Interview

"Accommodation is very important in a plural society": Salman Khurshid

Muslims in Tirupati perform Annadanam (a tradition of offering free food) at the Panchamukha Anjaneya temple (in the backdrop) on November 10, 2019, commemorating Milad-un-Nabi. The event, in which BJP leaders also participated, was seen as a symbol of communal harmony a day after the Ayodhya verdict. Photo: K.V. Poornachandra Kumar

The Muslim reaction to the Supreme Court judgment on the long pending Ayodhya dispute has been subdued, with very few wishing to challenge the verdict. Senior Congress leader, former Minister of External Affairs and Senior Advocate, Supreme Court of India, Salman Khurshid explains to Smita Gupta, Senior Fellow, The Hindu Centre for Politics and Public Policy, that this is because a majority of Muslims are more concerned about more basic issues of security, education, and jobs. The apex court, he stresses, has delivered the best possible verdict, and that Muslims must now build a mosque on the land given to them in Ayodhya if they don't want the issue to continue to be politicised by the Bharatiya Janata Party (BJP). Acknowledging that Muslims are going through a tough time under a majoritarian government, he says the community should look at the positives in the Ayodhya judgment in which the “Judges have decided 99 per cent against the Hindu side, technically”, and close the door on any misadventure in Mathura and Kashi. The Congress, he points out, needs to do some introspection on the political situation that it finds itself in and its ambivalence on minorities. Excerpts:

The All India Muslim Personal Law Board (AIMPLB) has decided to file a review petition in the Supreme Court against the Ayodhya verdict. How do you respond to that?

[Before the judgment] people said we will abide by and respect the Supreme Court verdict—it didn't come with any qualification—and now to say that we aren't entirely happy with the judgment, is out of sync with what was said earlier not just by the Personal Law Board but also by prominent individuals, political parties, activist groups. To now say that we have a right to file a review, is postponing the inevitable and taking away the positive element that the judgment should have thrown up.

They have a point of view and a legal right, of course. My own understanding is that a microscopic number of reviews are allowed. There will be no arguments, and it will be done by circulation among judges; in this case, it will be done by circulation among four judges because the fifth judge—the Chief Justice [when the verdict was delivered]—has since retired. Would it be right for four judges to say something that may go against the Chief Justice’s view when he was party to it? It’s very unlikely. Knowing how review petitions are treated, it seems very, very unlikely that it will be changed.

But by way of a protest?

Why are they protesting when they had said they will accept the judgment? Nobody had a choice in this country on accepting this Supreme Court judgment, right? When you said positively that you will accept the judgment, surely you were saying something more than just accepting the law that you have to accept the judgment. And after saying that, frankly, it does not make sense to qualify it and say that we would have accepted it if it had gone one way, but we can’t accept it if it goes another way, and therefore, we are doing a symbolic protest.

The fact is that there is neither huge celebration on the one side, nor huge disappointment on the other. There may be some elation on the one side and some disappointment on the other side.

I take your point that Muslims had said that they would accept the judgment, but in the judgment itself there appears to be a mismatch between the facts stated in it and the verdict.

Maybe so, but whichever way you look at it, even if the Court had decided somewhat differently, the result would have been the same. The Court would have felt that using Article 1421 should help give a result that will end this dispute.

What is the contrary point that they could have decided upon? In the middle of a huge tract of land, something like 67 acres, on about half of the 2.77 acres there would be a mosque, and all around it a temple? Would that be very sensible? This is something that people themselves should have negotiated and said, if this is the optimal that we can get, let’s get out and do something more expansive and more wholesome. Even if a technical point can be driven home through this mound of information that has been used as evidence for the judgment, I don’t think the result would have been radically different.

However, once the Court accepts that the idol was sneaked in, says that the destruction of the mosque was a criminal act, and acknowledges that there is no confirmation that a temple was destroyed to build the mosque, surely, the disputed land should have been given to build a mosque.

You mean that little bit …

… no. The entire disputed land

But the Muslims had already conceded that the chabutara [a raised platform] and the outer courtyard had been used for [Hindu] prayers —that was a concession by Muslims, not something the Court found. So all that the Court could have said is, absolutely mathematically, the inner courtyard has to remain where it is. But it would not have solved the problem. It would not have helped Muslims build a substantive mosque, because the outer courtyard would not have been part of it.

Why was Article 142 used and how often is it used?

