Indians are not over the British Raj yet. Ayodhya judgment is a thriving example

Ayodhya judgment is a vindication of Indo-British encounter and a clear signal that we are the members of ‘Anglosphere’.

A group photo of the five judges who delivered the verdict in the Ayodhya land case, at the Supreme Court in 2019. Justice Abdul Nazeer is on the far right | Photo: PTI

The Supreme Court’s Ayodhya judgment has been welcomed by a lot of people who can be described as detesters of the British Raj. And yet, oddly enough, the argument can be made that the judgment represents a vindication of the Indo-British encounter and a clear signal that we are members of what the Canadian writer Mark Steyn refers to as the ‘Anglosphere’.

Consider these seven facts:

Fact 1: The Ayodhya judgment by the former CJI Ranjan Gogoi-led Constitution bench is written in English. And by God, is it written in lucid, stately, magisterial English. The prose style is reminiscent of Laurence Sterne and Charles Lamb, both of whom would have been more than proud to own it.

Fact 2: Not satisfied with adopting a masterly English prose style, the Ayodhya judgment is freely sprinkled with Latin expressions. “Res judicata”, “Status quo”, and “Ultra vires” occur quite casually.

Fact 3: The entire Babri Masjid-Ram Janmabhoomi title dispute has been framed around the principle of the existence or the absence of “adverse possession”, and that too in a peaceful, continuous, undisputed manner. The very concept of adverse possession is uniquely ensconced only in Anglo-Saxon Common Law. It does not exist in other legal systems.

Fact 4: The manifestation of Rama, a Hindu deity, is treated as a “juristic person”. The legal idea of a deity being considered a juristic person is derived from the courts of British India and has been reaffirmed by the Privy Council in London. As recently as 1988 a British high court accepted the plaintiff’s argument that Shiva was a juristic entity in the celebrated Pathur Nagaraja case. In 1991, the Court of Appeal and the House of Lords on appeal confirmed the 1988 lower court judgement. The “owner” of the statue was Canadian—he went to the Alberta Court, which accepted the House of Lords judgement. As a result, the famous Nataraja statue (sorry, juristic entity) returned to India, where presumably the entity wished to reside.

Fact 5: The crucial decision has been made on the basis of “preponderance of probability”, a central idea in all civil disputes in Common Law jurisprudence. (Criminal cases require to be decided beyond “all reasonable doubt”).

Fact 6: The five Supreme Court judges have been very courteous in their praise of the lawyers who appeared before them. They have been faithful to the traditions of the British Raj courts. We have all heard of how courteous British judges used to be to the famous Sir C.P. Ramaswami Iyer, when he appeared before them.

Fact 7: The judgment ends with an application of the principle of “equity”, another unique Common Law idea, which does not occur in the Code Napoleon and Continental Law (or Civil Law). “Equity” has been a recurring phrase in English courts for some 800 years. Barrister Mohandas Karamchand Gandhi was very fond of the principle of equity. He loved the book Snell’s Equity and once compared its content to that of the Bhagavad Gita. Incidentally, among written constitutions, it is only the Indian one that confers extraordinary powers on the Supreme Court, which it can exercise in the interests of equity. Clearly, barrister B.R. Ambedkar understood its importance.

The Karmic connection

At a time when it has become fashionable to mercilessly criticise the British Raj, it is worth revisiting matters and spending some time on thinking about its connection, including the fact that very soon after the conquest of Awadh by the British, a variety of mahants and swamis had taken their chances with the new British courts in trying to occupy and pray at the disputed site in Ayodhya. Clearly, they thought, or at least they hoped, that their plaints would be heard sympathetically by the judges of the Raj. And they might not have been wrong.

While Thomas Babington Macaulay was an insufferable prig, there were other British administrators in India, like Mountstuart Elphinstone in Bombay and Thomas Munro in Madras, who were wise pro-consuls in the best sense of the term. Munro certainly seems to have had a karmic connection with Rama, the deity. He reportedly had visions of the 17th-century Hindu seer, Raghavendra Swami, in the village of Mantralyam and the mysterious Hanuman’s arch at the village of Gandi in present-day Andhra Pradesh. This arch was/is visible only to those who have Rama’s favour and Raghavendra is one of Rama’s names. Even the most diehard Macaulay-haters will perhaps be willing to admit that Munro’s spirit may have been guiding India’s Supreme Court even as mere humans – the five judges – wrote a judgment that involved the juristic entity Rama.

The connection may have been karmic or otherwise. Clearly, there were many things about the British imperial engagement in India that have left bitter memories. But Common Law jurisprudence and an unpredictable, fearless judiciary with a penchant for classy English prose and quaint Latin expressions has to be among the better ones. It’s been 72 years now. Perhaps it’s time to take a deep breath and acknowledge this.

The author is an entrepreneur and writer. Views are personal.