Constitution Day Address at Law College, VIT University

Seventy ago on November 26, the Constitution of India was adopted by the Constituent Assembly. The Preamble to the Constitution of India bears testimony to the historic occasion. However, the Constitution was only partially adopted that day. The full adoption came two months later on January 26, 1950 - the day is celebrated as the Republic Day to mark the anniversary of occasion. Post Emergency, after the then Janata party also failed to hold on to the government at the centre, there were strong waves of introspection of the situation that gave place to emergency. The flagrant violations of human rights at that time, the ADM Jabalpur decision during emergency when the Court infamously said that there was no right to life at all when there was emergency in operation, the memory of supersession of judges and when A.N.Ray was appointed as CJI because three other judges who delivered the Kesavanada verdict were found as not towing the government's policies and the obvious affront to the independence of judiciary that they meant, all conjured in the minds of the right-minded intelligentsia and particularly the legal fraternity. Just as the legal professionals took active participation and gave leadership in the Freedom Movement, some of the prominent lawyers at Delhi saw themselves donning the role of torch bearers of the ideals of the constitution and at a meeting of the SC Bar Association, Shri.LM  Singhvi who was then President of Supreme Court  Bar Association and who had latter served   as Indian Ambassador to UK proposed to select 26th November, the day in which the Constituent Assembly  adopted the draft constitution, as the Law Day. The National Law Day was celebrated thereafter till 2015. The Government of India declared 26 November as Constitution Day on 19 November 2015 by a gazette notification. The Prime Minister of India Narendra Modi made the declaration on 11 October 2015 while laying the foundation stone of the B. R. Ambedkar memorial in Mumbai. The year of 2015 was the 125th birth anniversary of Ambedkar, who had chaired the drafting committee of the Constituent Assembly and played a pivotal role in the drafting of the constitution.

The several objectives that were detailed at the first meeting dovetail to secure a cohesive democracy built on the rule of law. The constitutional vision is contained in the preamble and the ideals expressed were contained in Part III containing the Fundamental Rights Chapter. The way the State will proceed to secure the vision by policies are set out in Part IV of the Constitution. The role of the student community in preserving and realising constitutional goals cannot be under-estimated. During the British occupation of India, Gandhiji involved the youth in the freedom movement in large measure. He had no qualms about even asking the students to abandon studies to join the bandwagon of freedom fighters. Writing in Young India Mahatma Gandhi said, “the world produced brilliant students before schools and colleges came into being. There is nothing so ennobling or lasting as self-study. Schools and colleges make most of us mere receptacles for holding the superfluities of knowledge. Wheat is left out and mere husk is taken in. I do not wish to decry schools and colleges as such.  They have their use. But we are making altogether too much of them. They are but one of the many means of gaining knowledge.” He expected the students to be brave and courageous. He said, “Let them realise that learning without courage is like a waxen statue beautiful to look at but bound to melt at the least touch of a hot substance.”

Why am I speaking about courage to students? What is the message that I have for the young students on a Constitution day? Of the several provisions, the preamble contains the most pregnant expressions for it truly is a declaration of what we the people of India set for ourselves. True to the oft quoted expression of the Constitution as a dynamic document that gives itself to changing aspirations of the people, the preamble underwent an amendment to include the word “secular” when it said, “We the People of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic Republic and to secure to all its citizens, Justice, Liberty, Equality, Fraternity, etc. There are clouds overhanging our heads that threaten the cherished constitutional goals and exalted institutions that exist to protect and enforce these rights. There is an eternal vigil necessary whenever there is an infraction of these high ideals set forth in this document; or when the institutions constituted under them are denigrated or when the Constitution is subverted. It is essential for us to recognise the recent happenings that have immense constitutional importance. I will cite three instances: (i) dilution of Article 370; (2) Inability of the State to enforce the judgment of the Supreme Court or the Court making a judgment has worries about its enforceability and therefore spares even the executive not to do what it is bound to do and (3) the way students’ unrest in campuses and the youth power are snuffed out in one place and protected in another. I am not going to give you answers that I have secured for myself or the endeavour that I am undertaking but I am flagging some important signposts that beg for minute attention and informed discussion.