It’s done all the time. While deciding a case, it is not always possible to give a perfect result that makes everybody happy or one that will not create further disputes. Some people say that you can’t use Article 142 specifically against the law of the land. However, Article 142 is not against the law of the land. It qualifies the law of the land, applies it in a way that it creates a sense of justice on all sides.  Sometimes judges disagree on when it should be used. But I think there is a broad understanding that where you want complete justice, this is an ideal provision and we should rely on it. Judges have decided 99 per cent against the Hindu side, if you [look at it] technically …

… on the factual side but not on the verdict?

Verdict? Should the Court have said, now go and fight for another 50 years? That’s the problem. Maybe, this is not ideal, maybe, but we have got to trust these judges who have put in so much hard work and finally decided this. And what is it that they have deprived Muslims of? That you couldn't build the mosque in exactly the same place?

Congress leader and lawyer Salman Khurshid addressing the media at Supreme Court in New Delhi on October 26, 2018. File photo: Sandeep Saxena

 

Maybe this could be a genuine grievance but we have direction that you can build the mosque nearby, that we didn't destroy anything. We have a direction that three times, over the centuries, people have come and tried to interfere with the mosque. We have a direction that the Muslims did not abandon the mosque. All these things have been decided in favour of Muslims. They have also decided that the Hindu God is not an idol, that God is formless, and that it only represents that place where people who want to pay obeisance to God. They have also said that the land where God is born is not a deity by itself. Look at the number of things they have decided against Hindus, but to resolve the problem they have given this little piece of land next to which there would have to be a temple anyway, a piece of land which is possibly less than one acre.

But do you think the fact that the Court has been critical of the Hindu position and that this, in any way, will prevent the Vishwa Hindu Parishad (VHP), the BJP and other Rashtriya Swayamsevak Sangh (RSS) affiliates from making a bid for removing the mosques in Kashi and Mathura?

They can make a bid, but the law is very clear.

Is it clear?

The law is a 100 per cent clear because all the arguments that they would have used for Kashi and Mathura have been debunked [in this judgment].

Lt Gen Zameer Uddin Shah [former Army Vice Chief and former Vice Chancellor, Aligarh Muslim University] has said that he wished that the judgment had provided a deterrent for any similar future action, that the Places of Worship Act had been given more teeth ...

Has he read the 1,000 pages? This judgment was about Ayodhya, not Mathura and Kashi. There’s a law, the Places of Worship Act, and that law applies without any qualification. The Allahabad High Court had added some qualification, and they (the Supreme Court) have said that it is wrong. It is very wrong.

The other point that General Shah made after the judgment came in was that had his advice — that the Muslim community give up its claim in an out of court settlement — been heeded, it would have been better for the community, given everyone knew what the verdict would be. Do you agree?

Maybe, it would have been better, but there was a feeling that you are giving up your rights before adjudication, giving up all that has now been decided in their favour.

So you think that on the whole, it’s a good thing?

On the whole, it’s a good thing.

I don’t understand how a court can pronounce on matters of faith, it should only decide the title suit, the dispute over ownership of the land.

The Court said we are not deciding on faith, but they commented on it. They said this is what faith is, but this issue will not be decided on the basis of faith. You can’t say I am a Hindu, I believe Lord Ram was born here, this is therefore, Ramjanamsthan [and so we should get this land]. We will not go into this argument; we won’t even go into the argument that there was swayambhu2, the presence of Lord Ram. That’s not for us. We are only looking at legal principles, how you establish title. Of course, the only difference is that the law recognises that any deity — not just Ram — has a juristic personality, meaning the deity can file a case, and anyone can file a case against a deity, a juristic personality.

As far as a waqf is concerned, or a mosque, or a graveyard, they don’t have a juristic personality. They have to be represented by a mutwali, a manager. Even a deity is represented by someone, the priest or the manager. But the case is filed in the name of the deity whereas here, the case is filed in the name of the mutwali. Because waqf is land that is dedicated to God, but God is not given a juristic personality in law. Here also, after they explained that the Hindu God is formless, they did not give the Hindu God the juristic personality, only the deity and the representative.

But the temple has been given land on that spot because it is a matter of faith.

No, the judgment does not say so. They have given it not because of a matter of faith, but on grounds of law. Faith is irrelevant.

Do you agree with that?

They could have made it more explicit, but they have made it implicit. The Court could have said this belongs to the Muslims, but we are giving it to the Hindus because the Muslims will not be able to build a good mosque there. Everyone felt that there should not be a system by which you can say that you can take away someone’s mosque and put it somewhere else. The court does not allow that. The Court does not allow the recognition of a barter system.

