Saturday, September 25, 2010

Ethics in Tangents: Part 3 - Ayodhya Dispute and Claims from Faith

In this post I very briefly discuss the Ayodhya dispute, and using points of departure from it, try to point out the inferences that could be drawn. These inferences fall largely in the domain of ethics. Note here that I am not saying I am drawing these inferences, but that they could be drawn, and will rather try to show that the way ethics in our World are perceived and had perhaps traditionally been practiced in the past, there are many inconsistencies in their application. Readers are obviously encouraged to give their feedback, for I lay no claim to perfection in the logic I use (especially so in this blog post) as I deal with something so contentious that the Indian Judiciary has not been able to come up with a verdict on the 'ownership' of the land despite little paucity of, or for that matter, even need for evidence. In the process, I rely upon two major assumptions (kindly note the emphasis). The first one being that a temple devoted to Ram had actually existed in Ayodhya at the disputed site, and second, that journalist-writer, Dilip D'Souza (click) has paraphrased quite faithfully L. K. Advani's (and the BJP's) stance when he states the following in his article - Memories of resolution and resolve (click):

1. "...how could the courts rule on this matter of faith, they (BJP) asked righteously"
2. "For a man (Atal Behari Vajpayee) who resolved with his party -- then not in office, OK -- that the dispute could not be resolved in the courts, this is a complete and abject turnabout."
3. "Seeing hope now in the courts is as frankly silly as when Advani shouted hoarsely from his Toyota that no court on earth could decide this matter of faith"

So, from above three sentences used by Dilip, one could conclude that the BJP and especially so, Advani had asserted that: matters of faith cannot be decided by courts of law. Elsewhere in the same article, he is quoted to have provided both legislation or out-of-court settlement between the two religious communities as viable alternatives to break through the impasse.

The reasons I make the above assumptions are because they seem reasonable ones to make, and that there is little reason to be skeptical about them. Though I must point out that the first assumption has been contested. This contention, and the sequence of important events and their historical background could be found in two Wikipedia articles - Babri Mosque (click) and Ayodhya Debate (click), which I have incidentally used as my primary sources of information. This dispute is sourced in the 16th century, much, much before I was born. As is usually the case, history is rarely chronicled reliably, which is of special significance in the given issue. Moreover, I am not a professional historian, nor a journalist to have kept tabs on all the major events. Lastly, I was quite young when the Babri Mosque was demolished in 1992, of which I remember little. So obviously, my knowledge and understanding of the issue cannot be taken as an authoritative one, still I have formed opinions on it, which are in flux, and yet I venture out to publicize them for two reasons. One, there is hardly any subject on which the 'final word' is ever spoken. Meaning, we always come across new pieces of information that alter our opinions, or new arguments to shift our positions. So in most areas of life, we form opinions or reach decisions despite possessing knowledge and understanding that could be assessed as only far from complete, so why not on this one? Two, as I am not a stakeholder of the disputed site, nor an influential person insofar as my opinion can have a bearing on the final outcome of verdict to be announced on the 28th of this month, I believe, there is no harm in coming out with it (my take).

In very brief, I discuss the timeline of Ayodhya dispute, as I understand it:

