Frontline on the Karnataka crisis

* Even as the Karnataka controversy on defections awaits resolution by a third Judge, I explain why the Speaker's decision, on the face of it, appears bad in law.

* Former Counsel to the Liberhan Commission, Anupam Gupta explains in this interview, some of the legal conundrums in the Lucknow Bench's judgment.

*Delhi High Court's judgment legitimises sting operations to expose corruption - not just by journalists, but by any citizen - a point missed by many. Read my article on this here.

*Other contents may be accessed here.

Questioning “Faith” in the Ram Janmabhumi Judgment?

Continuing our coverage on the Ayodhya developments, we feature a guest post by Bhupender Yadav and Vikramjit Banerjee, who are advocates in the Supreme Court.

There is a continuous refrain from the secular intelligentsia everyday, that the Judgment of the Allahabad High Court in the Ram Mandir matter is based on faith, and, since faith has no place in law, therefore the judgment is invalid. The question is that, is it correct that the Court has “wrongly” considered faith as the basis of the judgment in the present case? To answer that question it is important to look at the prayers in the plaints of Suit No. 4 of the Sunni Waqf Board and Suit No.5 filed by the “deities” Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi.

The first and basic prayer of the Sunni Waqf Board in it’s suit is:
“ (a) Declaration to the effect that the property indicated by letters ABCD in the sketch map attached to the plaint is a public Mosque commonly known as “Babari Masjid” and that the land adjoining the Mosque shown in the sketch Map by letters EFGH is a public Muslim graveyard as specified in para 2 of the plaint may be decreed
(b) That in case in the opinion of the Court delivery of possession is deemed to be proper remedy, a decree of delivery of possession of the Mosque and graveyard in suit by removal of the idols and other articles which the Hindus may have placed in the Mosque as objects of worship be passed in the plaintiff’s favour, against the defendants."

It is important to note that what was being asked for is not a title to the land , but a declaration that the site was a “Public Mosque”. This would mean an essential decision as to whether the site can be called a “Public Mosque” at all . This means a conclusion will have to be drawn as to whether the said site could be called a Public Mosque in Islamic Law. Now, there are certain facts which have to be adjudicated in Islamic Law for a place to be called a Public Mosque and one of them is whether the Muslims ever treated this place as a public mosque, another, whether Islamic Law allows construction of mosques on places of worship of others and third, what is the status of a supposed Mosque which is presently a place of worship of another religion (all questions of faith ). It is also important to bear in mind that though it is being bandied about today that the dispute was a “title” suit , but what is most important to note is that the Sunni Waqf Board had never ever sought declaration that the “title” of the land be declared in their favour but had asked it to be declared a “Public Mosque” , with all it’s consequent conditions, which could not be decided without going into the “faith” of Muslims . The same “faith” which is a secular dirty word today.

At least in the Suit No. 5 filed by Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi title to the land was sought for:

“ (a) A declaration that the entire premises of Sri Ram Janma Bhumi at Ayodhya as described and delineated in Annexures I , II and III belong to the plaintiff deities;
(b) A perpetual injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any obstruction in the construction of the new temple building at Sri Ram Janmabhumi Ayodhya”

The above claim of the “deities” (who have the right to sue through their next friend under Hindu Law) was sought on the ground that Hindus have always treated the site as “sacred” and the birthplace of Lord Rama and held the place as Asthan Sri Ram Janmabhumi , and therefore a deity in itself, on which Sri Ram Lalla presided ( therefore Sri Ram Lalla “Virajman”) as an idol and being another deity. It was also contended that there was an existing temple which was broken to construct a Mosque and such was invalid since in Hindu Law once a deity (being the Asthan Sri Ram Janmabhumi in the present case ) always a deity as the Supreme Court itself has held in Mahant Ram Swarup vs. S.P. Sahi , that even if the idol is broken , or lost or stolen , the moment it is replaced by another idol and duly consecrated it takes the sanctity of the old. In addition after the due consecration of the idol of Ram Lalla ( the other deity) in accordance with Hindu rites, the rights of all parties if any stood extinguished as the right of the original deity stood revived.

It is important to clarify here that “deity” does not mean only an “idol” , which seems to be a broader misconception being held by the so called “secular” brigade. An idol is not a precondition for a “deity” to exist in Hindu theology and jurisprudence, the deity can in the words of the Supreme Court in Ram Janki Deity v. State of Bihar be shapeless, formless like Agni or Vayu , or even a simple piece of wood. The Supreme Court in the same case said that as long as the public feel there is a “divine presence” any place can be considered a temple.

The Court therefore considering the statements made in various plaints and written statements framed the following issues amongst various others on other points , which were to be decided finally by the Court:

(i) Issue No. 14:- Have the Hindus been worshipping the place in dispute as Sri Rama Janma Bhumi or Janam Asthan and have been visiting it as a sacred place of pilgrimage as of right since times immemorial? If so, its effect?