It is essential to know that Article 370 wrote itself into the Constitution after extensive discussion for more than 5 months between Jawaharlal Nehru and his colleagues with Sheikh Abdullah and his colleagues. The State of Jammu and Kashmir is the only State in the Union of India which negotiated the terms of its membership with the Union. The Constituent Assembly merely approved the draft and the Article recorded the fact of a solemn pact. From 1950, we have fought 3 wars with Pakistan in 1947, 1965 and 1971 and later the Kargil conflict, all fought on Kashmir. The ordinary person could say that the festering   problem has now been put an end with the dilution of Art 370. It could be on account of fatigue of what we have gone through. But for students of law, they must engage in searching questions that will include, the  history of the Kashmir tangle, the circumstances that lead to incorporation of Art 370 and the transient nature of the provision to be subject to the decision of the Constituent Assembly of Jammu and Kashmir, remember not the legislative assembly of the States, constitutionality of the legislative action, the lock down of normal life in Kashmir, the arrest and detention of all representatives of the people. A lady who came to the Supreme Court seeking for permission for seeing her mother was advised by the court to see her mother and return but added sarcastically, 'do not go around the city in the cold.'

The decision of the Supreme Court in Sabarimala Case was brought at the instance of the Indian Young Lawyers Association is important not merely for understanding the concept of freedom of religion but also whether certain of the practices form the bedrock of essential religious practices protected under Art 25. What is equally important also is when there is a judgment approving of women of all ages to enter the temple, the State was not able protect all persons seeking entry and when the review was disposed of with a reference to a larger Bench, the State Home Minister said that the government cannot grant any protection, for, although there was no de jure stay of the earlier order, there was a de facto stay!  Justice Rohinton lamented,  

Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things. After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India.

The third issue is how the students’ unrest at JNU is seen and commented by the press and people alike and how the hooliganism of students of Benares Hindu University students who will not learn Sanskrit from a Muslim teacher goes without comment from the digital media or the university administration. The former has an intimate Constitutional law angle from the context of right to education, support for the poor and the bright students and students belonging to socially disadvantaged sections that the State is bound to give assistance but would mindlessly increase hostel fees and other charges several times the existing fees and when resisted, beat them up and arrest them and at the same time when a brazen attempt to stifle a constitutional guarantee under Art 16 against discrimination on the ground of religion is practised, there is no whisper of admonition from the government or the university administration against the protesting students.

Do not think that democracy is assured by the fact that elections are held once in five years. In a book by Steven Levitsky and Daniel Ziblatt titled How Democracies Die, the authors identity four markers which indicate how democracies degenerate to authoritarian regimes:

1. Rejection of or weak commitment to democratic rules of the game. This would be manifest through rejecting the constitution or express willingness to violate it. They may consist of restricting basic civil or political rights.
2. Denial of legitimacy of political opponent. It may manifest by a claim that the rivals constitute an existential threat either to national security or prevailing way of life.
3. Toleration or encouragement of violence.
4. Readiness to curtail civil liberties of opponents including the media.

They write about Trump’s USA and worry themselves that Trump answers all the four markers. Raise these questions to Indian situations periodically, see if we are assured of a working democracy where human rights of all individuals are respected; whether the press reports fairly against actions that imperil the safety of the socially, economically and religiously disadvantaged sections; whether dissent is tolerated or leaders of opposition are branded as anti-nationals and cases are foisted against them and whether the perpetrators of violence have state patronage or quick action taken to apprehend them. Introspect, ideate and engage in active conversations. In your vigilance lies the sanctity of the solemn Constitution; in your engagements to question  constitutionally unacceptable practices lie the vibrancy of the rights guaranteed in the constitution; in demand for adherence to the rule of law by every organ of the State lies the safety of the institution of democracy.

Address at the VIT University, Law Department on 26th Nov 2019

Ayodhya settlement once and for all

Settling the Ayodhya case once and for all

There must be an understanding that in the outcome, there is neither victor nor vanquished

Sushil Kumar VermaSushil Kumar Verma

The Ayodhya issue is tantalisingly poised and there are only guesses about how the case could pan out — the Supreme Court of India had allowed arguments before the court and mediation talks to proceed simultaneously. It has been an unusual step. The dichotomy of this approach could perhaps be explained by the fact that the Court had marked August 15 as the deadline for turning in the settlement. Then, in July the pace of mediation was stepped up and the court wanted a report by August 1. Since there was no settlement by then, it commenced hearing. Down the line some parties made requests for a resumption of talks. It looked as if the court was unwilling to stop the hearing but also reluctant to let go of the possibility of a compromise.

Parties to appeals, settlement

The appeals pending before the court — as many as 14 — arose out of five original suits filed in Allahabad. Out of the said five suits, four were filed between January 1950 and 1962. The first two were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on September 18, 1990. The third suit was filed by the Nirmohi Akhara of the Ramanandi Sect through its Mahant in 1959. The fourth was filed in 1961 by the Uttar Pradesh Sunni Central Waqf Board and eight Muslim residents of Ayodhya and the general secretary (by name) of the Jamiat Ulema Hind, U.P. branch. In this suit many Hindu parties were arrayed as defendants. Representative status was given by the court to the plaintiffs and defendants in this suit to represent their two communities respectively. The fifth suit was filed in 1989 by Bhagwan Sri Rama Virajman (the deity is regarded by law as a perpetual minor requiring representation through human agency) and Asthan Sri Rama Janma Bhumi Ayodhya (the place of birth) through Sri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad and sought to be treated as the friend of the deity.

