There is a certain kind of confidence in the judiciary, which makes it capable of giving decisions on the big questions of life. There is no hesitation, no self-doubt, but the decisiveness of a person who has carefully read the petitions before him and has carefully considered the arguments. Then there is no scope for any dilemma or half-heartedness in his decisions. Take the Bhojshala case only. The question before the court was whether the Bhojshala complex – where the Kamal Maula Masjid was said to be located – had the original character of a Hindu temple? Should the arrangements for Namaz on Friday and Saraswati Puja on Tuesday and Basant Panchami continue there? The court deemed the complex a temple and allowed entry of Hindus. Muslims were allowed to apply for suitable land elsewhere for the construction of a mosque. But it was to prevent such determinations that the Places of Worship (Special Provisions) Act 1991 was enacted. This law fixed the religious character of every place of worship in India as it was on August 15, 1947. Only in view of the special nature of the Babri Masjid dispute, an exception was made. But now a weak link has been discovered. Indeed, the Act contained a limited exception for ancient and protected monuments. That is, in the case of such heritage monuments protected by the Archaeological Survey of India, the prohibition on considering the religious situation at the time of independence as stable and filing new cases will not apply. The logic behind this can also be understood, because it is possible that many more archaeological remains may be found in the future. But this was a limited exception, not an open invitation to circumvent the spirit of the law by digging up and inspecting every structure older than a hundred years. Now that the High Court has accepted that this exception is bigger than the rule, then in this situation, unless the Supreme Court itself expresses a different opinion in the appeal, the Places of Worship Act has become almost ineffective. Now every monument more than a hundred years old will await trial in court. And we know what we will find – beneath the mosques perhaps the remains of temples, beneath them perhaps Buddhist remains and perhaps even older remains further down. But the Places of Worship Act was not enacted because Parliament was not aware of this history. Rather, it was created because Parliament understood that the country would not progress by re-litigating every relic, re-opening every wound, taking every mosque and temple to court. In another case, five Muslims were arrested for throwing non-vegetarian food into the Ganga. Rejecting the arguments against bail, the judge said that the accused have expressed remorse and they do not have any criminal record, so there is no justification in keeping them in jail. Despite this, he also commented that throwing non-vegetarian food into the Ganga by people of the Muslim community can be said to hurt the religious sentiments of Hindus. The court could also have said that throwing any kind of leftover food into the river is wrong. It is difficult to believe that Hindus would have an objection to throwing meat in the Ganga, but not to the issue of plastic, industrial waste and waste. But when courts delve into questions of faith, they often take a politically dominant stance. This only increases the disputes. The Places of Worship Act was not made because the Parliament of the country did not know our history. Rather, it was created because the Parliament understood that the country would not progress by reopening every wound. (These are the author’s own views)
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Arghya Sengupta’s column: The job of the courts is to resolve disputes, not to escalate them.