(ii) Issue No. 19(c):- Whether any portion of the property in suit was used as a place of worship by the Hindus immediately prior to the construction of the building in question? If the finding is in the affirmative, whether no Mosque could come into existence in view of the Islamic tenets, at the place in dispute?

Necessarily, in course of the proceedings it had to be proved that Hindus have always treated the site as “sacred” and as the birthplace of Lord Rama. The deities did not have to prove that Lord Rama was born there as the claims of the deities in the plaint was not that Lord Rama was born there and therefore it is sacred, but, that the deities' devotees “believed” that Lord Rama was born there and it is “ Rama Janmasthan” and therefore it is “sacred” to them and has always been treated as a deity.

The Courts have previously held that the way to prove the existence of a deity which is claimed to have been existent from time immemorial is through the fact that the deity was recognized to be one and a representative of the divine form by the people who treated it as part of the divine . The fact of the sanctity of the site was also proved by voluminous contemporaneous documentary evidence of the above mentioned Imperial Gazetteers and travelogues of foreign travelers and who were traveling in the area and who recorded Hindu worship in the site , even , after the Mosque was constructed and the ASI Report which showed that even previous to the supposed Mosque there was an existent Hindu temple. Interestingly this is the point where everyone is attempting to rely on to show that the decision was one based on “faith” and not on law , when such was clearly a question of evidence and for which evidence was lead by both parties to show whether the Hindus did consider the site sacred.

Historians appeared as expert witnesses from both sides to make the point. They were cross examined in detail . Documentary evidences were also produced and questions were put to the witnesses who were produced from both sides as experts on the point. Eminent historians who hold forth on the subject did not put themselves up as witnesses and therefore could not be examined about their views in Court.

Based on the said issues, evidence was lead -- that is documents were disclosed by all plaintiffs and defendants to the suit, and witnesses were produced by all the parties and cross examined by other parties to the proceedings. After the evidence had been disclosed, then arguments were commenced by the parties. This process nearly took nearly 16 years after the directions of the Supreme Court in the Ismael Faruqui Case and subsequent framing of issues by the Allahabad High Court. The great commentators of today were conspicuous by their absence during all this time.

Under the above circumstances it is apparent that the said conclusions directly arise out of the issues framed in the suit and are not a fanciful exploration of “faith” as is being attempted to be made out by the secular chorus. What requires repetition is that the present case being a civil suit and not a “Government Commission of Enquiry” or a “People’s Tribunal” had to be argued only based on the statements stated in the plaints and the written. It is a fundamental proposition of civil procedure that no party can go beyond the assertions in the plaints and written statements filed by the parties in court in the case and all evidence and arguments has to be restricted to proving the facts stated in the plaint and the written statements only. A plaint and a written statement is the basis of any case , and , they are of utmost importance, as facts stated in them cannot be changed later for better or for worse.

There has been strong criticism of the present judgment from various quarters, a lot of which is unfounded and superficial. It is important in our view that for the formulation of any criticism of the present judgment the principles of civil litigation be kept in mind, otherwise we would be in danger of fundamentally misunderstanding the principle foundation on which the present case was decided.

Karnataka High Court's split decision on Tenth Schedule

Today's Karnataka High Court's split decision on the Assembly Speaker's power to disqualify 11 MLAs on the ground of defection can be read here.

Law, Sensex, and Ayodhya

Here is another interesting take on the Ram Janmabhoomi Babri Masjid decision by Sunil Khilnani. He argues that matters such as Ayodhya, which raise fundamental questions about our national character and identity, cannot be resolved by judicial verdicts, much less by our fast-food faith in the power of markets. Only politics can supply a mature and long-term solution to them.

Developments in Indian Competition Law

In 2009, India repealed its 40 year old Monopolies and Restrictive Trade Practices (MRTP) Act, and brought into force most sections of the 2002 Competition Act. In a recent article in the Economic and Political Weekly (subscription required), Aditya Bhattacharjea, a professor of economics at the Delhi School of Economics discusses both the old and the new laws. After a brief introduction to the basic economic principles underlying modern competition (antitrust) law, he reviews India's experience with the MRTP Act, arguing that the way it was structured, amended, interpreted and enforced ensured that it could not serve as a competition law. Consequently, it did not bequeath a body of expertise that could help in the implementation of its successor, the Competition Act, which is very demanding in terms of economic analysis. He then discusses the strengths and weaknesses of the new law, the reasons for its delayed implementation, and the first few decisions of the Competition Commission of India (CCI).

Although in many respects the new regime marks an improvement relative to the MRTP Act and MRTP Commission, there are also several potentially serious problems. In particular, “contribution to economic development” may be employed in deciding on mergers or abuse of dominance; provisions on anti-competitive agreements may be interpreted to allow a rule of reason even for cartels; and those on abuse of dominance give the CCI authority to take action even in cases where there is no adverse effect on competition. The sections governing merger review remain very controversial, and had not been brought into force as of September 2010. The CCI and the tribunal set up to hear appeals from its decisions have been saddled with a huge backlog of unresolved cases and investigations that were pending with the MRTP Commission. Finally, the long delay (from 2003 to 2009) in bringing the Act into force has resulted in the departure from the CCI of all the staff members who had acquired some familiarity with competition analysis. A slightly revised version of the article is available at SSRN.