1. 1558: 'Mir Banki' - a General of Babar, the Mughal ruler, destroys the Ram Temple.
2. 1850s: In the interim, both Hindus and Muslims used to worship at the site. However, there were clashes between the two communities in 1850s, and the British had built a fence around the main structure. Hindus were not allowed entrance, and they used to offer prayers on a raised platform. The festival of Ram Navmi (which marks the birth of Ram) was also celebrated by the Hindus at the site for at least since over a century.
3. 1883-86: Few representations were made by Hindus seeking permission to build a Temple on the raised platform, which were rejected by the British Judges.
4. 1934: There were some religious clashes between Hindus and Muslims, the Mosque was damaged, which was made good by the British.
5. 1936: Within the provisions of an act passed in 1936, the Mosque and the surrounding area were recognized to be owned by the 'UP Waqf Board'
6. 1949: Gradually, as claimed by Hindus, Muslim interest in the site had waned and by 1947, they had stopped offering Namaaz there. Moreover, the government had disallowed Muslims to enter within 200 m of the site. Only Hindus were allowed to enter, but that too through a side-door. [Here though, I must point out that if Muslims were anyway not offering prayers there, why would there be a need to make the site out-of-bounds for them? So, something is not making definite sense to me, but as I mentioned above, some of the details of events and reasons behind them remain unclear.]
7. 1949: Idols of Ram and Sita were sneaked into the Mosque at night. This was reported by the police, when discovered. The following morning a large mob of Ram devotees had tried to enter the Mosque, but which was prevented from doing so. At this point, the then Prime Minister, Jawaharlal Nehru on learning of the incident had ordered removal of the two idols from the temple. Significantly, a Waqf Inspector at around that time had complained that Hindus would jeer at Muslims entering and exiting the Mosque for offering Namaaz (something that contradicts the claim that Muslims were not using the Mosque).
8. 1984: Though Hindus had since long been interested in the reclamation of the site and restoration of the Temple, the Vishwa Hindu Parishad revived this demand more vocally and had resolved to build a Temple devoted to the infant Ram at the site.
9. 1985: Rajiv Gandhi government had passed a resolution to have the main locks of the Mosque opened for Hindus, the Allahabad High Court also ordered the same in 1989.
10. 1989: In November (prior to General Election), the VHP had obtained permission (from whom? - that is unclear) to perform Shilanyas ("stone laying ceremony") at the site. This had sparked Muslim unease and protests.
11. 1992: December 6 - the Babri Mosque was demolished, in which prominent leaders of the BJP, like L. K. Advani have been implicated to have played a provocative role by the Liberhan Commission instituted by the then Congress government.
12. There are claims that during excavation remnants suggesting existence of Jain or Buddhist architecture were also found. However, I do not know if these claims are verified, and that in which stratum of the soil were these remains found - that is what would eventually determine what was the first place of worship built at the disputed site.

As is the case with complicated problems, let me try to bring in an analogy, which I hope would simplify the considerations involved.

There are two neighbors - 'A' and 'B'. 'A' owns a board game, which is his major source of entertainment. 'B' is a much more powerful person, and for some reasons, snatches away the game kit from 'A'. Moreover, 'B' does not have much use for the game kit as he does not enjoy board games much. Whether 'A' had protested or not is not clearly known, though he would have, as can be thought of as natural with any kind of extortion. At the same time, the B-family erases the preexisting design on the board, and replaces it with one that would make it conducive to a set of rules different from the one by which the A-family plays. Significantly, they also remove a few squares from the board that are most vital to the A-family's set of rules of game-play. Now, 'B' 'bequeaths' the game kit to his son, who in turn bequeaths it to his son, and henceforth. Now, the game kit ends up with one of the descendants of 'B'. Just like 'B', 'b' also does not find that particular board game too interesting. Correspondingly, the contemporary of 'b' is 'a', who is a descendant of 'A'. All through the course of time, certain indeterminate (but perhaps, large) fraction of the descendants of 'A' very much want the game kit to be theirs, and are opposed to its possession by the B-family, which the A-family members feel is illegal. The reason protesting A-members cannot seek legal redress is because the B-family also happens to be the village head, who sits in judgment of all such disputes! Then, the village head changes. This time it is 'J'. Again, members of the A-family demand that the game kit be returned to them, but the new village head tells them that "as the incident of snatching away the game kit was too old, nothing could be done about it". Now, the new village head recognizes the A-family's need for entertainment and thus takes a view more sympathetic than had been taken by the B-family, and asks that the A-family be allowed to use certain section of the board, but still leaves its possession with the B-family, and in fact legitimatizes such possession of the board by B-family using a new provision of law. Moreover, the new judge does not allow restoration of board's original structure as otherwise the game kit would be rendered useless for the B-family, which would amount to injustice, because the new Judge deems the B-family to be the rightful owner. Then, again the judge changes to 'j' [please note here that 'j' follows most of the laws 'J' had defined and also does not recognize himself as truly distinct from 'J' by way of honoring the precedents set by 'J' and also by recognizing the records of ownership maintained by 'J'] . By now, the A-family becomes much more powerful than the B-family. Some of the A-family members forcibly insert the missing squares so that the board would become fully functional for the manner in which they want to play their game. However, 'j' intervenes, and has those squares removed. But 'j' also disallows the B-family from using the board, though its 'possession' remains with the B-family itself. Ultimately, 'j' allows A-family to use the entire board, but without allowing re-insertion of the squares nor allowing any kind of redrawing. Also, some of the A-family descendants want to make the board look more beautiful, of course which is denied by 'j'. Concurrently, the B-family was offered another board to design its game on, which was rejected by those members of the B-family that were deemed as the both the representatives of the B-family and also as 'owners' of the original board by both 'J' and 'j'. So one of these days, few of the A-family members completely erase the designs drawn by the B-family. The B-family vehemently protests this. This act by the A-family is seen widely as illegal, because the erasure of the design did not have the sanction of 'j'. Another reason it is critiqued is is because the B-family protests the act and sees it as bullying. Later, some sketchy evidence emerges that even before the board was owned by A-family, it was owned by the 'C'-family!