Going by media reports, it appears that some of the significant parties in the case, but not all, are parties to the settlement. It is believed the Vishwa Hindu Parishad in the form of the Ram Janambhumi Nyas and its supporter T.N. Pandey as the current friend of deity on the extreme side, and the Jamiat Ulema Hind on the other extreme side are opposed to the settlement. If that be so, it means there is a broad spectrum in between, of the Sankaracharyas backed Punaruddhar Samiti, the Nirvani and Nirmohi Akhara bodies and the Hindu Mahasabha which are pro-settlement.

And most important of all, the Uttar Pradesh Sunni Central Waqf Board, the statutory custodian of the disputed site under the Waqf Act, is reported to be a signatory. If these reports are anything to go by, the board is willing to acquiesce in the acquisition of the disputed site and give up its claim to it if other places of worship are protected and the Muslim community gets a fair number of additional mosques, in Ayodhya and elsewhere, where prayers can be held. So, what does a court do under these circumstances where a number of parties come forth with a settlement which they can subscribe to and which could cease the conflict, but which other parties oppose?

The Code of Civil Procedure allows one or more of community of persons, with the permission of the court, to sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested. The court shall, in every case where permission or direction is given, at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

Independent of the power to represent the general body, any person on whose behalf, or for whose benefit a suit is instituted or defended may apply to the court to be made a party to such suit. The only restriction for a settlement so brought about to bind all persons is that no suit could be withdrawn, or compromise made, without the leave of court. The Sunni Waqf Board having been given representative character and which claimed ownership to the site and the mosque literally excludes any scope for any other person among the Muslim community to lay claim to the property contrary to the concessions and agreement which it is prepared to enter into. The Hindu parties that have not come on board will have to tell the court why they are resisting a settlement in which they are getting the land for which they have been fighting for so long and raised such large funds, when the site is being effectively given up by the Muslim parties, and where the Ram temple can now be a reality. A lack of bona fides may result in some strict action from the court. Where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, as per the diktat in the Code of Civil Procedure, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.

Width of court jurisdiction

There is another larger aspect here and that is the overarching power given only to the Supreme Court under Article 142 of the Constitution, the power to do complete justice in cases before it. This rare and almost awesome power permits the court to work through legalistic objections and climb above procedural difficulties to bring about the best possible result for the parties — and in this case, the country. In the words of the Supreme Court itself in State of Punjab v Rafiq Masih (2014), “Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute.

It is a power that gives preference to equity over law. It is a justice-oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law.” Given the fact that “justice” itself is susceptible to a plurality of meanings, the court could mesh the wisdom of parties’ efforts in putting together an agreed formulation, aided by suave handling by the mediators and the counsel’s lucubration that played out in court for 40 days of marathon hearings. It can come out with a humble offering on a platter of how the collective wisdom of all parties yielded to a denouement that douses mutual bickering among the communities and cement a lasting peace that will do India proud.

Need for a strong message

The majority community owes to its Muslim brethren an assurance that the ugly incidents of December 6, 1992 shall never be repeated in any other place, neither in Kashi nor in Mathura. And that in the outcome, there is neither victor nor vanquished. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcome.

On August 15, 1947, Gandhi marked the day with a 24-hour fast, prayer and spinning yarn. When C. Rajagopalachari visited and congratulated Gandhi for restoring peace in the city of Calcutta, Gandhi said he will not be satisfied “until Hindus and Muslims felt safe in one another’s company and returned to their own homes to life as before”. His hope remained but a dream. On the day when the judgment of the Supreme Court is given, let the Prime Minister and the Chief Minister of Uttar Pradesh appear along with other parties to the litigation to hear the judgment of the Supreme Court as it is read in open court. This act will instil confidence that even if they had failed in the past, they shall begin yet again an era of goodwill and trust among all sections of the community.

Published in the Hindu on 29th Oct 2019

Ayodhya imbroglio, is mediation viable?

