The ‘Deal Breaker’
The recent judgment of the Allahabad High Court in the long running dispute over the Babri Masjid-Ram Janmabhoomi land has been hailed by many as a ‘compromise’ verdict which may work. However if media reports are to be believed, the Muslim community perceives the verdict with a deep disappointment which certainly does not reflect the spirit of a just compromise. So lets not kid ourselves, this is no compromise decree and the only reason the Muslim community is not out protesting on the streets is because of their hope that the Supreme Court will reverse the judgment of the Allahabad High Court.
The focus of this post however is on what I would like to characterize as the ‘Original Deal’. The ‘two-nation’ theory espoused by Jinnah, to support his claim for an independent Pakistan, was based on the threat perception of Hindus ruling over Muslims through majoritarian rule thereby eroding the Muslim identity on a gradual basis. At that time the Indian National Congress led by Gandhi and Nehru sought to placate the Muslim fears assuring them that the yet to be drafted Constitution would ensure that, new Indian state would not only be secular but also that Muslims in matters of faith and personal laws could still be ruled by the Muslim law. The Congress’s suggestion was nothing radical, they were merely proposing the extension of the status quo which had existed under British. In regards criminal and contract law Muslims would continue to be governed by secular laws. This in my opinion was the ‘Original Deal’ and the basis of the ‘social contract’ between the Muslim community and the Indian state. When the new Indian Constitution was passed by the Constituent Assembly on the 26th of November, 1949, the INC stuck to its promise of a secular document.
While Parliament got down to the task of reforming Hindu personal law in the 50s against strong opposition from sections of the Hindu community, Muslim personal law was left untouched. Even in the 80s when the Supreme Court sought to intervene and protect the rights of Shah Bano, a Muslim divorcee under the secular Code of Criminal Procedure, the Congress party under Rajiv Gandhi reversed the verdict through a Parliamentary legislation. The ‘Original Deal’ was thus maintained as the status quo by the Indian Parliament. The recent judgment of the Allahabad High Court is however, what I would like to term, as the ‘deal breaker’. The dangerously simplistic reasoning that I would use to support this argument is the fact that the Allahabad High Court in effect decided, what it has termed as, a ‘title suit’ on the basis of Hindu law. The very concept that a deity can be a juristic person or the place of worship or birth of a deity can be viewed as a juristic person is a well recognized concept under Hindu law not secular law. The judgment of Justice Agarwal cites several cases where Indian courts have recognized the concept of the deity being a juristic person but failed to point out that almost all these suits were disputes either between the State and a Hindu institution or between a religious follower and the Hindu institution itself. None of these cases were a dispute between two parties of different religions. The role of personal law in disputes between parties of different religious denominations is quite clear from the following paragraph in Justice Agarwals’s judgment where he explains the concept as it existed during the times of the British: Para 1767: For example where both the parties are Hindu, by the principles of Hindu Law and where both the parties are Muslim according to the principles of Muslim Law. No clear cut or uniform law was existing in a matter where both the parties belong to different religions and there the matter was left to be decided according to equity and good conscience by the concerned Courts. To the extent the matter was governed by statutory laws there was no problem as the same was followed over and above the personal laws.
Since a title suit between two parties of different religions can be governed by the Transfer of Property Act it is not entirely clear as to why the Allahabad High Court chose Hindu law as the governing law for the dispute. In any case it is amply clear from the judgment of the Allahabad High Court that the ‘original deal’ now stands under a cloud of doubt and the social contract between the Muslim community and the Indian state stand precariously poised until the Supreme Court decides the appeal. It is upto the Supreme Court to now sort out the contradictions of this Country’s existence for the last 60 years and if possible to restore the ‘Original Deal’.