Well, I have laid the analogy above. Obviously, being an analogy, there are bound to be significant incongruities between it and the 'real' situation. Significant among them being:
1. In the analogy, the warring parties are well-recognized individuals with unambiguous property rights to begin with as far as the ownership of the game kit are concerned. Whereas, this is not the case with the disputed land. Though, it seems in 1936, the British 'invented' the ownership of the site by awarding it to the 'Waqf' board or in other words, awarding it to the Muslim community, thus granting a status of a syndicate
2. The emotional attachment aspect of both the communities towards their respective structures (whatever be its degree or justifiability) has been overlooked. But this because, I believe, justice should not be based on emotional attachment.
3. The motives of the A- and the B-families in wanting to hold on to the board have again not been figured. This is similar to the second point above, meaning, what one plans to do with what one possesses is not an index to whether that person is the 'rightful' owner or not.

I again encourage the reader to point out other significant departures in the analogy from the real thing.

Now, let us analyze the entire dispute over the game kit more closely. At the heart of the entire issue is one of 'ownership' - the idea that a board can be owned by a person or group of persons, who reserve the right of what could be done to that board, what could be done with that board, and most important, who else to allow or to disallow from using it, and what kind of uses to allow/disallow.

Let me start with a 'sub-analogy' (that is, an analogy within an analogy): Suppose, 1 steals a watch from 0, and then gives it to 2. Can we now consider 2 to be the rightful owner of the watch? Would we consider 0's demand legitimate that the watch be returned back to him?

I am guessing, most would answer that in 'no' and 'yes' respectively. The reason behind our answer would be that:

"To have the legitimate right to transfer the ownership of something one must own it in manner that is considered legitimate in the first place."
... [a.1]

But let us slightly complicate the sub-analogy above: what if 2, instead of keeping the watch for himself, transfers it to 3, who transfers it to 4, and who to 5. Would 0 still have the right to claim the watch as his own? Would 5 be considered the rightful owner of the watch?

I guess, many would still respond that the watch be rightly restored to 0, and that 5 cannot claim any ownership of the watch, because just like how transfer of watch from 1 to 2 would be not recognized as legitimate, that of 2 to 3, 3 to 4 and 4 to 5 would also not be recognized as legitimate. This leads us to yet another assertion:

"The illegitimacy of transfer of ownership is independent of the number of hands the property passes from 'under'. In other words, a series of transfers of ownership does not make legitimate the final transfer, if the first transfer of ownership was illegitimate (stealing, for instance)."
... [a.2]

So, using the above two points and applying them to the original analogy of game board, one would assume that 'b' never really was in its possession, as the first acquisition of the board itself was by an illegitimate method (extortion). This, because A had never willingly handed over the game board to B. So can we say that 'A' was the rightful owner of the game board, and by extension, so is 'a'? And as corollary, 'b' is not the rightful owner of the board?

It might be tempting to answer the above as 'yes' and 'yes', but let me try to explain the complications involved.