More Musings on Ayodhya

Continuing our coverage of the Ayodhya decision, we are pleased to feature this guest post by Mathew John.

Reading Aditya's affirmation of the Ayodhya judgement I felt I must alsowade in with a few more preliminary comments. Opinions on the judgement are divided - Some like Rajeev Dhavan dismiss it as the summary justiceof a panchayat. Others like Aditya and Pratap Mehta think that it might contain remarkable judicial statesmanship. Only time will tell who isright but given the sheer size of this monster of a judgement this isnot likely to be any time soon. In the meanwhile nervous that much ofwhat I say might be proved wrong by closer reading of the judgement, I want to think aloud about how we should approach and read this judgement.

Reading through the case summaries it does seem that the courts havebrokered a remarkable compromise by converting a suit claimingdeclaratory relief into a partition suit and divided the contested property by metes and bounds. I start by focusing on what Aditya terms'the elevation of easementary rights into that of property'. I think this puts in perspective the kind of shift that the legal process haswrought in spaces like the Babri Masjid-Janmasthan complex.

Irrespective of the supposed depredations of Babur's general, it notdisputed that the space was being resorted to by different parties.However the trial court deciding the dispute in 1885 seemed to think that granting the Mahant Raghubar Das any right to build a temple on the structure "would amount to laying down foundation for riot between the two communities." (p. 19 Khan J.). However this seems to fly in the faceo f the facts because the various communities did occupy the space together without breaking out into riots. It is true that there wered isputes, its is true that these disputes also resulted in violence anddeath but by granting the Muslim Mutavali exclusive property rights overthe property the court's resolution of the dispute in 1885 seems to havebeen premised on the /absolute separation /of the communities rather than to face up to an immediate problem of conflict. I wonder if thepresent decision reaffirms the same kinds of resolution albeit in changed circumstances?

Perhaps the present resolution was the best that the judges could have brokered. Perhaps the situation is so vitiated that the communities cannot occupy the space unless their rights are clearly marked, separated and partitioned. However this then has to be done by preserving the integrity of the law. A friend of mine had asked if would it be possible to have arrived at the present resolution if the mosque was not pulled down? I suspect not, though the other parties wouldperhaps have been able to assert their right of use over the property. Therefore, I'm wondering if it is possible to think of a resolution of thedispute by granting the superior title of the Mutavali, which he presumably did have until 1949, while yet protecting the broader rights of use of the other claimaints? In this way the integrity of law(adverse possession in favour of the caretaker of the mosque) is protected while at the same time protecting the easmentary and other user rights that parties have in the property.

On another note there are many obvious problems with the introduction of the gods into history. I raise one aspect of this problem which arises from Justice Sharma's finding that the disputed site is the birthplace of Lord Ram. I am not at all clear why the question of birthplace wasrelevant to the case but it is important to note in this connection thatit is not 'Lord Ram' (who can manifest in many forms) but a particular diety 'Bhagwan Sri Ram Lala Virajman' who was a party to this dispute. Ido not know much about the nuances of the juristic personality of idolsbut it is an interesting oddity of Anglo-Hindu jurisprudence (debutter property law if I am not mistaken) that dieties are considered perpetual minors and represented in courts by their guardians, shebaits, nextsfriends and so on. However in all these cases it is not the divineentity 'Lord Ram' in whose name property is endowed but a particular idol represented by his next friend. I wonder if this distinction is reflected in the judgement even though the summary seems to suggest otherwise?

Lastly, it is popularly considered unusual and objectionable to have judges dabbling in theological matters but in the recent past scholars (like for instance Pratap Mehta "On the Possibility of Religious Pluralism,") have increasingly begun to point out that even in contemporary secular states the law and the courts make extensive claims on religion, even to the point of deciding what is and is not religion. In this context the task of scholars is to fathom the structure of thedemands that politics makes on religion and not only to raise normative objections to such demands. Perhaps this judgement will tell us more about the manner in which our law and politics makes claims on our religious traditions.

Summary of the Babri Masjid -Ram Janm Bhoomi Decision

My summary of all the opinions in the Babri Masjid decision can be found here. The judgment poses a fascinating array of questions. There has already been strident criticism as well as cautious praise for the decision, much of which has been noted on this blog in the past few days. This note attempts to give a broad overview of the facts of the case as presented to the Court, the issues raised by the parties and the Court's decision thereon. At this stage, the note does not contain any analysis or critique; merely a summary of the voluminous decision.

Please note: I prepared this summary as part of my Research Assistantship with Prof. Ratna Kapur, who is a Visiting Professor at Yale Law School this Fall. I have her permission to post the note online.