Fundamentalism and judicial fundamentals in India

The recent judgement by the Allahabad High Court about the Babri mosque site in India revealed some interesting facets of the Indian polity. Fundamentalism has taken precedence over judicial fundamentals in India in a way that does not portend well for the future of the country and its internal cohesion.

The Babri mosque CONTROVERSY is, at its core, a political phenomenon. However, at the same time, the Babri mosque COURT CASE is technically a land dispute. The controversy is not the same as the court case. It is not clear if the communal parties involved in the controversy ( not the court case ) are ready to accept the court's verdict if it does not help further their divisive aims. If one or more parties have laid claim to the site, the ownership dispute must be decided first before the question of who builds what on that site can be considered. The desire of communal groups to build this or that on that site cannot take precedence over the issue of ownership of the land. In the case of a verdict that looks partial to one or more communal groups, riots are a definite possibility in this kind of case. To what extent a court can and should take this kind of danger into consideration is an interesting question that scholars of jurisprudence can debate to death. However, a few things about how Indian judges in places like Allahabad think can be gleaned from the recent judgement. Statements by judges to the effect that the site is " the birthplace of Ram " or that the site is " the birthplace of Ram according to Hindu belief " do not inspire confidence in the Indian judiciary as one that can be objective, impartial or competent.

A court can decide disputes and impose sentences on those who have broken the law. A court can direct a government or a group to work in such a manner as to preserve communal harmony. However, there is only so much the judiciary can do for communal harmony when there are powerful political groups hell-bent on fostering inter-communal hatred. In a country where state governments led by communal parties have been known to adopt a posture of passive collusion while blood flowed due to communal riots, the ability of courts to ensure communally amicable outcomes is limited. The recent Allahabad High Court judgement about the Babri mosque site is a case where the court has seemingly tried to juggle two aims - that of deciding the ownership of a site and also to ensure outcomes that are acceptable to different communally sensitive groups in the country. In the process of doing so, the judges have made some strange pronouncements and have set some dangerous precedents. For one, the judgement sets the ridiculous precedent that a judge can decide the birthplace of a mythical character. It sets the stage for other potential judgements where religious fundamentalists in India will demand that the court put a stamp of approval on their myths and personal beliefs. The second dangerous aspect of the judgement is that extraneous considerations having to do with religious beliefs have been made into explicit justifications for judgements concerning allocation of ownership of a site.

It is not the job of judges to publicly bless anyone's religious beliefs. That is the job of popes, swamis, imams etc. In a Western country, statements of this sort by judges would elicit howls of protest about judicial activism. In the ultimate analysis, labels are irrelevant. Only the facts matter. Activist or not, the judges who have made these parochial considerations into the basis of their ruling have, by their statements, cast serious doubts about the quality of Indian jurisprudence, about the character of the Indian nation and about the ability of the Indian system to prevent a slide towards a Hindu theocracy.