In 2005, a seven-judge bench of court ruled complete ban on Cow slaughter in Gujarat famously stating that “the value of dung is much more than even the famous Kohinoor diamond”
By Abdul Bari Masoud
New Delhi: Noted lawyer and senior advocate Rajeev Dhavan alleged that the Supreme Court’s important judgments have paved the way for ‘Hindu-isation’ of India. Dhavan, who fought for the UP’s Central Sunni Waqf Board and other Muslim parties in the Babri Masjid-Ram Janmabhoomi title suit, described the (Ayodhya verdict) judgment as “the oddest” in the history of the Supreme Court.
In an interview with HuffPost India’s Politics Editor, Betwa Sharma, Dahvan said that apex court’s judgments going back to sixties have given a nod to the idea that India was “innately Hindu” and that is now fructifying into an affirmation of “muscular nationalism”.
Dhavan, who undertook the Babri Masjid case as pro bono, felt blessed for fighting the Babri Masjid case and stated that the case was lost on account of technicalities.
“I feel even more blessed that I was able to fight it with courage, craft and conviction. I feel sad that we lost on technicalities, but should this happen again, I will appear again and again.”
On November9, 2019, the Supreme Court had pronounced the final verdict in the title suit case of the Babri Masjid-Ram Mandir and the land on which Babri Masjid stood has been declared to belong to the idol of baby Ram. The verdict had come under sharp scrutiny even former judges of the Supreme Court and jurists observed that it was not based on evidence and logic.
Dhavan had argued the Babri case with feeling which has been regarded as one of the most important legal cases in India’s history.
When he was asked what are the Supreme Court judgments that had led up to the Babri masjid- Ram Mandir verdict? The noted lawyer enlisted four important judgments saying these contributed to ‘Hindu-isation’ of India.
He said the first judgment on this, in his view, was a judgment in 1966 called Yagnapur Das Ji, where Justice (Pralhad Balacharya) Gajendragadkar indicated that everybody is a Hindu. But there are many denominations and sects that say that we are not Hindus. For temple entry, they may be all Hindus, which were the facts of the case, but he said we must take an expansive view of Hindu to cover everybody. It covered everybody (Jains, Buddhists) except Christians and Muslims. This to my mind was the first judgment of expansive Hindu-isation.
The second judgment came in 1995-1996 – argued by Ram Jethmalani — when the Supreme Court said that ‘Hindutva’ is a way of life. A three judge bench decided that you can appeal to your own religion, but not slander their religion. This in practical terms means a Hindu can go on and on about the greatness of Hinduism as long as he does not tell the Christians and the Muslims that their religion is bad.
The 1996 judgment on election appeal – Dr Ramesh Yeshwant Prabhoo versus Shri Prabhkar Kashinath Kunte – was reversed by the Supreme Court in Abhiram Singh versus CD Commachen in 2017.
While the majority (4-3) seized this opportunity to clarify that no appeals to religion is permissible in an election, a minority wrote a dissent which properly interpreted meant that you can always appeal to your own religion.
The next judgment was on the Babri Masjid.
Dhavan observed that the Muslims proved their possession from 1858 because there were land grants by the British. Against the entire evidence it was decided that Hindus were in possession throughout from 1858 even though a judgment of 1886 clearly says Muslims have title and Hindus have a prescriptive right to pray. The Hindu side did not have to prove possession at all. The 1886 judgment clearly said that they were not owners. The (Ayodhya verdict) judgment is the oddest in the history of the Supreme Court.
When further asked that you just mentioned only three cases over four decades ? Dhavan said quipped there is a flow of judgments as the court has always expanded its Hinduism to the extent that it has always wanted to.
The first judgment is for a Mahayana Hinduism. The second one appeals to religion in elections. When you look at the Gujarat riot cases, the Supreme Court showed sympathy, but didn’t exactly support the Muslims except on narrow points of law. When judgments co-opt a movement, you find the judiciary responding to, running away from or running on to muscular nationalism.
That is how a transformation in the country has taken place. Mild at first and then it becomes stronger because of the rath yatra and Babri Masjid and stronger and stronger and stronger until we reach the CAA (Citizenship Amendment Act). So the Hindu fundamentalism was always there but its muscularity has suddenly made it offensive.
Dhavan recalled that former Chief Justice (Ramesh Chandra) Lahoti (2004-2005), just before he retired, was very concerned about cows not being killed. So he wanted to reverse the five judge bench of 1958. The retiring Chief Justice suddenly put cows on the anvil and decided the cow was indeed sacred and we should not kill it. (In 1958, a five-judge bench in Mohd. Hanif Quareshi & Others vs The State Of Bihar, ruled against a complete ban on cow slaughter, confining it to “useless” cows. In 2005, a seven-judge bench in State Of Gujarat vs Mirzapur Moti Kureshi Kassab ruled in favour of a complete ban, famously stating that the “the value of dung is much more than even the famous Kohinoor diamond”).
What was going on in the country was not just Ayodhya. What was going on was that the cow movement, the conversion movement, muscular nationalism was playing out against the minorities at various levels.
In response to a question on Kashmir particularly on the habeas corpus petitions, Dhavan alleged that the Supreme Court was fiddling with procedure while Kashmir was under a state of militarism. He said the e Court should have told the government that this is a serious matter and we are not giving you time to adjourn. File your affidavit in two days. We will decide the matter here.
The court’s response to the petitions against the CAA, he said “At the time when the matter was before the Supreme Court, the Act had not been brought into effect. The Supreme Court could have easily passed an order staying it. That is what happened to defuse the Mandal Crisis.”
It is to be noted that the Supreme Court in October 1990 granted a stay against the V.P. Singh government’s decision implementing the recommendations of the Mandal Commission.