Rohit De’s recent posts have drawn attention to various aspects of British colonial interventions into the legal domain in colonial India. This guest post points out the contemporary significance of British colonial interventions in the sphere of religion, by focusing on the implications of a continuous line of case-law dating from the colonial era for the issues in the recent judgment of the Allahabad High Court in the Ayodhya case.

In their previous guest post, Bhupender Yadav and Vikramjit Bannerjee, the lawyers for Sri Ram Lalla Virajman and some other Hindu parties in the Ayodhya case, drew attention to the pleadings and the issues framed in the suits before the Allahabad High Court. In this follow up post, they seek to make good their claim by relying on case-law that they assert dates back to the colonial era:
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There have been discussions especially by venerable academics and media commentators that faith has no place in civil litigation. The question is, is this true? To answer that question, it is important to note that the Courts have, at least from the time of the Company Raj, dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs. Therefore post the Great Revolution of 1857 (which was substantially attributed to religious resentment), the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur. Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth, which included the following amongst other policy statements:

“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”

The British Courts thereafter came up with a very nuanced manner of dealing with religious belief, holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system, which is genuinely held. The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. (Syed Asrar Ahmed v. Dargah Committee, Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai). After independence that has been the view of the Supreme Court as well. Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions.

In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem, the Court held:

“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”

The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all, it can only go into the fact as to whether such a belief is genuinely and conscientiously held, that is all.

In order to consider as to what constitutes “essential or integral part” of a certain religion, the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda).

Coming back to the present case, the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case) famously held:

“ While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”

The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities

Now, the fact that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits, the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233:

“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties.

The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.

The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam. In fact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.

Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma). Therefore, in the present case, the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion.

The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:

“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, “Sri Ram Janamsthan”, and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.

In our view, whatever be the legal merits of the trifurcation of the land (and there are serious legal objections to that), it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.