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Ending an old dispute

Ending an old dispute

The Lucknow bench of the Allahabad high court has spoken and a solution to the dispute that nearly shook the foundations of Indian secularism is in sight. In reality, the road to that destination may still be long and arduous: An appeal to the apex court by one of the parties is in sight. That will mean prolonging the dispute, and the possibility of another verdict cannot be ruled out.

It is time to put an end to the litigation and join hands in formulating a creative solution.

Given the complexity and many-stranded nature of the litigation on the subject, which began way back in 1885, the judgement delivered on Thursday was bound to be equally complicated: Untangling a dispute that began sometime in mid-19th century, if not the 16th century, is a difficult task. In the end, the judges decided on a three-way partition of the disputed land, one part to the “Hindus" for a temple, one part to Muslims for a mosque and one-third to the Nirmohi Akhara, a religious sect that was also party to the litigation. The contours of the judgement are yet to be fully explored and this is an issue that will be debated in the days and months to come.

To begin with, there are reasons for worry as seen from what the judges have delivered. The three-way division is fraught both with the possibilities of a fair solution to both communities and the danger of triumphalism and a feeling of loss. The Muslim community will surely feel that it has lost because when seen in totality, two-thirds of the disputed land has gone to “Hindus". The Nirmohi Akhara was a separate claimant to the disputed land, but when seen in terms of its religious denomination, it is clear that it is a “Hindu" party. This will cause heartburn.

When seen from another angle, the judgement does not fully resolve the issue that fuelled Hindu revivalism: the presence of a temple and a mosque in the same place. This situation led to friction in Mathura and Varanasi, where places of worship belonging to the two communities existed side by side. The judges, in their idealism, good faith and best interests of the parties, have decided to promulgate a fair solution.

There is, however, a positive aspect to the situation. In the end any “final" solution, whether that of giving the land totally to Hindus or to Muslims would have further aggravated the problem. It would have led to the charge that a judicial solution to a religious problem was not possible. Even if the apex court were to deliver a final verdict one way or the other, it would have been merely accepted in the interest of following the law of the land. But the spirit of the law would have dimmed, for it would have continued to fuel bitterness in one party.

The message from the Lucknow court is clear: There is no escaping the fact that joint claims to the temple and the mosque, whether they be based on historical, emotional, religious or titling issues cannot be disentangled. It was unfair in the first place, as demanded in other original suits No. 4 (the case of the Sunni Central Board of Waqfs, Uttar Pradesh) and No. 5 (the case by Deoki Nandan Agarwala, a retired high court judge and Lord Ram as a juristic person) to declare the disputed land as a mosque or as a temple. But such is the nature of disputes in India that even courts, the most dispassionate of all legal forums, are expected to resolve obtuse, hardly justiciable, disputes. Courts can only pronounce on worldly matters and not religion. Yet that is what the court was finally asked to do. When seen from that perspective, the court has given a reasonable judgement.

While all parties are free to appeal to the Supreme Court, it would not be a good idea to do so. A better approach would be for all the parties concerned to sit across the table and start negotiating the extent of their claims. If the matter goes to the apex court, more time will be consumed and it may or may not lead to greater clarity on the subject. As argued above, a dispute that has been around for more than a century can hardly be resolved to everyone’s satisfaction in a judicial forum. Once the broad aspects of a solution are sketched, as the court has done on Thursday, the rest should be left to creative resolution.

It has been pointed out that India has moved on since 1992 when the mosque was demolished in tragic circumstances. Perhaps it has. Perhaps it has not. But what needs no emphasis is the fact that this vexed case needs closure. Unless this issue is resolved, as fully as possible by legal and political means, old fears, hatreds and heartburns will continue to keep India disengaged from more pressing problems.

Can courts resolve religious disputes and should they be asked to do so? Tell us at views@livemint.com

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