The suggestion of the Supreme Court for considering mediation for resolving the Ayodhya Mandir-Mosque dispute shall be seen as sagacious counsel to seize the opportunity to bury the hatchet between the warring parties and usher an era of understanding and camaraderie. Court’s exhortation is not an abdication of its duty to adjudicate. It is a propitious reminder to seek answers that are not binary options; if multiple, they cannot be ticked as right or wrong; or just or unjust: Is not the Ayodhya dispute outside court and not inside? Can the lawyers be trusted to argue the cases with dignity? Will the opinion of the court represent a dispensation of justice to all parties? Will all the people rest in quiet after the verdict and go about peacefully? Do we not have answers that could bring victory to all of us Indians as siblings in arms and not sepoys with arms?

Standards of proof in court are different
It is difficult to say when the ‘Ayodhya dispute’ itself started. There was no unanimity in the 3 member judgment of the Allahabad High Court delivered on 30.9.2010 that there was a temple at the place where Babur had ordered the construction of a mosque or when the mosque was constructed. However, Justice Sibghat Ullah Khan wrote that there was evidence that much before 1855, Ram Chabutra and Seeta Rasoi had come into existence in the same place where the mosque had been constructed. He observed: “It was very, very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.” Can we understand that there was unusual camaraderie between two communities, both offering worship according to their own tenets? Justice Khan did find not proof that the Babri mosque was constructed at the same place where there existed a Ram temple. However, there was archaeological evidence of existence of ruins of once existing temple under the Babri mosque. He said, “Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque” (sic). This was central to the final dispensation that Hindus and Muslims jointly owned the place.  Justice Sudhir Agarwal said that there was not even proof that the mosque was constructed in 1528 but “this much is clear that the same was constructed before the visit of Joseph Tieffenthaler in Oudh area between 1766 to 1771.” Do you realise that even commonly accepted ‘historical facts’ may be found to be not established, if you subject various incidents to pass through the prism of judicially acceptable evidence?

Where Courts cannot be effective
Judgments of courts do not always resolve disputes. Issues of language, region, religion, and sharing of natural resources are wholesome recipes for making political capital to create divisions amongst people. River water disputes between States have been stoked for cheap political gains, even when facts and law were clear and judicial pronouncements were rendered after long deliberations. If the courts in India carry the odium of poor performance, it is largely due to the kind of cases that are brought to the portals of courts are not typically fit to be brought to courts but resolved through negotiations. There are too many cases that are not just fit for hearing before courts; that require no forensic skills of reasoning to write lengthy judgments; that are ill-suited because they adopt adversarial posturing; And Ayodhya imbroglio is precisely one such.

Identifying the nature of Ayodhya dispute  
It is no less an enigma if Sri Ram is a mythological character or a historical hero. Mythologies cannot all be wished away as distortions of facts and hence meaningless. They help consolidate a common belief system through continual storytelling and foster a sense of belonging to a shared experience of history. In that way, Ram’s birth place as Ayodhya evokes the same sense of reverence as Jerusalem does to countless persons that owe allegiance to Judaism, Christianity and Islam. There is a wide spectrum of options in all types of cases, with negotiation at one end and trial as the other. The former means that the parties retain control over the process and outcome while at the trial, a third-party judge or arbitrator has a power to render a binding decision on a pre-designated process of adjudication. Within these extremes exist at the middle mediation, where the third-party neutral does not have a power to impose a binding decision but the parties themselves examine and decide on the outcome. The Ayodhya dispute is not a case that is built on rights where a third-party judge could deliver a judgment that is satisfactory to all of them. This is an interest-based litigation where one party desires the retention of status quo as a mosque, while the other is interested in establishing as place of worship not based on any established right but what one believes as place of birth of venerable Sri Ram based on his religious and cultural moorings. Costs and time are not issues at hand. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcomes that are better assured in a formulation where parties control the outcome. A public posturing through arguments of counsel will offer little scope for concessions but a concession on a point in a confidential in-house process will not obtain public gaze to be viewed as a sign of weakness. In creating a system for dispute resolution, it is best to identify as many persons as possible as stakeholders in order to satisfy a large body of persons with diverse interests and garner better support to the outcomes.
    
Identifying the stakeholders
There was an attempt by Sri Sri Ravishankar to mediate the dispute. He oversimplified the effort.  His gesture was good but the process that he adopted was not adequate. Identifying the stakeholders to the dispute and convening them are key elements to design a system to resolve the dispute and formulate an agreed process of carrying the negotiation. The parties named in the 13 appeals pending before the Supreme Court are naturally the persons who shall be called to participate. Out of the 5 suits, 4 suits were filed between January 1950 and 1962. The first 2 suits were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on 18.9.1990. The 3rd suit was filed by Nirmohi Akhara of Ramamnand Sect through its Mahant in 1961, the 4th suit was filed by Sunni Central Board of Waqfs Uttar Pradesh and 9 Muslim residents of Ayodhya in 1962. The State of UP and some named individuals were also parties. The 5th suit was filed in 1989 by Bhagwan Sri Ramlal Virajman  and Asthan Sri Rama Janma Bhumi Ayodhya through Shri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad. The worshippers’ suits are representative actions (O.8.R.1 under Civil Procedure Code) and the Court always has power to order general notice to all the worshippers and implead parties whose presence the court thinks as necessary.