The answer in affirmative would depend on our assuming that the forceful acquisition of the board was illegitimate. The reason I say this amounts to an assumption and not some kind of verifiable, absolute truth is because, the said extortion seems illegitimate from the perspective of current code of ethics and the penal law we follow! And we cannot use the legal system of our times to impose the conclusions that follow on an entirely different system of justice (that must have existed when 'B' took away the board from 'A'). And it can also be safely assumed that the system of justice that prevailed when 'B' took away the board from 'A' did not find the act illegitimate, otherwise the ownership of the game board would have been restored to the original owner 'A'. Some might point out that the justice system back then must have not existed, or that it was undemocratic, barbaric, etc. But while trying to assess whether the transfer of ownership by 'B' to his son 'b' was illegitimate or not, we need to prove that the method by which 'B' had acquired it from 'A' was illegitimate exactly at the time when it was being acquired! Let me veer off into another small example. Let us assume there was a time when spitting on the roads was not illegal, and then a few years later when spitting was made punishable someone brings to a court's notice a video clip of a person spitting on road. Would we then apply the current set of rule to an act (and punish the spitting person) when different set of rules had existed, and under which spitting was not illegal? I guess, most would say that the spitting person cannot be punished. So, applying similar logic, if the system that existed during the extortion of game board did not find such acquisition illegal, then all the subsequent transfers that led 'b' to ultimately come in possession of the game board would also be legal. So, I submit that:

"The legitimacy or illegitimacy of an act are determined by the code of ethics and law that had prevailed and to which the concerned parties ('aggressor' and 'victim') were subjected. And the said legitimacy versus illegitimacy cannot be determined retrospectively using the current system of law and ethics."
... [b.1]

Now let me bring in another complicating factor. If someday using points a.1 and a.2, Red Indians in the USA appeal to the people of other ethnicities to leave their continents as they were the rightful owner of everything that existed in there and that each and every instance of acquisition of any kind of property was forceful and thus illegitimate, and so were the subsequent transfers, what would our response be? Would we be able to 'do justice' to their demand? I guess, most would be in an ethical dilemma at this question. What would justify the retention of status quo, that is, keeping the property with current owners and thus rejecting the claim of the Red Indians? [Here, I am not getting into distracting details like whether 'pure breed' Red Indians still exist or not; the question is purely hypothetical]. What would again prevent us from transferring back all the property rights to the Red Indians would partly be the reason b.1, but apart from that the fact that on analysis of many such historical cases of acquisition, it seems that the aggressor becomes the rightful owner of something if the original owner stops complaining or is put in such position by the aggressor that the victim cannot complain (say, by actually killing or threatening to harm). From citing of these instances, one could conclude that:

"If acquisition of a property is forceful, and if the new ownership is maintained for long enough so that the original owner is in no position to complain/protest or stops complaining/protesting, then even most current systems of law and ethics recognize the aggressor as the rightful owner and the original owner is thought to have been validly dispossessed of his property."
... [b.2]

Though, b.2 seems barbaric and quite at odds with our current world view, the fact is, for practical concerns, we are forced to take that position. And no, I won't even go into the perhaps-by-now-debunked 'Aryan invasion theory' and how all the 'Aryans' - whoever they may be - and the exhortation that they leave the Indian subcontinent to the native people - whoever they may be! ;) So, from the above two arguments (b.1 and b.2) it seems that the game board could be entirely turned over to the B-family. Please note that though there are exactly two reasons each to restore the board to A-family or alternatively, to maintain the status quo by entirely transferring the ownership to B-family, the b-points (that is, those that support B-family's ownership) supersede the a-points in their applicability. So, we can conclude here that B-family should be the rightful owner of the game board, provided it could be proved that B-family had completely decimated the A-family or had threatened the A-family sufficiently into conceding its ownership. But that is something that as of now remains indeterminate and the decision in that regard would depend on the evidence of such complaints/protests provided by the A-family.

But, but, but... every time the system of ethics and justice changes (which would usually happen with the change in the ruler), it automatically takes it upon itself to make null and void all the previously established norms of ownership and its transfer. This also enables the new regime to set new norms of ownership and also allows it to nullify the existing ownerships. It is precisely this mechanism that had allowed the justice system that had existed at the time when 'B' had forcefully acquired the game board from 'A' to do so. In simple words, the moment 'B'-family started applying its justice system (by virtue of being the village head). It had assumed the power to dissolve the previous norms of ownership and also the specific instances of ownership (e.g., the A-family's ownership of the board). Because had it not nullified the preexisting norm as well as the status of ownership, it would have never allowed 'B' to take ownership of the board. It is not difficult to see that the guiding philosophy of that justice system was sadism - of gaining pleasure through troubling the A-family and asserting B-family's supremacy over the A-family. Whether this goal was noble or ignoble or moral or otherwise is not the concern. But that the new justice system started reevaluating the individual instances of ownership based on its own goals and the ideals it envisaged.

