Subhas Chandra Pattanayak
A verdict that does not stand with the spirit of the Constitution is more dangerous than the relief it offers. The verdict of the Lucknow bench of Allahabad High Court on Ayodhya, is one such verdict. It has divided a sensitive portion of the soil of secular India on communal line besides being careless about two articles of the Constitution – Article 49 and 51 A – that are such unavoidably essential for survival of India that the constitution-makers have not thought of making them enforceable by any court just as breathe taking is not made enforceable by any court..
The Constitution of India under Article 49 stipulates, “It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be”.
The Article is placed under the Directive Principles of State Policy under Part IV of the Constitution.
It is being pleaded that directive principles are not mandatory in view of Article 37. This pleading is based on wrong notion.
True, the Article 37 begins with the words, “the provisions contained in this part shall not be enforceable by any court”. But the Article does not end here. It proceeds to say in the same sentence that the Directive Principles are “fundamental in the governance of the country”. Here lies the prudence of not making these Principles enforceable by any court. Let us look at it.
Medicines are essential to save life. But administration of medicine is not enforceable by any court. It is left to medical wisdom. In fact, medical practitioners enforce medicine through their prescriptions as is evidenced in the fact that medicines are administered not according to choice of the patient, but according to decision of the doctor. Law has not given the courts any power to make administration thereof enforceable; though a doctor can be punished if a patient suffers due to wrong administration of medicines.
If administration of medicine becomes enforceable by any court, then medical wisdom under judicial overture would be too burdened to serve the patient properly. That would then become catastrophic. That is why law has not made administration of medicine enforceable. Similarly, the Constitution makers have thought it prudent to debar courts from enforcing the Directive Principles of State Policy.
Fundamental in the Governance
They have made these Principles “fundamental in the governance of the country” and therefore they have not made them enforceable by any court. Rather they have made it clear that it shall be the “duty” of the government(s) created by the Constitution to make Laws for making these “fundamental” Principles control the governance. When these Principles are earmarked as “fundamental” and the State is assigned with the “duty” to ensure that the governance is controlled by them, had provisions been specifically made to make them enforceable by any court, it would have been equal to prejudging the future government(s) of free India as anti-people and irresponsible, which the founding fathers could not have done.
So, in saying that the directive principles shall not be enforceable by any court, the founding fathers had merely shown the courtesy that fathers show to their sons while expecting that their directions the sons must honor.
Directive Principles are not Optional
On the other hand, the expression that directive principles shall not be enforceable by any court does not make them optional.
It was not thought of making them enforceable because they are so essential for life of the country that no law was needed to point out that they are required to be carried out, exactly as breathing for a living person eager to live is not required to be enforceable by any court.
Yet, this particular Article is so importantly important for existence of India that the founding fathers have made it a must for the State to implement it sans any negligence and compromise. Their deliberate use of the words “shall be the obligation of the State” makes it a “must” for the State to carry out the directive principles enumerated without fail. Therefore, the State is “under obligation” to act according to Article 49 to protect the monuments like that of Ayodhya. Any requirement made a must under the law entails that any dishonor thereof must be punished. The verdict, even though waded through topics covered by this Article, is silent about this aspect.
Significance of ASI Report
It has accepted the Archaeological Survey of India (ASI) report that the Babri Mosque in Ayodhya was erected on the spot where earlier there was a huge structure. “There is sufficient proof of existence of a massive and monumental structure having a minimum dimension of 50 x 30 m in north-south and east-west directions respectively just below the disputed structure”, the ASI has said. But it has not said as to what this structure was. The report rather says, “It is worthwhile to observe that the various structures exposed right from the Sunga to Gupta period do not speak either about their nature or functional utility as no evidence has come to approbate them”.
So, it is wrong to say that the excavated structure was a Hindu temple.
The objects excavated are suggestive of connection with Buddhist Tantra. And if any observation is necessary, it may be said without any prejudice that Hindu empires had destroyed a huge Budhist monument to modify the same for their use on which the Muslims might have superimposed their structure. In fact the ASI has described how the structure has been tampered with from period to period. But it has not brought out any object that can establish birth of Ram in the place.
