PROF. LAL MONTHLY „BUSINESS STANDARD“ COLUMN
Why Solomon would have been proud of the Supreme Courtjudgment in the Ayodhya land dispute case
The landmark verdict of the Supreme Court onthe disputed Babri Masjid gave its land to theidol of Ram, who was given a juristic personality.The Court further said a Ram temple, to be put ina trust, was to be built to replace the Babri Masjid.The desecration of the mosque by Hindus in 1949 byinsertion of an idol of Ram in the inner sanctum ofthe mosque, which was subsequently destroyed in1992 by the Ram Mandir movement,were criminal acts which deprivedMuslims of their place of prayer, whowere to be compensated by being givenland to build a mosque. The ongoingcriminal cases against thoseinvolved in destroying the mosquewere to be speedily completed.
This judgment has been questionedby Asaduddin Owaisi, chief ofthe All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM), who said: “Ifthe Babri Masjid was legal then whywas it (land) handed over to thosewho demolished it? If it was illegal, then why thecase is going on? Withdraw the case against Advani,and if it is legal then give it to us”.
To sort out these differences it is useful to see thedistinction between Hindu polytheism and Muslimmonotheism and how the British Raj impactedIndia’s traditional laws and effected its polytheism.
David Hume in his Dialogues and Natural Historyof Religion argued that, polytheism which is the originalreligion of mankind, “arose not from a contemplationof the works of nature, but from a concernwith regard to the events of life, and from the incessanthopes and fears that activate the human mind”(p.139). Monotheism by contrast believes in asupreme deity, the author of nature, the omnipotentcreator. Comparing the two — polytheism andmonotheism, Hume notes: “The greatest and mostobservable differences between a traditional, mythologicalreligion, and a systematical, scholastic oneare two: The former is often more reasonable, as consistingonly of a multitude of stories, which, howevergroundless, imply no expressabsurdity and demonstrative contradiction;and sits also so easy andlight on men’s minds, that, thoughit may be as universally received,it happily makes, no such deepimpression on the affections andunderstanding”. (p.176).
Discussing the relative meritsof polytheism and monotheism,Hume notes that polytheism’s“idolatory is attended with this evidentadvantage, that, by limitingthe powers and functions of itsdeities, it naturally admits the gods of other sectsand nations to a share of divinity, and renders all thevarious deities, as well as rites, ceremonies or traditions,compatible with each other.” (p.160). In contemporaryparlance it is secular. He concludes: “Theintolerance of almost all religions, which have maintainedthe unity of God, is as remarkable as the contraryprinciple of polytheists.”(p.162).
The British Raj in its pre-Mutiny reforming zealintroduced various legal innovations that overturnedtraditional Hindu law. The most important was theestablishment of the rule of law by Cornwallis separatingthe judicial and executive functions of government and making government-executive decisionscontestable in civil courts. But personal lawsrelating to the family, marriage, divorce, adoption,joint family guardianship, minority, legitimacy, inheritance,succession and religious endowments werelargely left untouched. It was only after independencethat legal reforms of personal and family law pickedup. Untouchability was outlawed, bigamy becamepunishable, divorce, inter-caste marriages and widowremarriage were permitted and daughters were givenshares in ancestral immovable property and theadministration of Hindu temples and monasterieswas radically altered.
The Ayodhya judgment draws on both the polytheismof Hinduism and the modern rule of law. Inits arguments (in Part J of its full judgment) foraccepting the juristic personality of the idol of Ramit (in J.2 para 109) cites polytheistic Roman law, saying“in conferring legal personality on the Hindu idol,courts drew inspiration from what they saw as factualparallels in Roman law.” But, they note (in para 194)that “there is a significant distinction between propertyvested in a foundation (as in Roman law) or adeity as a juristic person (as in Hindu law) and propertyper se being a juristic person. Where the propertyvests in a foundation constituted for a pious purpose,it retains the characteristics as immovable property.This remains true even in cases where the propertyvests in the deity in an ideal sense. The purpose ofconferring juristic personality is to ensure both acentre of legal relations as well as the protection ofthe beneficial interest of the devotees. It does not,however, alter the character of the property whichvests in the juristic person. It remains subject to theframework of the law that defines all relationshipsgoverning rights or interests claimed in respect ofproperty and the liabilities which attach to jural transactionsarising out of property”.
The court also rejected (in para 196) the contentionthat a mosque and its adjoining properties were ajuristic person (like a Hindu idol) citing a 1940 BritishPrivy Council judgment which stated “that thereshould be any supposed analogy between the positionin law of a building dedicated as a place of prayer forMuslims and the individual deities of the Hindu religionis a matter of some surprise to their Lordships…the procedure in India takes account necessarily ofthe polytheistic and other features of the Hindu religionand recognises certain doctrines of Hindu lawas essential thereto, eg. that an idol may be the ownerof property”. The Supreme Court explains this line ofreasoning as “that conferral of legal personality onimmovable property could lead to the property losingits character as immovable property. Immovable property,by its very nature, admits competing proprietaryclaims over it” (para 197).
Thus, the Supreme Court in its Ayodhya judgment,whilst reaffirming the polytheism of Hinduismby giving a juristic personality to the idol of Ram, towhom from the strength of Hindu belief and otherevidence it weighs, it gives the right to build a templegoverned by a trust on the site of the Babri masjid. Italso supports the modern rule of law, which doesnot allow private agents to unlawfully demolishimmovable property, and thence supports the prosecutionof the destroyers of the mosque, whilst alsocompensating the victims of its destruction. Solomonwould have been proud of this judgment.
Source: Business Standard