"Each time a new system of justice and ethics takes over, going by the historical precedents, it has the right to consider null and void all existing claims of ownership. Moreover, the new system will try to take decisions based on its fundamental philosophy and the goals the regime it serves seeks to achieve."
... [c.1]

Above point c.1 sounds contradictory to b.2, but there is a subtle difference. b.2 says that we cannot call some act illegitimate using current standards if at the time of commission of that act it was not recognized as illegitimate. Whereas, c.1 legitimatizes the rights of a new justice system to consider null and void all instances of preexisting ownership, irrespective of whether those instances of ownership were considered legitimate or not. In fact, it is the same logic that had also allowed 'J' to further legitimatize B-family's ownership of the board in face of continual protests by the A-family and its attempts to take back the possession of the board.

"Same considerations would apply to the struggle of ownership between the C-family and the A-family. Original and rightful owner of the board could be considered to be the C-family (instead of the A- or the B-family) if it could be proved that they had also continuously protested the forceful taking over of the board by A-family just like A-family (seemingly) had protested such taking over by the B-family."
... [C.2]

Here, one more thing that needs to be considered is that by virtue of the fact that 'j' is a descendant of 'J', and in fact considers his own justice system and that of 'J' to be one continuum, it also gives 'j' the power to review and overturn the decisions taken by 'J'.

A small note: I had done all the above analysis, and drafted most of it independently using my understanding of ethics, law, concepts of ownership, human behavior and history. However a few days earlier, I had come across the concept of 'adverse possession' (click). Its concept is very similar to the point b.2 above. Wikipedia defines the concept as:

"Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property (land and the fixed structures built upon it). By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period."

The same Wikipedia article further gives the minimum criteria that must be fulfilled for the disseisor (the aggressor who seeks to supplant the original claim to ownership) to become the new rightful owner:

  1. Actual possession of the property - The disseisor must 'use' the new property.
  2. Open and notorious use of the property - Use of the property must not be covert, and the original owner must be aware of such use by the disseisor.
  3. Exclusive use of the property - The disseisor must exclude others (including the original owner) from using the property. This would be seen as the disseisor claiming ownership of the property.
  4. Hostile or adverse use of the property - The disseisor has to occupy and use the property in a manner that is protested or disapproved of by the original owner.
  5. Continuous use of the property - The disseisor must use the property continuously from the time of taking over its possession to the point in time when the matter is brought under consideration.

Though, the Wikipedia does not mention it in the list of minimum criteria, it talks of two similar premises, on which the concept of adverse possession is based - the doctrine of laches (that the original owner, if not making claim to his adversely possessed property in timely manner is seen to have lost the claim) and statute of limitations (the time within which a crime has to be reported, otherwise the court would not take it up for hearing).

I have no idea of the sections of property acts in India that deal with adverse possession, and it also needs to be pointed out that the Wikipedia article is largely based on the US justice system, and the provisions there could be somewhat different. Moreover, I read that this provision that is seen to be sympathetic towards a hostile trespassers and unjust to the original owners is falling out of favor. The only reason I had brought up this concept was because it adds another angle to the legal aspects of the problem.

So, now applying all the above conclusions that were drawn from above premises, analogies and examples to the situation at hand, i.e., the Ayodhya dispute, we can conclude that what needs to be done would be largely based on the discretion of the present Indian Judiciary, because based on precedents set, it has the right to consider null and void all the titles of ownership that had existed before its establishment. Moreover, it is also within its power to review the decision by the British government of recognizing the ownership of the 'UP Waqf Board', more specifically whether such recognition falls in line with the founding principles of the Indian Constitution. Also inadvertently, the Indian Judiciary would be passing a judgment on what it thinks of the acts of Babar's general - Mir Banki - that is, whether it approves of the manner of acquisition of property by way of not reversing such possession despite having the right to do so. Please note that in the conclusions that I have derived, [a] series stands for arguments that support restoration of the disputed site to the (representatives of) Hindus, [b] series stands for complete restoration of the disputed site to the (representatives of) Muslims, and [c] series stands for arguments that lead to outcomes based largely on discretion.

