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Ayodhya ordinance may pit President and Supreme Court against each other

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The Ayodhya issue has seen 14 prime ministers and several legislations, but the solution won’t come from govt or judiciary.

With the Supreme Court deferring the crucial case of Ram Mandir-Babri Masjid dispute to January 2019 saying that an appropriate bench would be constituted to hear the matter, the chorus for Parliament legislation and an ordinance have increased. The RSS has publically suggested that the Ayodhya issue can be resolved only through enacting an appropriate law in Parliament.

The Supreme Court was hearing petitions challenging the Allahabad High Court verdict, which ruled that the disputed land in Ayodhya be divided into three parts. The Ayodhya Ram Janmabhoomi case, spanning nearly seven decades and surviving the Mughal and the British Raj, has seen 14 prime ministers since Independence. Prime Minister Narendra Modi is the first prime minister born after Independence who is now seized of the Ayodhya issue. Of course, he is neither new to the issue nor an outsider to the agitation to build a temple at the disputed site.

Also read: Explained- All things Babri, Faruqui and Ayodhya

More than three crore cases are pending in Indian courts, and the Babri Masjid-Ram Mandir issue is one among them.

Never before in the history of court battles had a small piece of land measuring 2.77 acres been subjected to so much legal, social and political upheavals as the Ayodhya land, where supposedly a temple was destroyed and a mosque built by Mir Baqi, believed to be Babur’s army chief, in 1528. In 1991, the government of Uttar Pradesh acquired the land around the structure for the convenience of devotees coming to worship in the Ram Temple. Some say that the place was not being used by the local Muslims to offer prayers. On 6 December 1992, the dilapidated structure (Babri Masjid) was demolished by the Kar Sevaks.

The Union government under PM Narasimha Rao went into damage control mode and brought out a law called “The Acquisition of Certain Area at Ayodhya Act, 1993”. Through this Act, the central government acquired all rights of property whether movable or immovable in and around the Ram Janmabhoomi-Babri Masjid complex. Section 4 (2) and (3) of the Act specified that on the commencement of this Act, “any suit, appeal or other proceeding in any respect of the right, title and interest relating to any property, which was thus vested in the central government, pending before any court, tribunal or any other authority, shall abate”.

Besides, the Act in Section 6(1) also provided that the central government can hand over some or any extent of the land to any authority, body, trustees of any trust set up on or after the takeover of these areas, for any activity or construction as the government may deem fit. The Act was challenged, but the Supreme Court in 1994 upheld the Act. However, it struck down Section 4 (3), thereby reviving all the litigations and asserting the supremacy of the judiciary over legislature to decide the fate of the cases.

Also read: SC is right, no need to rush through Ayodhya verdict

Surprisingly, subsequent governments decided to fight the cases in court rather than wrest control of the issue in Parliament.

Interestingly, there is also an argument that the 1993 Act can be amended by Parliament and included under the Ninth Schedule of the Constitution. Once a law is enacted and included in the Ninth Schedule, it gets protection under Article 31-B (validation of certain Acts and Regulations) and is not subject to judicial scrutiny.

The Ninth Schedule, the first amendment, was introduced by PM Jawaharlal Nehru to keep certain agrarian laws, particularly those on land reforms, beyond the scope of judicial review. But subsequently, in 1973, the Supreme Court through a nine-bench judgment ruled that the insertion of a bill in the Ninth Schedule is not controlled by any defined criteria by which the exercise of power may be evaluated. The insertion of the Ninth Schedule nullifies Part 3 of the Constitution that deals with fundamental rights. And there is no Constitutional control over it. The Supreme Court thus ruled that the supremacy of the Constitution mandates a mechanism be set up to test the validity of legislative acts through an independent organ—the judiciary.

Also read: Ayodhya issue may not linger beyond 2019 elections

Thus, the option of resolving the Ayodhya issue through a bill in Parliament does not enjoy judicial immunity. The demand for an ordinance also is not an easy option as it will require the President of India to issue it only if the situation so warrants. Again, any such ordinance will have to be ratified by Parliament within six months and cannot be promulgated during the session. With the 2019 elections approaching, Parliament will be in session for less than six months. Also, the ordinance itself can be challenged in court thus bringing two Constitutional authorities, the office of the President of India and the Supreme Court in direct confrontation.

The Ayodhya issue is no longer a religious one. And it has now gone beyond the confines of Parliament and the courts. It is now only up to the sane elements of the country to come to a negotiated settlement. But they are an endangered species in India today.

The author is former editor of ‘Organiser’.

