Siddharth Varadarajan agonises in The Hindu today that “Force of faith has trumped law and reason in Ayodhya case”.
…..leaving aside the question of who “the Hindus” referred to by the court really are and how their actual faith and belief was ascertained and measured, it is odd that a court of law should give such weight to theological considerations and constructs rather than legal reasoning and facts. Tulsidas wrote his Ramcharitmanas in 16th century Ayodhya but made no reference to the birthplace of Lord Rama that the court has now identified with such exacting precision five centuries later.
The “faith and belief” that the court speaks about today acquired salience only after the Vishwa Hindu Parishad and the Bharatiya Janata Party launched a political campaign in the 1980s to “liberate” the “janmasthan.”
He is entitled to his views, of course.
An hour or so spent on Google Books provides me a different perspective.
In the early years of the nineteenth century, there was a directive from the British Legislature that Indian subjects of Britain must be protected in their rights according to the ‘laws and constitutions’ of India, on the principle that law can only sanctify long-held human customs and traditions. Following this, there were attempts by many to determine what were the ‘laws and constitution’ that would apply in India. Examples : William Jones, Colebrokes, Sutherland – these were some of the authorities engaged in the task. They even went into differences in belief systems in different regions of India. For example, in his book, “ Hindu Law principally with reference to such portions of it as concern the administration of justice in the King’s courts” written in 1830, Sir Thomas Strange, Chief Justice of Madras, has compiled an exhaustive list of cases in which opinions of learned pundits had been taken while delivering verdicts more suited to Hindu tradition.
A judge who had to enquire into the subject; “ In whom vests " the property of the soil under the British government " in India; whether in the Sovereign, in the Zumeendar, " or in the Cultivator?" first had to determine which law to go by, the Hindu law or the Mohammedan law? In his book,” Observations on the law and constitution of India” written anonymously and published in 1824, the judge concludes that the public law in India was indisputably Mohammedan law and had been so in the preceding 800 years. He notes in passing:
It would, indeed, be absurd to suppose, that questions of property in lands, of revenue, finance, police, where the rights, interests, or regulations of the sovereign were involved, could ever have been remitted to the decision of any tribunal but that of Islaum.
By the Moohummudan law, the Daur-ool-Hurb, as a foreign province, becomes the Daur-ool-Islaum; that is, becomes annexed to the Moohummudan dominions by the mere act of conquest, and the exercise of even a part of the law of Islaum in it. "That country is the Daur" ool-Islaum," says the Jaumeea-oor Iiumooz, " in which the laws of the Moslemeen prevail;" and, adds the same writer, " it is stated by Zauhedee, that according to the unanimous opinion of the learned, the Daur-ool-Hurb becomes the Daur-ool-Islaum, by the exercise of even some of the laws of Islaum in it." Profession of the Moohummudan faith on the part of the inhabitants is not a condition. Therefore, by the Moohummudan law, India undoubtedly was the Daur-ool-Islaum : nay, is held by law to be so now; for it is not a necessary condition that the sovereign be a Moslem.
If, then, by law, the empire of India, by virtue of the Moohummudan conquest, become the Daur-ool-Islaum, that is a part of the Moohummudan dominions, it would have been absolutely contrary to law, even an heresy, in its most formidable shape, to have suffered any law or constitution to exist in India but that of Islaum. Every law, even private right and interest, which existed in the country prior to the conquest, by that act alone perished; and so strong is the Moohummudan law on this point, that supposing even a Moohummudan subject to have previously taken up his abode, and to have acquired lands or houses in India, by the mere act of. subsequent conquest by the Moslems, the lands of their domiciled brother would fall to the conquerors, along with those of the conquered infidel, although his .personal property would be secure to him.
The Moohummudan law of conquest is explicit; and the first act of the conqueror is required to be to carry the law into effect, either by partitioning the spoil and lands among the conquerors, or by fixing the khurauj, or public revenue on the lands, and the capitation tax on the heads of the conquered. The inhabitants are first called to embrace the faith. If they become converts, they enjoy all the privileges of Moslems; if they refuse, they are then called upon to pay the capitation tax; for if they consent to this and to pay the khurauj, it is not lawful to put them to death.
Thus, for 600-800 years, starting from the 11th century, there was absolutely no legal avenue open to the Hindus, especially in the region where Ayodhya is located, to seek justice. The writ of Mohammedan law ran large. It was either ‘silent belief’ or ‘death’. This was true even in the reign of so-called tolerant rulers such as Akbar.
But, the power of faith kept the belief in Ram’s birthplace alive, well into the nineteenth century. Lord Dalhousie had commissioned Montgomery Martin to make a survey of ancient practices in Eastern India, and the latter, in his book, “ The History, Antiquities, Topography and Statistics of Eastern India” ( pages 335-338) describes his visit to Oudh ( the British name for Ayodhya) and talks about the claim made by Hindus with regard to the birthplace of Rama and their contention that a mosque had been built after destroying the temple there. After some research, Martin concludes that there is no evidence that a mosque was built over an existing temple, but concedes that it was certainly built over the ruins of an Hindu temple or palace. He even provides a sketch of a pillar ( carrying images of Hindu gods) used in the construction of the mosque. (Justice Khan, while delivering his verdict yesterday has come to an identical conclusion).
So, Siddharth Varadarajan’s assertion that “the “faith and belief” that the court speaks about today acquired salience only after the Vishwa Hindu Parishad and the Bharatiya Janata Party launched a political campaign in the 1980s to “liberate” the “janmasthan” is completely incorrect. The ‘faith and belief’ has been alive for centuries- glowing, albeit on low flame, but glowing.
His point that in deciding on matters of law ‘theological considerations cannot come in the way of logic and reasoning’ can be accepted upto a point, but as the British legislators realised two centuries back, when it comes to law, ‘logic and reasoning’ cannot be completely divorced from ‘ faith and custom”.