I also need to point out here that, irrespective of whether the Court hands over the title deed of the disputed land to (representatives of) 'Hindus' or not, the act of Babri Mosque demolition would be deemed a crime as at the time of demolition, no one was authorized to demolish it.

Also, as I mentioned further what further complicates the matters is, though the majority of Indians view the Babri issue as a struggle between the Hindu and the Muslim communities, the fact is that the courts do not recognize an owner-entity called 'Hindu community' or 'Muslim community'.

Now, returning to Mr. Advani's assertion that matters of faith cannot be decided by courts of law, I would just like to ask, then what is all that precedes? Of course, I am no expert in law, nor of philosophy/ethics. But despite my limited knowledge and understanding, I have tried to resolve the larger issue into its individual attendant smaller issues. The claim from faith is one of the most horrible one. It seeks to spit in the face of one ability that separates humans from other animals - that of observing, questioning, thinking and answering. This intelligence is what separates humans from other species. An out-of-court settlement though seems a good solution as it might, in opinion of few, prevent lot of violence and blood shed, but in reality, it might be an unethical way of dealing with things also. Meaning, who would negotiate, and on what basis would we be able to determine who they represent? What if the 'UP Sunni Waqf Board' does not represent the views/aspirations of all/majority of Muslims? Or alternatively, is 'The Ram Janmabhoomi Nyas' truly representative of all Hindus' views/aspirations? Also, a legislative action would not be appropriate as the legislature is not trained nor qualified to weigh the various evidences available. So, whatever be the dispute, faith, which is antithetical to human capacity to reason cannot be invoked for resolution.

Synopsis:

I hope that I have been able to highlight the major ethical considerations in my analysis. It is easy to confuse that I was trying to deal with the legal aspects of the problem, because law is very much based on ethics. However, I have studiously avoided dealing with legal issues, because I am not an expert, I do not have all the evidence at my disposal, and also because, in some areas law might not coincide with what is most pragmatic or what could be perceived as most ethical.

One of the most important problems I wanted to highlight was that as the human race has progressed ahead, somehow, perhaps because of lesser scarcity of resources for basic survival, frequency of armed conflicts has drastically come down. Some might wish to disagree, but it must be noted that this shift can be gauged from the fact in quite a few discussions, violence is seen as reprehensible and it is accepted that it should be used as the last resort. [I do not know how it used to be in the past, but it seems mass murderers were celebrated as 'conquerors' and 'successful' kings, etc. It also seems that in the past, high premium was laid on physical strength and the ability to inflict wounds and kill. But such people are not usually celebrated in the civil society]. What this shift in public opinion, which tilts towards universal human rights, has done is that violent means of acquiring property are outlawed and are severely criticized in the public. This has reduced the number of instances of such forceful acquisitions. But when we look back in history, such forceful acquisitions were considered quite legitimate, and in fact were even celebrated. So, when we try to determine the legitimacy of current ownerships that were at behest of such coercion, we are faced with an ethical dilemma. Can such properties that were acquired by the ancestors of current owners through force (illegally bu current standards) be considered legal/legitimate/ethical. This confusion arises, because one of the important caveats in application of both ethics and law is consistency, meaning that two similar/identical acts carried out in exactly same circumstances but involving different people at different time and place should be considered similarly/identically legal/legitimate/ethical or otherwise.

So, the question is: what point in time shall we set before which the forceful acquisition of any property that would have occurred should be considered legitimate and whatever would occur later than that would be considered illegitimate?

Disclaimer:

  1. I am not an expert at law. This analysis is an outcome of my crude understanding of various issues involved. Also, it was not keeping in view the technicalities of law and the need for evidence (e.g., whether a Temple devoted to Ram existed at the disputed site and whether what was demolished in 1992 was indeed a Mosque going by the legal definition of a Mosque), but rather my crude understanding of ethics, on which legal system of almost all democratic and liberal countries are based.
  2. Many have argued that the site should be taken over by the government (using the Constitutional provision equivalent to that of 'eminent domain') and used for larger good of the public. I very strongly opposed to this idea. Because, this view would then allow for sadistic elements in the society to dispossess others of their legitimately owned property simply by disputing its ownership fully knowing that others would urge the property's taking over by the Indian State. E.g., if I break the glasses of a pub at a disputed site, can then others urge that instead of trying to establish its genuine ownership using evidence available and the provisions of law, that the government take it over and convert it into a hospital for larger good of the society because nobody needs a pub anyway?

