The Ayodhya verdict and the burden of responsibility

Of course, the desire for peace and communal harmony is first and foremost in mind when we read the Ayodhya judgment. Of course it is better for both the RSS and Muslim leaders to urge acceptance and restraint. Of course 1992 was a long time ago.

But it is also impossible to read the verdict without feeling a sense of deep unease from an intellectual standpoint. It should be the responsibility of participants in civil discourse to ask some serious questions about what these judges have written.

http://www.outlookindia.com/article.aspx?267309

1. What does it mean that a judge unequivocally declares the site the birthplace of Lord Ram "as per the faith and belief of the Hindus" and talks uncritically of the shapeless and formless "spirit of the divine"?

2. What does it mean that a judge can now rule about whether a building is or is not a real mosque depending on whether it was built "according to the tenets of Islam"?

3. To what extent is it in the authority of 21st-century courts to construct and rule on historical fact, by using evidence from the Archaeological Survey of India and 18th century travel accounts? What is the difference between a judge and a historian?

The debate around law and "secularism" among the intelligentsia has usually revolved around questions of personal law, minority communities, and the impossibility of a neutral state administering impartial judgments without somehow engaging in political, and more importantly religious, give-and-take. In an essay entitled "Living with Secularism," written earlier in the decade as the Ayodhya case was still pending and the Archaeological Survey of India had just begun its investigations, Nivedita Menon pointed to the complicated position of "secularists" having to appeal to "unelected institutions" (the courts) to protect their values. Even if some decision were reached about temples and mosques, the real question was still what we should do about it as a democratic society? In other words, the real site of the struggle was located squarely "in the murky realms of democratic functioning."

Now that the ASI and the court have issued their decisions, we can see that the problem is actually of a different magnitude altogether. I agree, in principle, that such issues cannot be left to technocratic processes that will inevitably reveal their biases and blind spots. But what both the ASI and the court have done is to "enchant" the law and politics to a far greater extent than the opponents of "disenchantment" (like noted critic of Western-style "secularism" Ashis Nandy) could have imagined. It is not so much that the judges seemed to favour the majority over the minority, or legislate as Hindu chauvinists, though that is certainly what they did. By declaring Ram to be a "juristic person," and appealing to the inviolability of religious traditions against legal action around the world (would this have been an issue if we were talking about Jerusalem or Mecca, they asked), the judges have set a very dangerous precedent that must be combatted at once on all fronts - intellectually, legally and politically. It is no longer enough to frame the problem merely in terms of an oppressed and discriminated Muslim minority. The existence of the law, as imperfect and imperfectly secular an instrument as it may be, as a recourse available to the millions of Indian citizens, including Christians, Dalits, atheists, and all those who do not happen to believe that Ram is a juristic person, is now under threat. It may well be that we have to work to push the law back up to that position we thought it could never occupy - above religious doctrines, in that space where neither Ram nor Mohammed has any standing. Failing that, if the genie indeed cannot be put back in the bottle, if the courts absolutely must take it upon themselves to make such sweeping rulings, we should at least preserve the distinction between religious or community interests (what is good for India's Hindus and Muslims) and absolutist matters of faith. If this had been the standard, I think the ruling may have looked different.

For a sadly instructive contrast, here is an excerpt from the Telegraph about the first Ayodhya case:

"In 1885, the Faizabad deputy commissioner refused to let Mahant Raghubar Das build a temple on land adjoining the disputed structure. Das then filed a title suit in a Faizabad court against the secretary of state for India, seeking permission to build a temple on the Chabutra on the outer courtyard of the disputed structure.

His suit was dismissed on the ground that the event (alleged demolition of an original Ram temple in 1528) had occurred over 350 years earlier, and so it was “too late now” to remedy the grievance. “Maintain status quo. Any innovation may cause more harm than any benefit,” the court said."

We have not since, and could never have done, better than this.

The Day I Became an Originalist

The one thing that surprised me about the recent Supreme Court opinion in D.C. vs. Heller was my own thought process in reacting to it. I usually am as firmly against Scalia's reading of the Constitution as anyone, and with respect to this particular opinion I once again vehemently disagree with his conclusion. But reading this piece by Stanley Fish in the New York Times made me realize something quite out of the ordinary had happened:

http://fish.blogs.nytimes.com/2008/07/06/what-did-the-framers-have-in-mind/index.html

I, too, like Justice Stevens, had interpreted the Second Amendment according to the principles of intentionalism, in fact with the kind of rigid textualism I would normally have ridiculed in the wake of my approval of Justice Kennedy's "internationalism" (on display in his famous ruling about the execution of the mentally ill several years ago). But here I am, and here were the liberal justices, too, parsing a sentence instead of thinking of the living Constitution responding to societal needs.

There is a point, however, which neither the Scalia nor the Stevens position seem to make clear enough. I firmly believe that the first clause, "A well regulated Militia, being necessary to the security of a free State," does in fact place restrictions on the second clause. To reason by analogy, if the proposition was, "Taking exams being a necessity to graduate, the right of students to bear pens should not be infringed upon," then this would clearly mean original intent was to secure the right of carrying pens for the purpose of taking exams.

But this does not mean that we could formulate a juridically-derived argument for restricting pens only to exams (or guns to militias). This is a key distinction. The Second Amendment, as written, only secures the right in regard to militias. The remainder of possible circumstances in which citizens use guns are not covered by the language, therefore legislative bodies are free to make any decision with regard to restrictions. This means that D.C. can ban handguns, and Montana can force everyone to carry an UZI (provided that the federal statute is gone, as it tragically is).

This is a far cry from my normal enthusiasm for a strong judiciary as a check on populist demagoguery (think gay marriage for a change), but in this case legislators are doing the right thing and the courts are tying their hands. Call me a flip-flopper.