Sambhal and the perils of judicial evasion

‘In a way, the Sambhal episode itself is the result of the judiciary’s failure to honour the relevant parliamentary legislation, in letter and spirit’
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In a paper, in 2005, on ‘judicial inactivism’, scholar Chad M. Oldfather talks about courts and their “duty to decide” or “adjudicative duty”. He explains how judicial inaction “can have consequences that are every bit as significant as those resulting from judicial action”. According to him, “judicial failures to meet the minimum requirements of the role are likely to be more difficult to detect than action going beyond its proper limitations”, and, therefore, “judicial inactivism” is, in a way, more worrisome.

Another case of deferment

The approach adopted by the Supreme Court of India in the Sambhal masjid case (Uttar Pradesh) is yet another instance of judicial deferment. The Court has refused to take an emphatic stand capable of giving the final answer to the issue. The Court ordered the civil court to freeze the matter and to put on hold the proceedings based on the survey conducted at the mosque and relegated the petitioner, the Sambhal Shahi Jama Masjid Committee, to the Allahabad High Court for a decision. The Court also indicated other legal remedies for the petitioner and requested the parties to maintain ‘peace and harmony’. It is expected that the order by the Court issued on November 29 would give temporary relief to the tension created on account of the survey ordered by the local civil court, which led to a loss of human lives. The order was also welcomed by certain minority groups.

Yet, the perils of such a gesture of judicial evasion in India cannot be lost sight of. It is well demonstrated in the country’s recent history. In a way, the Sambhal episode itself is the result of the judiciary’s failure to honour the relevant parliamentary legislation, in letter and spirit. Given the fact that the Places of Worship (Special Provisions) Act, 1991 has been breached by some courts in India and the Supreme Court itself, and that the challenge against the Act has been kept pending before the Court for years, it is essential to take an introspective and retrospective approach on the issue during the upcoming hearing on December 12.

Section 3 of the Places of Worship Act prevents conversion of places of worship of one religion or sect into that of a different religion or sect. Section 4 (1) declares that “the religious character of a place of worship existing on the 15th day of August 1947 shall continue to be the same as it existed on that day”. Section 4(2) further clarifies that the suit or proceedings with respect to the religious character of any place of worship existing on the 15 August, 1947 cannot be initiated or continued in the courts in India, after the promulgation of the Act. The Act exempted the Ram Janmabhoomi-Babri Masjid dispute. More significantly, contravention of the provision, that is, initiation or continuation of proceedings, is a punishable offence as per Section 6 of the Act. The sentence would be a jail term for three years, apart from a fine.

Parliament, as an institution, learnt from the country’s history and thought it fit to promulgate the Act, to halt the well-orchestrated game plan designed by communal outfits to dig into the past and to evoke religious sentiments for political gain, in an incremental way. Therefore, the Court should not have tried for peripheral remedies and perpetuated the uncertainties of the litigation. An assertive judicial posture on the validity of the Act is clearly overdue.

Earlier cases

The Court has often resorted to such jurisprudence of deferment on earlier occasions too. During the Shaheen Bagh protest in Delhi on the Citizenship (Amendment) Act, or CAA, the Court formed a committee to talk to the protesters and try to arrive at a settlement in Amit Sahni vs Commissioner of Police (2020). This was done without adjudicating on the legal challenge against the CAA.

Again, in Rakesh Vaishnav vs Union of India (2021), when the contentious farm laws were questioned by farmers on the street, the Court constituted an expert committee to negotiate between the farmers’ bodies that were on protest and the Centre, and to “create a congenial atmosphere and improve the trust and confidence of the farmers”.

The Court also could not decide on the validity of the Amendment till date and the issue remains volatile. The farm laws were repealed essentially because of the people’s protest and not by negotiation. In both these instances the Supreme Court failed to carry out its primary duty, namely, the duty to decide.

The order by the top court on the Sambhal masjid issue shows an exactly similar reluctance to adjudicate the core issue. There was no convincing reason for the Court for not upholding the validity of the 1991 Act. Since the enactment demonstrates basic constitutional values such as fraternity and secularism, and since it has a laudable object of preserving the nation’s social and religious fabric, a challenge against the statute ought not to have been even entertained by the Court. A disinclination to admit such pleas or at least to reject them at a later point of time, would have had the support of the Constitution Bench judgment in the Ayodhya case (M. Siddiq vs Mahant Suresh Das, 2019).

In the Ayodhya judgment, it is true that the Court condoned the illegal act of demolition of the mosque and facilitated the construction of the temple at the site where the mosque stood. By way of indemnification, the Court ordered the Government to provide an alternative site for construction of a new mosque. Even this reconciliatory judgment, which is constitutionally dissatisfying, was fair enough to acknowledge the historical and political significance of the Act of 1991.

The Court said that the Act is “intrinsically related to the obligations of a secular state” and “reflects the commitment of India to the equality of all religions”. The Court explained that the “Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future”. Sadly, it is in clear negation of this part of the judgment, that in the Gyanvapi Mosque Committee’s case (2023), the Court permitted a survey in the mosque. Thus, even the legally sustainable findings in an otherwise unsecular judgment were negated by the Court itself, at a crucial point of time.

A lack of judicial will

During the Sambhal case hearing, the Supreme Court was alerted about the orchestrated political move to breach parliamentary law in different parts of the country. The petitioner had stated that several civil suits are pending in different trial courts challenging the origins of different mosques, which are impermissible. Thus, the top court had an opportunity to decide on the validity of the Act and to adjudicate the matter finally along with the Sambhal case. It only needed to reiterate what the larger Bench judgment in the Ayodhya case said about the Places of Worship Act. This required an element of judicial will. The special Bench hearing on the validity of the Act offers another opportunity for the Court to correct its own mistakes.

Kaleeswaram Raj is a lawyer at the Supreme Court of India