PS: A good article I had come across explaining the basic issues considered by the Allahabad High Court could be found here - The Ayodhya Anatomy (click) by The Telegraph (Calcutta).

6 comments:

  1. Your analysis is quite balanced and rational. The analogy you used is quite effective in conveying your point across & Helped me in understanding the Ayodhya issue in greater detail. I can understand that you only concentrated on legal issues regarding Ayodhya conflict, the only thing i felt missing in your analysis (and analogy) was the fact that as much as it's a conflict of who is owner of the disputed land (board-game), there is another dimension of this issue, its religious and political significance. Now i am not at all aware if Indian Law is influenced (legally) by such factor(s) (especially religious factor) or not, but i would love to know about it, because the question you asked "what point in time .... would be considered illegitimate?" is largely dependent on these factors.

    I am in complete agreement with you that decision should be definite. "Taken over by Government" would be a disastrous decision bcoz of reasons you correctly mentioned.

    ReplyDelete
  2. Sahil,

    Welcome to the blog!

    I would not say that I have concentrated on legal aspects, only somewhat touched upon them. What I have instead done is to concentrate on ethics as we understand them instinctively. Of course, ethics (to roughly define, "a study of what and why one must do/not do when two or more people interact or when one's actions would have effect on other person(s)") in liberal democratic (which India somewhat rightly claims to be) countries are what guide the legal system and the Judiciary. But while ethics allow for subjectivity, law has to be more exact. Sometimes, what is ethical might be illegal, and what is legal could be unethical. E.g., in a country where the political class is so corrupt, that whatever one pays as taxes, almost fully is gobbled up by corrupt practices, it might be better (more ethical) to partly ('partly' because the corrupt government would be still providing for few facilities like roads, and security, for which one should pay) evade tax-paying and instead do some charity on one's own. However, this position would be illegal. On the other hand, if I refuse to donate blood to a friend who'd donated blood for me in the past and who's met with an accident, simply because I want to watch a movie, then I am being extremely unethical but I'm doing nothing illegal.

    Also, law has to deal with lot of specifics and take a pragmatic and practicable view of things, whereas ethics are based more in idealism. E.g., the provision of 'statute of limitations' would make inadmissible a suit against adverse possession if it is filed 12 years and one day after the alleged possession, but it would be admissible if the said period is 11 years and 364 days! Meaning, just a difference of 2 days in filing the case would make the difference between an act of aggression being considered legal v/s illegal. But from perspective of ethics, in either cases, the act would remain as much unethical as on the first day of adverse possession.

    So, what I have used as guide is something that borders on both ethics and law....

    ReplyDelete
  3. ...And yes, you're quite right. There is indeed a political, religious and sentimental aspect to the whole issue, which I have deliberately not touched upon. Usually, I try to restrict my posts either to use of logic or expression of my emotions, and not both. :) Obviously, I am not emotionally attached to the Temple, but I find it quite hypocritical when people say that demolition of such an insignificant structure (as far as Babri Mosque's significance in Islam is concerned) had made Muslims angry and that is what had led to the Bombay riots in 1992-93 and the Godhra train burning in 2002 (in wake of which the Gujarat riots had occurred). Also, I find it hypocritical when someone says that the Babri Mosque was a symbol of secularism; I disagree, considering the circumstances under which it was built, it was a symbol of celebration of violence and bloodshed (that Babar had indulged in, in the process of establishing his rule in India). However, these feelings are subjective. But I would do a post on something related in one of the coming days.

    It is difficult to say what the verdict of the Courts would be. I wouldn't be surprised by any of the three outcomes - handing over the site to the Waqf Board, or to the Ramjanmabhoomi Nyas or to (one of the agencies of) the government. What the court might though give weightage to is the fact that Ayodhya is of much greater significance to the Hindus than the Babri Mosque was of to Muslims (and this is a stance I tend to support). But the court and government are extremely unlikely to go by the consideration that Hindus are 80% of the population and Muslims are only 15% (and again, this view is something I support to an extent).

    To be honest, I don't know how the time-factor (more than four centuries since the Ram Temple was destroyed) would play out in the Court. But it looks like that the Judiciary might not think this to be a very important consideration (unlike how the British Judiciary had viewed it - BTW, this instance was a classical of case of "divide and rule"-policy of the British!).