The ASI report is too clumsy to have any judicial approval. However, when the Court accepted it as an expert opinion, once it was accepted that the place belonged originally to the Hindu community, it should have been decreed that the place belongs to the Hindus notwithstanding the Muslim structure erected over it during the Mogul period.
On the other hand, it has not been shown that the Babri Mosque was erected on an existing and functioning Hindu temple. Rather the excavated materials are considered to be belonging to the period from Sunga to Gupta dynasties, which “do not speak either about their nature or functional utility”. Hence it should be safely assumed that the Mosque was built on an unclaimed abandoned site which in the past was an active place and therefore was a property either of the heirs of Mogul who had occupied the place and built the structure or to the community that had here the tombs of martyrs or the Mosque.
Installing the Idols was a Communal Offense
In this Mosque, as determined by the Court, the Idols of Ram and others were installed in the intervening night of 22/23rd December, 1949. This determination makes it clear that the images were placed there clandestinely in the midnight when communal frenzy had engulfed India and the scenario in India was so communally inhuman that the Hindu fanatics, through one of them, had killed Gandhiji because of his humanitarian sympathy for the minority community of Muslims. Thus, installation of the Ram idols was a communal offense.
By then the Constitution of India had been adopted. It was adopted on 26 November 1949. And in this Constitution, Article 49 had stipulated that it “shall be the obligation of the State to protect every monument or place or object of artistic or historic interest” from “spoliation, disfigurement, destruction, removal, disposal or export, as the case may be”.
So, this Article is absolutely applicable against Babri Mosque spoliation and disfigurement that occurred “in the intervening night of 22/23rd December, 1949” when idols of Ram were installed there clandestinely.
The Court has Failed
Instead of condemning the communal offense with retrospective effect, the Court has sanctified it by not asking for removal of the Ram idols from the Babri Mosque to restore it to its pre-December 1949 condition. Planting the Ram idols in the Babri Mosque “in the intervening night of 22/23rd December, 1949” was a criminal affront to the Constitution of India adopted on 26 November 1949. But the Court has given it legal approval.
On the other hand, the Constitution stipulates, “it shall be the duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform” [Article 51A (h)]. When this is a duty bestowed upon every citizen, Judges can have no luxury to stay out of this. But this Article is contravened in the judgment that declares that the disputed place is the birthplace of Sri Ram and because of that the place itself is a deity, even though the ASI has not linked this place to Ram in its report.
Searches have been made for the purpose even in immensely honored works of literature that are improved upon Valmiki’s original work on Ram. As for example, search has been made through Raghuvamsa of Kalidas. Nowhere there is any identification of any particular spot therein as Ram’s birthplace. In fact many attempts to mislead the Court through religious literature have been rejected as irrelevant and tactics of linking speculative scriptures to historicity has not yielded result. But yet, the Court has determined that the disputed spot is the birthplace of Ram.
Ram is a character in Valmiki’s Ramayana written by him to project and propel his own outlook which was patriarch in nature. Latter, Muni Vyasa had created Sri Krushan as a supporter of matriarchy.
So, Ram as well as Krushna are characters to be studied on sociological perspective, not on fictitious legends coined around them by the authors of Purans and poems.
The instant dispute had given a grand opportunity to the Court for freeing Ram from legends and to place him in sociological perspective for betterment of our democracy. But it failed to use the opportunity.
The Danger Ahead
If end of communal turmoil over the patch of land was the intention of the Court, it should have been better to free the land from all sorts of religious activities and to hand it over to the State for establishment of a common house on the spot for research on sociological aspect of religions.
But it should never have been partitioned on communal line, specifically giving judicial stamp of approval on division of a land of the country on basis of equal share thereof amongst all the rival claimants.
Unless the Supreme Court nullifies this judgment, it would open up judicial ways for fragmentation of the country on communal basis in terms of equal share of the land amongst all the religious groups in future.
Sad in deed.