to well known personages not
cited to the court is becoming increasingly
frequent.
59 Ibid pr 41 p 125 (per Verina J ). But what
determines the application of this 'tolerable
accommodati on' test: principled equily.
policy considerations to keep the peace.
political opportunismor ungainly mixtures
of all of these,
60 Ibid, pr 49 pp 127-28 (per Verma J ).
61 Mahant Raghubar Das v Secy of Stale (or
India Suit 61/280 of IK85. on appeal Civil
Appeal 27 of 1885.
62 Ct Ayodhya Judgment (supra n 3) pr 50 p
128 which scums to ignore the circumstances
under which Muslim Prayer was stopped.
63 Order of judge K M Sharma on February
I . 1986. The details of his wea' nril noticed
by Verina J .
64 Mohd Hashim v State of UP (WP No 746
of 1986); Sunnt WaqfRtmrd v State of UP
(WP Nt 3106 of 1986)
65 Ayodhxa Judgment (supra n 3) pr 55
pp 129-30 (per Verma J )
66 Ibid al pr 56 pp 130. where Verma J finds
it "difficult to visualise how Section 7(2)
can be construed as a slant in favour ot the
Hindu communi ty and. therefore, anti-
secular". He goes on to sympathise that the
"Hindu community must, therefore, bear the cross on its chest, for the misdeed of
the miscreants reasonably suspect'J io
belong lo I heir religious fold". What was
overlooked was that if 'was those very
miscreants who e rented the make shift
temple and who were thus accorded the
right to prayer not the whole Hindu
community.
67 Ibid pr 54 p 129 where Verma J simply
assumes thai the mosque has no 'particular'
and therefore a l esser 'comparati ve'
significance.
68 This is the test for determining when a
fundamental nght is infringed see Maneka
Gandhi v Union of India AIR 1978 SC 597
at pa 66-68A pp 632-35.
69 R Dhavan. Submission reported in (1994)
Supplement 2 SCALE pp 39-41 referring to
B Shiva Rao's Framing of the Constitution
i 1966-8). For discussion in the Committee
II, Shiva Rao 118-31. 140'1; 143-6. 200-
08. 264-67, 290. 298. 269-70. 300 at 302.
305) and the discussions in the constituent
assembly (IV CAl ) 485-503(May 1.1947).
V CAD 157-8, Aug Ml 1947); VII CAD
866-886 (December 7. 1948).
70 constiturion of India: Articles 25'26. This
classification is mine.
71 Commissioner for HRE v L T Swtimiar
(19541 SCR 1005 al 1024-025
72 See generally K Dhavan (supra n 15).
73 Comtiusstimer lor HRE ... (supra n 71)
where the rej ecti on of the Attorney
General 's wider argument in favour of
regulation is made explicit (at p 1025)
Note the wide definition to religion in
Ratilal v Slate of Homlmv (1954) SCR 1055
at 1063. 1065.
74 b g. Ourgah ( ommittee v Syed H us sain Alt
<1962) I SCR 383 al 41 M2: Sarup Singh
v Stale of Punjab AIR 1959 SC 860 pr 6
p 865; Tilkaxat v State ofRajasthnn (1964)
I SCR 564 cf Chinuppa Keddy J in Rifoe
Emmunnet (supra n 13) at 533 talcing a
seemingly contrary view.
75 Jagdishwaranand (Supreme Court Case -
supra n 12).
76 Jagdishwaranand (Calcutta High Court
Case - supra n 12).
77 Ayodhya Judgment (supra n 3) pr 81-85
pp 136-38 (per Verina J ). This summary of
the duly to pray in a mosque being incidental
to Islamis both startling and. I amadvised,
in correct.
78 Ibid pr 81 pp 136-37 (per Verma J ).
79 Note the celebrated controversy in the 1880s
between J H Nelson and his government that
local custom nol the Dharmasastra was
determinative of personal law rights in
Hindu law: see Dcrrett. J H Nelscn A
Forgotten Administrator-Historian of India
in C H Phillips icd). Historians of India.
Pakistan and Ceylon (1961) 354-72
80 This interpretation is over-intcgraliomsL
seeking lo rely on texts rather than the
practices of people as ihcy live, worship,
pray and believe.
81 Ayodhya Judgment (supra n 3) pr 85 p 137
(per Verina J ).
82 The learned judge leaves open the criteria
for 'particularsignificance': is it theological
or community sentiment
83 However the iudgment suggested all sites
of Worship will be treated equally (see
Verma J in Avodhya Judgment (supra n 1)
pr 77 p 136 pr 83 p 137) However this
equality may be eroded by the use of the
'essenti al practi ce' and parti cul ar
significance' doctrines
84 Ayodhya Judgment pr 54 p 129 (per
Verma J i
85 Places of Public Worship Act 1991. Since
the Supreme Court has superimposed the
consti tuti onal task of "parti cul ar" and
"comparative" significance, this could have the effect of invalidating the August 15.
1947 baseline consecrated by that Aci.
86 II is difficult to accept that (he doctrines
of 'comparative user' and comparative
significance' did not influence each other
87 Submission of K Dhavan in reply, relying on
O'Connor J inEmployment Oiv v Smith (1990)
108L Edn 876 and various Indian and other
authorities lo show the Ayodhya Act to be
disproportionate, arbitrary, overbroad and
unnecessarily extended in its Sweep.
88 Avodhya Judgment (supra n 11 at pr X(l p
136 and also pr 77 p 136 (per Verma J )
89 Acharya v State of Gujarat (1975) 2 SCR
317 at 327-28
90 Ayodhya Judgment (supra n 1) at pr 73 p
135 pr 83 p 137 (per Verma J i
91 Ibid pr 147 p IVI (per Bharueha J )
92 The remai ni ng ''suits are Gitpal Singh
Visharad v zuroor Ahmad (Suit 2 til 1950j.
Nirmohi Akhara Zuroor Ahmad (Suit 26
of 1953). Sunnt Central Hoard of Waqfs v
(topalSingh VisharadiSuri 12 of 1961)and
Deoki Nandan Agarwat's suit on behalf of
the deity (Suit 236 of 1989)
93 See generally. 'Secularism Modernity and
the Stale'. Economic and Political Weekly.
J uly 9. 1994
94 For a defence of Nehru's on law and the
Constitution see R Dhavan. 'I ntroduction'
in R Dhavan (cd). Nehru and the
Constitution (1902) general!)
3040
Economi c and Political Weekl y November 26, 1994