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Gyanvapi: Court should follow law not faith

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Can the wrongs of history be righted by exacting vengeance today? The raging controversy over the Gyanvapi Mosque stresses the indisputable urgency of answering this question.

Gyanvapi Mosque is undoubtedly a legacy of Mughal Emperor Aurangzeb (1618-1707). The destruction of Hindu temples by Aurangzeb is also beyond doubt. But Aurangzeb’s depredations were not limited to Hindus alone. He targeted Sikh gurus, destroyed mosques built by opponents, killed his own brother Dara Shikoh and imprisoned his father Shahjehan. Even Jawaharlal Nehru, normally accused of Muslim appeasement by Hindu nationalists, found it downright distasteful. Aurangzeb “turns back the clock”, writes Nehru in The Discovery of India, commenting on how a common Hindu-Muslim nationality had been under construction since the reign of Akbar (1556-1605), only to be violently interrupted by the abominations of ‘Aurangzeb. Aurangzeb is also a disturbing figure for Indian Muslims. After all, how many Muslim children are called Aurangzeb, as opposed to Akbar, Jehangir or Humayun? Growing up in UP, the historic heart of Mughal, I have met none, and only one since then.

Be that as it may, should we avenge the misdeeds of Aurangzeb in the seventeenth century by inflicting wrongs on the Muslims of present-day India, even if a significant part of public opinion has become markedly anti- Muslim? We cannot answer this question until we turn to the constitutive principles of modern democracy.

Two of the essential foundations of modern democracy are popular will and constitutional settlement. The attempt to recover the mosque for Hindu religious purposes belongs to the ancient kingdom. But the attempt to rehabilitate categorically contradicts the Constitution.

This duality also has notable institutional dimensions. In a democracy, the popular will is expressed through elections. And in the parliamentary system that India has adopted, the electoral verdict is then incorporated into the legislatures. Unlike presidential systems, where the popular will is reflected in two institutions at the political apex – the presidency and the legislature, both elected – legislatures become the sole carriers of the popular will in parliamentary systems. Moreover, in presidential systems, the two elected wings of government, the executive and the legislative, may belong to different parties, often generating contestation between the two, as is common in the United States. But in a parliamentary system, regular confrontation between the executive and the legislature is rare. The legislative majority produces the executive.

Is there then a check on the power of legislatures – and by extension on the popular will – in a parliamentary system? It is the Constitution that provides the underlying constraints. As the supreme law of the land, the Constitution provides the framework within which politics must operate, legislatures must enact laws, and executives must make decisions. Indeed, the Constitution spells out what politics cannot do, what laws legislatures cannot pass, and what decrees the executive cannot issue.

If the legislatures are the institutional embodiment of the popular will, the courts play the same role in safeguarding the Constitution. Parliaments do not protect the Constitution; the courts do. This is why judicial interpretation is of crucial importance. If judges increasingly begin to agree with the mood of the legislature, the executive, or the public, even when serious constitutional issues are at stake, the courts abandon their role as constitutional protectors.

The Constitution of India, the author of which was BR Ambedkar, firmly established the principle of religious equality. And he went further in protecting the rights of minorities. Since Jinnah’s assertion was that India’s Muslim minority would be unable to defend their interests in an independent Hindu-majority India, Ambedkar’s response was twofold. First, he said that the so-called Hindu majority only exists in theory; Hindus are internally divided by caste. Second, even though Hindus somehow overcame caste divisions and became united, elections by universal suffrage were not the only feature of democracy. Constitutions guide and constrain democratic governance. Therefore, he successfully argued that the religious, cultural and educational rights of minorities would be especially protected by the Constitution. In short, if elections, leaving room for majority passions, cannot protect minorities, the courts, in accordance with the Constitution, will.

Under Atal Bihari Vajpayee (1998-2004), Hindu nationalism proceeded constitutionally with caution. But lately he has blatantly violated Ambedkar (who incidentally was fiercely criticized by Hindu nationalists in the 1950s). Contrary to what was happening then, Indian elections are increasingly legitimizing Hindu nationalism. And driven by such electoral fervor, the Indian parliament enacted majority laws such as the repeal of Section 370 and the Citizenship Act (CAA); several laws and/or executive orders at the state level prohibit the consumption of beef and interfaith marriage, and change the historic Muslim names of towns and roads; BJP states bar Muslim girls from going to school if they wear a head covering, but not Sikh boys if they wear patkas, or Hindu boys if they wear a tilak; and BJP state governments, constitutionally responsible for law and order, look the other way when Hindu mobs attack minorities. Bulldozers were used to demolish ‘illegal’ Muslim homes and businesses, even though the illegal constructions are part of what Foucault might have called ‘popular illegality’, in which many citizens, not just Muslims, participated. . Nevertheless, governments have deemed the selective punitiveness of Muslims legitimate, which seems to be supported by a substantial part of the population. India is developing an alarming taste for a communally penal state.

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If it is serious about its role as protector of the Constitution, the judiciary should control the popular Hindu nationalist frenzy. But it doesn’t even provide for hearings on fundamental challenges to Hindu nationalist policies or legislation: for example, Section 370 and the CAA. He even approved the conversion of a disputed site in Ayodhya into a Hindu temple. He has now admitted petitions on the Gyanvapi Mosque, and it is unclear which direction he will go. The Places of Worship Act 1991, established in accordance with the Constitution, clearly states that the status of a place of worship cannot be changed beyond what it was at independence. Judicial interpretation must follow law, not faith. But the courts can always ingeniously construct arguments that show why the 1991 law was neither usable for Ayodhya, nor could it be applicable now.

If religious equality and the protection of minorities, two of the fundamental principles of the Indian Constitution, are made prisoners of electoral passions, India will not cease to exist, but its republic of 1950 will come to an end. Hindu nationalists will therefore continue to contest many other contested sites as long as they have electoral power. We can expect a relentlessly violent India, whose majority horrors are sure to be noted internationally.

The author is Sol Goldman Professor of International Studies and Social Sciences at Brown University