AWAITING REAL CLOSURE

Balance of probabilities argument isn’t convincing

The long-awaited Ayodhya judgment has raised hopes of bringing to an end the land dispute in the eastern Uttar Pradesh city — something that has, over the decades, played a crucial role in the transformation of Indian politics and society. The Supreme Court’s judgment is particularly careful to locate the reasoning for its decision purely in the legal sphere, insisting that while the dispute may have political and religious implications, as far as the court is concerned it is merely a title dispute, if one of great complexity. In other words, the court’s decision can be seen as a clear attempt to apply secular and constitutional principles to the Ayodhya dispute, rather than using the judiciary to pronounce on history and religion. The Allahabad High Court decision, which ordered a trifurcation of the land between the three sets of applicants — so, in effect, one third came to Muslim and two-thirds to the Hindus — was marked by an excavation of historical records and of theology. The apex court judgment puts much less strain on the secular nature of jurisprudence.

That said, questions can and should still be asked about how the Supreme Court made its final decision. Several problematic points stand out in the series of arguments that led the court to award the entire disputed site to the Hindus, with some compensatory land to be given to the Muslims. First, the conclusion, to deny the Muslim claim completely on the “balance of probabilities”, is odd, given that the Hindu applicants never furnished proof of their continued worship in the inner courtyard. The fear is that this application of the “balance of probabilities” might conceivably be seen in some quarters as allowing political considerations about the final status of Ayodhya to enter the calculation. Second, the court takes the opinion that the entire site is “composite”, which rules out any division in the first place, even if such a division was indeed the historical practice prior to attachment in the last century. Third, the court considers two sections of the disputed site — the “inner courtyard” and “outer courtyard” of the erstwhile mosque — and notes that while there are records of Hindu worship in the outer courtyard, the Muslim applicants have failed to demonstrate continued worship in the inner courtyard.

However, the broader point is that the court judgment, while imperfect, does have the potential to bring closure to this long-running issue. In this context, all political parties and stakeholders in the dispute, right from the prime minister, deserve commendation in that they have taken much of the political heat out of the question in their statements. The prime minister himself cautioned the nation, in advance of the ruling, to not see the judgment in terms of “winning” or “losing”. It is to be hoped that the establishment and management of the trust will be similarly inclusive and lack triumphalism, which could open the wounds the court has sought to close. The court, which has been scathing in its judgment about the 1992 demolition, must also ensure that cases related to that breach of law be concluded expeditiously, and that the guilty is punished. That will provide real closure, and allow India to move forward. The law must be seen to be enforced, and then national politics can emerge from the long shadow of Ayodhya.