The Allahabad high court judgment on the dispute over the ownership of the Babri Masjid site has aroused two very sharply polarised sets of reactions.
There is a large section of intellectuals, jurists and common people who sincerely believe that this verdict is a brilliant piece of juridical engineering. It does take into account legalities, but is not constrained by them and has been able to carve out a path of negotiation for both Muslims and Hindus. It has in fact created a space where both the contending parties can sit face to face without any one of them feeling coerced and bloodied.
On the other hand, there are people who feel that this judgment is bad, in the legal as well as moral sense. According to them, the judges have ventured into areas where they have no competence, have tried to turn myth into history and have sanctified an act of criminality -- planting of the idols of Hindu gods and goddesses under the central dome of the Babri Masjid.
It has been said that the Muslims' right to the land has been recognised and the faith of the vast majority of Hindus who did not have the support of the 'modern science of history' to back their claim that it was Ram's birthplace, has also been lawfully validated.
It is quite another matter that there are people like Anupam Gupta, a hardcore legal mind who has interrogated the persons instrumental in the demolition of the Babri mosque for nearly a decade as the standing counsel for the Liberhan Commission, who point out that the "creativity" displayed by the bench could not have been possible without exceeding its brief and that, too, selectively.
Says Gupta, "Actually, issue No 11 in the leading suit No 4 reads thus: 'Is the property in suit the site of Janambhumi of Sri Ramchandraji?' Obviously, this was a question of historical fact. However, according to Justice Agarwal, this issue required the discharge of an impossible task and had necessarily to be treated as follows: 'Is the property in dispute the site of birth of Shri Ramchandarji according to traditions, belief and faith of Hindus in general?' This is how he recast the issue while answering it in his judgment, transforming the issue beyond recognition. This is possibly the most fateful part of the judgment."
We are asked not to indulge in such nit-picking, not raise questions as to why did the bench skirt the issue of the patent illegality of the forcible installation of the idols in the mosque on a wintry night in November 1949, a criminal act which forced Prime Minister Jawaharlal Nehru to ask the then chief minister of Uttar Pradesh to undo it because he felt that 'a dangerous example is being set there which will have bad consequences.'
But was not it Nehru who had committed the original sin by inflicting secularism on India depriving the large populace of their 'sociology' that is their faith?
Ashis Nandy says those critical of the judgment are purists whereas the flow of the river of life carries with it all kinds of impurities. I am also reminded of the wise words of Hajari Prasad Dwivedi who said that everything human is avishuddha (imperfect).
There are many people like me who held back and asked again and again whether our 'secular ideology' prevented us from giving the judgment its due. If the judgment creates an opportunity for the contenting parties to forge a compromise, why not seize it?
There are people like me who are all for compromise if it leads to peace. If the judgment succeeds in nudging Hindus and Muslims to find a compromise ensuring peace, who am I to question it?
Agonising over these issues I started reading a book, On Compromise and Rotten Compromise by Avishai Margalit. He makes a distinction between an acceptable compromise and a rotten compromise. Calling compromise a great political virtue, especially for the sake of peace, he warns against compromises which are rotten at in their core, even if it means losing peace.
Rotten compromises are those which force one of the parties to live a life of subjugation and humiliation.
For example, the victims of the 2002 Gujarat carnage should fight long and painful legal and other battles rather than giving into the offers of compromise by the killers and rapists who are offering a secure life to their victims if cases against them are withdrawn.
It is better to fight a losing battle than go for a peace whose content is rotten.
Examining great compromises like the Munich agreement, the Yalta conference and Arab-Israeli peace negotiations, Margalit again differentiates between 'Faustian pacts' which are individual in nature and essence and collective endeavours which seek peace but are 'pacts with the devil'.
He says the Munich agreement between Adolf Hitler, Benito Mussolini, Neville Chamberlain and Edouard Dadalier transferring Sudetenland from Czechoslovakia to Germany on the basis of his promise of not making further territorial demand on Europe was rotten, the kind of which should never be signed under any circumstances.
Was it rotten because it was effected under threat, or because its motive was doubtful, or because it was based on an error in political judgement or because its content was rotten?
Margalit says that none of it makes this agreement rotten, rather, '...the one with whom it was signed, makes it rotten. A pact with Hitler was a pact with radical evil, evil as an assault on morality itself. Not recognising Hitler as radically evil was a moral failure on top of a bad error of political judgement.'
Drawing analogy from the Munich agreement to understand the case in discussion, one can say that however hard we may try for a compromise ensuring peace with dignity for all, we are bound to fail.
And this precisely because the Lucknow bench of the Allahabad high court has made the 'friend' of Ramlalla Virajman a legal party to the dispute. The god would always need a friend to take care of his interests. This friend is one of the large amorphous Sangh Parivar.
The Lucknow bench's failure to recognise the nature of this friend becomes inexcusable in the light of the past record of the 'family' of this 'friend'. Did not it go back on its words when it did not abide by its pledge to not harm the physical structure of the Babri mosque on December 6, 1992? Are we to forget that?
Are we to also ignore that when in charge of the situation, as in Gujarat, it has always misused its position of strength?
Are we not to pay any credence to the occasional threats of the honourables of now and rabble-rousers of yore like L K Advani and Vinay Katiyar who keep dangling the carrot of not raising the issue of some 3,000 mosques if the Muslims do not insist on their right to the site where the Babri Masjid once was?
We and our courts in our haste to go for peace must not fail to recognise the nature of this third party, who should not be permitted to sit at the table of negotiation.
If our Supreme Court fails to deprive this third party of his newfound legality, we are to see more of the 'bad consequences' Nehru had warned about. And 'bad' would definitely be woefully inadequate to describe what the imagination of India is going to suffer from.
Apoorvanand teaches at Delhi University.
