Chandrachud and Bhagwat Are on the Same Page
Savera
FORMER Chief Justice of India DY Chandrachud’s recent interview with online portal Newslaundry turned out to contain some sensational and ominous revelations of his views. These have, naturally, created a stir seldom witnessed after former justices’ post-retirement thoughts. This is so because his statements not only reveal his real thinking but also add to a public discourse steadily being built up in recent times on one of the most incendiary and divisive issues that haunts India – religious conflict and its history, especially with regard to places of worship. That is why it is necessary to unpack what Chandrachud said.
According to clips of the interview, Newslaundry’s Srinivasan Jain asked Chandrachud to comment on the perception that the Ayodhya judgement of 2019 seemed to favour the Hindu side just because they had created a fuss and indulged in desecration by illegally placing the idol of Ram Lalla in the inner courtyard back in 1949 while the Muslim side had not protested about the outer courtyard being occupied by Hindus. To this Chandrachud, rather passionately, said, "When you said that it was the Hindus who were desecrating the inner courtyard, what about the fundamental act of desecration - the very erection of the Mosque. You forget all that happened? We forget what happened in history?"
To put it in plain language, the former Chief Justice is saying that the very act of building a mosque (reportedly in 1528-29, nearly five centuries ago) was an act of desecration. Why is it desecration? Because, he is implying, it was built at the very place where Hindus believed Lord Ram was born, and where a temple once stood.
The Supreme Court in its 2019 judgement had noted that while Archeological Survey of India (ASI) investigations had revealed that underneath the mosque there were remains of what appeared to be a Hindu religious place of worship, the ASI had established the remains to be dating back to the 12th century. The Court said that there was no explanation for the 400 years that passed between the temple’s existence and the mosque’s construction. More pertinently, it was not established that the mosque was built after destroying the temple. This is the relevant excerpt from the Supreme Court’s 1045-page long judgement:
“II The conclusion in the ASI report about the remains of an underlying structure of a Hindu religious origin symbolic of temple architecture of the twelfth century A.D. must however be read contextually with the following caveats:
- While the ASI report has found the existence of ruins of a preexisting structure, the report does not provide: (a) The reason for the destruction of the pre-existing structure; and (b) Whether the earlier structure was demolished for the purpose of the construction of the mosque.
- Since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries;
- The ASI report does not conclude that the remnants of the pre- existing structure were used for the purpose of constructing the mosque (apart, that is, from the construction of the mosque on the foundation of the erstwhile structure); and
- The pillars that were used in the construction of the mosque were black Kasauti stone pillars. ASI has found no evidence to show that these Kasauti pillars are relatable to the underlying pillar bases found during the course of excavation in the structure below the mosque.
III A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI. Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries. No evidence has been placed on the record in relation to the course of human history between the twelfth and sixteen centuries. No evidence is available in a case of this antiquity on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-existing structure was demolished for the construction of the mosque. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial.
[Excerpt from Ayodhya Final Judgement; Chapter P – Analysis on Title; Para 788; pp. 906-907]
CJI Chandrachud was one of the five Supreme Court justices who co-authored the judgement. So, he is not only aware of the above conclusion, but he is party to it. Yet he now asserts that the construction of Babri Masjid itself was the ‘fundamental’ act of desecration.
Not only that, he goes on to castigate people who do not look at complete history but select portions or episodes to suit their convenience.
"Now, once you accept that that happened in history, and we had evidence in the form of archaeological evidence, how can you shut your eyes? So, what is really being done by many of these commentators, that you referred to, is that you have a selective view of history, ignore evidence of what happened beyond a certain period in history and start looking at evidence which is of a more comparative," he said in the interview.
History According to ex-CJI Chandarchud
Thus, the ex-CJI, known to be a scholarly and learned judge, is advocating that history should be dug up as far back as possible to establish what was right and what was wrong. The rule of law, including laws relating to title possession, adverse possession, ownership, etc. may be used to determine particular issues but – Chandrachud argues – the larger picture should be kept in mind.
One effect of keeping this larger picture in mind may have been the fact that the Supreme Court ultimately gave the title of the disputed land to the Hindu side, based on the fact that they had been in possession of substantial parts of the disputed area, and they had consistently protested against the incursion of Muslims. This is despite the judgement repeatedly observing that the Muslim side was dealt an unfair hand by denying them their place of worship in the past, and that the wanton destruction of the Babri Masjid on December 6, 1992, was illegal. Here are some of their observations excerpted from the judgement:
“The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law;” (p.913)
“The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law;” (p.914)
“The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship. After the proceedings under Section 145 of CrPC 1898 were initiated and a receiver was appointed following the attachment of the inner courtyard, worship of the Hindu idols was permitted. During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.” (p.921)
This puzzling paradox of calling the actions of the Hindu side egregious violations of law and yet awarding them the ownership of the land based on their continued occupation (even if illegal) marked the judgement. Perhaps the larger picture that Chandrachud talks about contributed to this strange justice. The Court awarded 5 acres of land at a different location to the Muslim side as compensation for this injustice of the past, saying that “Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.” (p.922-23)
Now, Mathura and Kashi?
A few weeks ago, RSS supremo Mohan Bhagwat announced at a meeting in Delhi that the Gyanvapi Mosque adjacent to the Kashi Vishwanath temple in Varanasi/Kashi and the Shahi Idgah Mosque complex adjoining the Krishna Janmbhoomi temple in Mathura were issues that were still pending. He said that the RSS as an organization would not be involved in any agitation for establishing them as purely Hindu religious places but RSS members were free to get involved. RSS members lead several organisations including the BJP, the Vishwa Hindu Parishad, and many others. So, the green light has been given for these divisive agitations. Chandrachud’s statement about historical “fundamental desecration” will surely come in handy for the RSS cadres in this.
It would appear that such moves should be declared illegal because of the Places of Worship (Special Provisions) Act (PWA), 1991, lays down a freeze on the status quo as it obtained at the time of Independence. But here too Chandrachud has been helpful in opening the door to fresh claims. During his tenure as CJI, he had allowed a survey of the Gyanvapi Mosque in 2023 to determine whether the mosque was built on a destroyed Hindu temple, as averred by the Hindu petitioners. Earlier, in 2022, Chandrachud had orally observed while hearing the Gyanvapi dispute that ascertaining the religious character of a place of worship was not barred under the PWA. In the survey of Gyanvapi Mosque, the ASI claimed that it had found remains of a Hindu temple below the mosque. This order has cascaded into pleas for surveys in so called disputed sites in at least 17 different places, like Mathura, Sambhal, Ajmer, Bhojshala, etc., with violence erupting in some places.
Asked about this in the Newslaundry interview, Chandrachud said that the PWA provision on status quo had two exceptions: one, the Ayodhya dispute (which had been ongoing from much earlier) and two, cases where it was to be determined whether a site is of archaeological importance or not. In the latter case, courts were within their rights to look into the matter. Thus he has introduced a thin end of a wedge in the PWA itself: a court can order a survey, and then history and faith, and the whole ‘larger picture’ will flood in.
The convergence of various demands for righting of alleged historical wrongs in the past few years after the Ayodhya and Gyanvapi judgements, the green signal by the RSS, and now the scholarly justification by Chandrachud all combine to create a potent brew that hints at a troubling future. Coming at a time when the Modi government’s helplessness in tackling severe economic crises like unemployment, stagnant manufacturing growth, price rise, and dwindling State government resources is reaching a breaking point, these divisive demands will perhaps serve to divert people’s attention and energy away.