    Thanks for the time and effort of reading and commenting, and also for the praise!

    Take care.

    ReplyDelete
  4. You have tried your best in creating an analogy that is generic for generic interpretation and resolution. It was a good starting point.

    Unfortunately the issue is not “that” simple. If it were an issue of mere ownership - which in legal lingo is referred to as “title” then we the laity might be able to resolve it.

    Even in such a case it is rather difficult to do so because in 1528 when the original temple was demolished, the Mohguls were rulers and they claimed all land was theirs, something similar to “staking” in America. Since they “staked” a claim, they had given themselves “title” to the land in today’s legal parlance.

    Since then there have been internecine claims from the aggrieved Hindus whenever they were a little stronger and - counter claims whenever the aggressor, i.e. the Muslims felt they were stronger. This process went on till 1936, and as you say, when another aggressor, viz. the British stepped in, and in the capacity of the new “title” holder of all land, adjudicated the dispute to issue “title” to the Sunni Waqf Board.

    The issues which now need resolution are:

    1. Whether, as the original owners of the land prior to 1528, the Hindus should be declared the rightful “title” holders of the land?

    2. Whether as conquerors who awarded “themselves” the “title” to the land, the Moghuls / Muslims should be declared the rightful “title” holders of the land?

    3. Whether as the new conquerors who awarded “themselves” the “title” to the land, the British became legal “title” holders of the land and thus acquired the right to enjoy, sell or donate the “title” of the land to the Sunni Waqf Board?

    4. Whether as the Hindus reclaimed the land – de facto in 1934 or 1949 or 1992 did the “title” now revert to them?

    5. Whether any limitation of time is applicable to the usurping, acquiring, being awarded etc of the title?

    6. Finally and more importantly, as the Muslims have usurped “titles” to land at various places to build mosques, tombs etc and some of which they have themselves abandoned why can they not relinquish “title” one more piece of land especially because, the Hindus, the original “title” owners of the land believe that is very sacred to them as much as Mecca or Medina are sacred to Muslims.

    ReplyDelete
  5. The third message from heaven...

    If any man worship the beast and his image, and receive his mark in his forehead, or in his hand, The same shall drink of the wine of the wrath of God, which is poured out without mixture into the cup of his indignation; and he shall be tormented with fire and brimstone in the presence of the holy angels, and in the presence of the Lamb: And the smoke of their torment ascendeth up for ever and ever: and they have no rest day nor night, who worship the beast and his image, and whosoever receiveth the mark of his name.

    ReplyDelete
  6. Dear Ketan, I liked the analogy to make it look simpler & easy to understand the dispute. personally, I have little interest in the actual claim about the ownership of disputed land. I understand the importance of the piece of land to Hindus is much more than it could possibly be to Muslims given it being the birth place of one of the most revered figure of Hindus. Though technically its impossible to prove it but then its matter of faith but I don't intend to get into the technicalities of the issue. I feel, waqf board on behalf of Muslims must give up the claim and gift it to Hindus. It will help in building a lot of good will between the communities. But my problem comes, how can you gift it to organisations who have been holding gun by your head. They demolished a structure which is sacred to the community(center watched & state connived in the demolition). They indulged in worst kind of rioting through out the country in the name of mandir/masjid. They use the issue to communally divide the nation whipping passions in the name of religion. I agree that a negotiated settlement is best as matters of faith can not be decided by the court. For court it would be just about ownership right of the land. It can never take into account the emotional or religious attachment factor involved. But the basis of any such negotiation has to be respect and dignity for each other. Both sides must come together & work out a deal to bring about a closure to the dispute forever. And no mathura, kashi please after this. We have seen enough bloodshed over the issue,those guilty of demolition of mosque and rioting must be punished (not protected) to send the right message to the community and form a conducive atmosphere for a negotiation over the issue. If giving up the claim can bring the two communities together, Muslims representatives must show the right sensitivities for other side and gift it to Hindus. I just hope, the better sense prevail as no mandir or masjid is bigger than Human lives. Humanity should never be held hostage to such issues.

    ReplyDelete

Well-articulated disagreement would be a very good indicator that I was understood, and would be appreciated more than perfunctory agreement or praise. But of course, you could agree and praise...

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