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April 2, 2002

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Arvind Lavakare

A question of 'squaring up'

Though Arun Shourie and a couple of others did make some noises of protest, the Vishwa Hindu Parishad brigade still seems shell-shocked by the Supreme Court's interim order last month refusing permission for shila daan puja anywhere on the 67.703 acres of land vested in the central government by the Acquisition of Certain Area at Ayodhya Act, 1993, and also refusing to accede to the brigade's demand that part of that acquired land be returned to it.

How, Shourie demanded rhetorically, does that interim order 'square up' with the majority view of the Supreme Court judgment of 1994 on that act? On the other hand, the BJP's allies in the NDA government and the entire Opposition hailed the big 'No' from the apex court as a 'triumph of secularism'. What is the truth?

To grasp the truth, one must assimilate the following facts:

  1. The Government of India's ordinance named 'Acquisition of Certain Area at Ayodhya Ordinance' was issued on January 7, 1993, for acquisition of 67.703 acres of land in the Ram Janambhoomi-Babri Masjid complex. It should be noted that unlike in an act of Parliament, it is not necessary for the government to expound the reason for issuing an ordinance; in other words, a statement of objects and reasons is not a mandatory part of an ordinance. It must also be noted that after the 44th Constitution amendment, 1978, an ordinance is non-justiciable. Rather than the courts, an ordinance is subject to the approval or disapproval of Parliament within six weeks of Parliament being convened, till which the ordinance has the same force as an act of Parliament.
  2. In exercise of the powers conferred on him by Article 143(1) of our Constitution, the President of India asked the Supreme Court to consider and give an opinion on 'whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the inner and outer courtyards of such structure) in the area on which the structure stood'. This presidential reference was made on the same day on which the above ordinance was issued and of which it made a mention two times in the preamble to the question it asked.
  3. Even as the reference remained unanswered with the Supreme Court, the Government of India enacted, on April 3, 1993, 'The Acquisition of Certain Area at Ayodhya Act, 1993 (#33 of 1993)', but deemed that it came into force from January 7, 1993 -- the day of the ordinance as well as of the reference. In other words, the non-justiciable circumstance of the above ordinance -- which the presidential reference had mentioned twice, remember -- had changed upon the ordinance becoming a law and, as such, subject to the court's scrutiny.
  4. The above act 33 of 1993 carried, as mandated, a statement of objects and reasons which, inter alia, said, 'As it is necessary to maintain communal harmony and the spirit of common brotherhood amongst the people of India, it was considered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a complex which could be developed in a planned manner wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities can be set up.' The purpose of acquisition couldn't have been more explicitly recorded than that.
  5. A five-judge bench of the Supreme Court pronounced its verdict on October 24, 1994 -- combining the ingredients of the act as well as the question asked by the presidential reference, and, what's more, interlinked the two issues at several places in arriving at a part of the verdict although, to repeat, the reference was made in the context of the non-justiciable ordinance and did not at all anticipate its conversion into a regular law of Parliament.
  6. The above verdict was split three against two on the view about the act. The majority held that only section 4(2) -- which had abated all pending legal suits relating to the entire bundle of property acquired -- was unconstitutional because it denied resort to judicial remedy under the rule of law envisaged in our Constitution; the minority judgment found the whole act constitutionally void on the ground that section 4 -- which denied Muslims their right to plead adverse possession of the disputed site from 1528 -- and section 8 -- which denied recourse to a civil court -- were arbitrary and unreasonable, while section 3 -- that acquired property over which Muslims could lay claim -- was non-secular.
  7. The majority as well as minority judgments respectfully declined to answer the presidential reference, but for different reasons. Having revived the pending suits by declaring section 4(2) unconstitutional, the majority found the reference 'superfluous and unnecessary;' the minority view believed that the reference (as well as the act) 'favour one religious community and disfavour the other; the purpose of the Reference is therefore opposed to secularism and is unconstitutional'.
The above background should enable an assessment of whether the Supreme Court's interim order of March 2002 'squared up' with the original majority verdict of 1994, and, in retrospect, whether the latter itself 'squared up' with the letter and spirit of the act on which the judgment was delivered.