Identifying the representative body on the side of Muslims is not difficult, for they are already before court. The Hindu Samaj has no such representative body. The persons who brought the structure down and delivered the denouement were a nameless crowd; hooligans to some; if even heroes to the eyes of some. They cannot be surely called to the table. The stakeholders are persons who are the chosen representatives of the dispute who want a solution. Hindu outfits that have evinced no political ambition and who have no clout in the corridors of power shall also be the stake holders to design the system. Representatives of Ramakrishna Mutt and Aurobindo Ashram that owe their institutional origins to Swami Vivekanand and Sri Aurobindo, the very names that ought to instil down the order a swing away from narrow sectarian approaches could be invited to participate. The Supreme Court which is seized of the matter itself could identify the stakeholders and help them design the process.

Systems design to indicate process involved for carrying dialogue
If adjudication through courts or arbitration is not ideal, a third party neutral or body of neutrals that the stakeholders agree will start the process. Normally, the parties themselves decide on the mediator. It is expected that all the information given at the session is confidential. No part of the statement in the process of dialogues shall be used as evidence in any court of law. Given the complexity and enormity of the dispute, the person or a body of person shall be such whose neutrality is impeccable and stature, colossal. The person that heads the panel shall be just not a religious head belonging to any denomination but a global spiritual leader, whose respects our culture in all its beautiful diversity. The Dalai Lama could be a great name to reckon. The dialogue will not be merely on facts pleaded and documentary evidence adduced but will also be on issues of law. Convening the parties to the dispute and setting a time frame will be the task of the panel of neutrals. The respective parties will have the benefit of legal advice at the negotiating table and the statement of law aired freely, will help the parties refine their options. The systems design will include suggestions if the panel could claim neutral opinion on points of law based on the points of disputes Or, the Supreme Court may itself volunteer to give written opinion on the points of law jointly formulated by counsel to the panel for helping the parties to carry forward the dialogues. The brainstorming will be in every bit of options available. The process will match the categories as: what ought to be considered; what may be considered; even what parties are not sure if they should be discussed or not and what both parties are unanimous that they shall not be discussed. They will result in a consideration from the ‘surely must have’ ones to ‘issues of doubt’ to ‘seemingly impossible’ ones.

Historical revisionist exercise is dangerous
We cannot engage in historical revisionist exercise in re-building temples and demolishing places of worship of other religions. It is a fact of history that the Moghul Rulers practised Islam and East India Company and later the English’ direct rule allowed Christian missionaries to proselytise and propagate their religion. The French’ and the Portuguese’ rule in different pockets of India also secured converts from the local populace to Christianity and their modified forms of worship. What if there are persistent demands for demolition of churches and mosques on actual or assumed stand that in any existing Hindu place of worship, there was a church or mosque? Take, for example, the demands that already exist for relocation of mosques and ‘restoration of temples’ at Mathura and Varanasi. A perfectly documented history is the private diary of Ananda Ranga Pillai (Volume 2, 1746 AD), Chief Dubash (translator) to Governor Dupleix of Pondicherry, where he records to the minutest detail of how a Shiva temple was demolished and a Church consecrated in the very same place. The Church is situate is Mission Street at Pondicherry where ardent Christian worship and Sunday Mass are conducted regularly. Imagine, the upheaval it could cause if there is a demand for restoration of the temple at the place, citing the Ayodhya example. The whole exercise must commence from the accepted premise built on factors that (i) Ayodhya uniquely presented an ever ranging dispute running to several generations about the ownership and its nature of user; (ii) at the time of India’s freedom when the will of the people of India prevailed and we gave to  ourselves a written Constitution agreeing to be governed by rule of law through parliamentary democracy, there existed no dispute for restoration of temple in any court other than at Ayodhya and (iii) what happened on 6th December 1991 by the demolition of the disputed structure was an act of vandalism, never to be repeated with demand for construction of any other place of worship in the place of any other form of worship. If the Centre gives assurance that it shall protect all ancient places of worship against vandalism and against conversion of any place of worship from one religion to another, there is simply no reason why the idea of negotiated settlement through a non-adversarial, non-adjudicatory conciliatory process will not be acceptable to all parties.