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  1. Ram mandir dispute has been historically and intentionally left unresolved by ruling Black Englishmen when Britishers left. The British policy of Divide and Rule has been succesfully implemented all through the decades so that friction between caused by Temple dispute can be used to keep Muslims on ransom so that to reap electoral benefit for decades. Since 7 decades in the name of Mosque the Muslims have been marginalized, kept uneducated and poor. Rest assured, the Black Englishmen will keep this dispute alive till Grandson of Rahul Gandhi becomes PM candidate.

  2. Hindutva groups have built up a hysteria around Ram temple at the disputed site as if it is the wish of the majority of Hindus. Truth of the matter is that the only body among Hindu fraternity that ever went to public for their vote — the BJP — had Ram temple mentioned almost like an afterthought in their 2014 election manifesto, and in that too, about the site of its construction, the BJP promised that it will go by the court’s decision on the matter. The issues on which BJP won the 2014 election were related to the MATERIAL side of a voter’s life — 15 lakh rupees, jobs etc; the RELIGIOUS side of a voter’s life was mentioned only as a footnote.

    Other than the BJP, no other organization of Hindu fraternity has ever gone to people for their votes on its religious agenda like a Ram temple on EXACTLY THE SAME SITE, but they have always claimed that a majority of Hindus are with them on this issue. True, all Hindus would want a Ram temple in Ayodhya, but how many of them would insist on having it at THE SAME SITE which has a taint of Hindu hooliganism attached to it is something the RSS and its affiliates are unwilling to contemplate. The situation has come to such a pass that they are now threatening to launch a 1992 type of agitation which, given their money power to attract footsoldiers, can become a major law and order problem.

    In this scenario the alternatives to maintain peace along with justice are few:

    1) courts should declare an indefinite moratorium on construction of ANY religious edifice on the disputed site
    2) entire U.P., and if required the entire country should be put under ARMY CONTROL
    3) all Hindutva groups that claim to work in public interest should be forced to enter political arena to seek people’s mandate and hence justify their legitimacy. After all, isn’t this why we criticise Hurriyat Conference in Kashmir, that they are not elected, but still claim to represent people’s wish? They are called “separatists”; aren’t the self-promoted, self-legitimized Hindutva groups also “separatists” in a way?
    4) all such bodies as mentioned in 3) above who fail, or resist to comply SHOULD BE BANNED, and if this decision is proving difficult to implement, then point 2) above should be invoked.

    ONLY LEGITIMATE PEOPLE’S (read POLITICAL) PARTIES SHOULD BE ALLOWED TO SPEAK ON PEOPLE’S ISSUES, and that too, not in a surreptitious but direct manner.

  3. This is one of the most complex and emotive issues in our public life, has been so for a generation. One practical difficulty that would inevitably arise in the effort to find a negotiated settlement is that there is no unified / codified leadership of the nearly one billion strong Hindu community. That holds with equal force for Indian Muslims as well, about 170 million of them. It is not as if there is a dispute where the Vatican and His Holiness the Pope can take a final decision on behalf of the Roman Catholics. While it is true that the litigants now before the apex court belong to these two communities, it would be a stretch to believe that both sides could withdraw the suit and come to an out of court settlement that would be universally accepted with good grace. 2. The other fact that cannot be glossed over is the demolition of the Babri Masjid on 6th December, 1992. A trial – expedited under directions of the apex court – is under way to determine guilt or innocence. Had this tragic event not taken place, the prospects of a peaceful settlement, which could possibly have involved construction of a mosque at an alternate location, would have been better. 3. In the facts and circumstances of the case, it may be prudent to await the outcome of the title suit now likely to be heard by the apex court in January 2019. Notwithstanding the emotional response to its Sabarimala verdict, the Supreme Court remains one institution whose judgments are believed by almost all Indians to be completely fair and impartial.

  4. Very well said, Mr Chari. Congratulations! I quote the last para of your article:

    “The Ayodhya issue is no longer a religious one. And it has now gone beyond the confines of Parliament and the courts. It is now only up to the sane elements of the country to come to a negotiated settlement. But they are an endangered species in India today.”

    I will only request one modification in the last line: please call them… a RARE SPECIES, and not an ENDANGERED SPECIES!!

    I will quote two lines from Sahir Ludhyanvi:

    Wo afsaana jise anjaam tak laana na ho mumkin,
    Usse ek khoobsoorat moad de-kar chhodna achha.

    A rough translation would be:

    “A tale that defies a logical conclusion,
    Is best left with a sweet turn at the end.”

    Mr Chari, I only hope that no one reads all my comments on THE PRINT, otherwise she/he will call me a “loony obsessed with his ideas”. Because I am going to suggest the following for the FOURTH time in total, and for a second time just today:

    “Ram temple and a mosque should be constructed at OTHER sites within Ayodhya, and at the DISPUTED SITE the following should be constructed:


    (I hope I won’t become “endangered” for saying this! Haha. Just kidding.)

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