The fundamental aim of the act was, as seen above, the maintenance of communal harmony amongst the people of India. Going by the severe communal riots resulting from the permitted kar seva leading to that event of December 6, 1992, the Supreme Court's interim order prohibiting shila daan puja was a sage decision. It was a triumph of sanity, not secularism, real or hypocritical. What the court did was pre-empt the possibility of history repeating itself when we don't learn from history. Its order, so to say, 'squared up' with history.

The apex court's refusal to let the central government return part of the acquired land to the original Hindu owners also 'squared up' with the law as laid down in section 6(1) of the acquisition act. Overriding what is stated in sections 3, 4, 5 and 7 of the act, section 6(1) makes it clear that if the central government so decides, the right, title or interest in a part or whole of the acquired 67.703 acres can be transferred to only such authority or body or trust as is not only willing to comply with certain terms and conditions but which, more importantly, is set up on or after the commencement of the act ie, January 7, 1993. That cut-off date meant that neither the original owners of the acquired land (including the Ram Janambhoomi Nyas) nor the VHP was, according to law, even entitled to ask for the return of acquired land to itself. QED.

However, Arun Shourie has, in The Indian Express, Mumbai, of March 18, 2002, quoted excerpts from the 1994 majority verdict to make the contrary viewpoints that:

  1. 'The duty of the Central Government as the statutory receiver is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed land has been acquired.'
  2. 'This [use of the words "so far as may be" in Section 6(3)] provides for the situation of transfer being made, if necessary, at any stage and of any part of the (undisputed) property since Section 7(2) is applicable only to the disputed area.'
  3. The presidential reference also makes it clear that 'the acquisition of the disputed area was... limited to holding it ...till the resolution of the dispute and then to transfer it.'
The billion-dollar question then is whether the acquisition act says what the 1994 Supreme Court verdict said it says.

Learning from Arundhati Roy's one-day stint at Tihar Jail and knowing that discretion is the better part of valour, it seems better to ask questions of the reader rather than to pen criticism of the apex court's view of 1994. So, here goes:

  • Since the acquisition act had, by section 4(2), abated all pending suits, how can any part of the rest of the act have even conceived of 'adjudication made in the suits...'? Further, since section 6(1) lays down that the vesting of rights of the central government is to be done to an authority formed only on or after January 7, 1993, how can either of the two parties contesting title to that site much before that cut-off date be given those rights? And since the 'objects and reasons' for the enactment of the acquisition act clearly state that the acquisition of the disputed site and adjacent area was necessary for 'setting up a complex wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable other facilities can be set up', how can it be said or construed that there was any other purpose for acquiring the disputed land and adjacent area? [vis--vis A above?]
  • Since section 8 of the acquisition act provides for compensation at market value to be paid to every owner of undisputed land acquired, would the act not have provided for return of the compensation amount if the law had intended that acquired land was to revert to its owners at some stage? And doesn't section 6(1) say that it overrides anything contained in sections 3, 4, 5 and 7? [vis--vis B above]
  • Isn't linking the ingredients of the act to the presidential reference (made in the context of the ordinance, without even anticipating the changed circumstance of the later act) akin to mixing oil with water? And doesn't the reference really talk of 'settling the dispute' in terms of the Supreme Court opinion rather than 'resolution' of the dispute? [vis--vis C above]
Finally, the mother of all questions: what happens if the special bench of the Allahabad high court -- currently 'expediting' the five pending suits pertaining to the title of the disputed site -- echoes the minority view of the Supreme Court on the presidential reference? What happens if it also says that its decision is bound to favour one religious community while disfavouring another and would thus be non-secular and, therefore, unconstitutional? What, therefore, if it refuses to give its decision?

Sense and sanity would therefore demand that the Vajpayee government either amend the present act 33 of 1993 or bring about a totally new legislation on the subject of the 67.703 acres acquired in Ayodhya.

Arvind Lavakare

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