The Congress, in its manifesto, had said that it would accept the court verdict, but your party’s spokespersons went a bit overboard, welcoming the verdict, singing paeans to Ram.

While welcoming the temple, they should have welcomed the mosque, too, as that is in the judgment, too. You are welcoming the judgment, but the party had never said it would welcome the judgment, only honour and accept the judgment. You can expand on “honour and accept”. The judgment says a Ram Temple is to be built and a mosque is to be built — if you are expanding, you should expand on both. As I understand it, that is the party position. We had discussed it at some fora of the party before the judgment came in and it was very clear that the party would stand by the judgment.

What we would do with the judgment and its subsequent implications, once they became apparent, was that we would deal with those as and when that happened. For instance, today, people are saying we will not build the mosque, and we need to deal with that. We couldn't have anticipated that ahead of the judgment. The bottom-line of the judgment is that a temple will be built here, a mosque will be built here.

But as a political party, you are sending out a certain message.

When you are a political party, you don’t want to send out a message that you don’t agree with your spokespersons. The spokesperson said it that day; it is past and it hasn't created a problem for any of us. We are still saying that we had agreed to accept the judgment and the consequences of that judgment, and we are hoping and praying that everyone will stick to that statement rather than qualifying it.

You wrote an article recently in The Indian Express3 in which you said that the judgment is a reaffirmation of India as a secular society. How do you say that?

[If it was not so], the judgment would have said only temples, no mosques, go mind your business. The Supreme Court has said specifically that everyone has a right to pray in their own manner, everyone has the right to their prayer places, and we must ensure that Muslims get a sense of belonging, a sense of comfort and be able to build a mosque nearby. They didn't say 10 km away. They said it will be within the 67 acres and if that is not possible, then within the city limits of Ayodhya.  If this is not a secular gesture, then what is?

In the same article, you wrote, “If the loss of a mosque is preservation of faith, if the establishment of a temple is an emancipation of faith, we can all join together in celebrating faith in the Constitution.” What do you mean by this?

What I am saying is: Somebody says I have got a temple, so my faith is emancipated from the constraints of law; somebody says, I have lost my mosque, so my faith is destroyed. These are all pseudo-statements. The real thing is that you have a mosque, and you have your temple. It is not given to you because it is a matter of faith; the mosque has not been denied here because someone else’s faith trumps yours. Everybody has got something, it’s an opportunity for us to come together and say: the Constitution will give everyone something so that we can all live happily together.

Many Muslim leaders I spoke to after the verdict came in said that the Supreme Court has delivered a verdict, but not justice.

Justice will be delivered only if everything goes my way ? Why did the Muslims concede that the Hindus have a prayer place [in the disputed area], who asked them to do so? They should not have conceded that …

You think that was key to the verdict?

Right or wrong, that was crucial to the verdict. By saying that we accept that Ayodhya is the land where Lord Ram was born and that the outer courtyard is where Ram is being worshipped for any number of years… This was said by Muslims; this was not found by the Court.

Given the backdrop of the last five-and-a-half years under the BJP — which has been marred by many incidents of violence against Muslims, mob lynching  and so on, the passage of the Triple Talaaq Act, the manner in which Article 370 was abrogated — what message does the Ayodhya verdict give to the Muslim community?

The verdict says the government will act in one way, but the court will not necessarily follow that. The government is committed to majoritarian rule. The Court has said we will not follow that even though some people will say that the Court has followed that, which I think is being a bit tough on the Court. If you don’t follow the majoritarian view, it doesn’t mean you will not show some consideration to the majority.

I asked a senior BJP member why his party did not abrogate Article 370, pass the Triple Talaaq Act or push the Supreme Court to pronounce on Ayodhya in its first term even though it had a majority. He said that the BJP government was not so confident about its grip over the administration and the courts at that time, but now we know we have everything in our grip …  

.. but they [the Court] haven’t done what they [the Government] wanted. They wanted a temple, but they didn't want a mosque. They wanted Ramjanmasthan to be declared a deity — they [the Court] refused. No one knows mathematically whether Ram was born at Ramjanmasthan  — it has a lot to do with faith, but you have not been dictated to by faith. That’s the difference. And that is what the Indian Constitution is. You ban cow slaughter because of faith, but you decide it, keeping faith in mind, but on principles that have nothing to do with faith.

So you think the verdict is not a reflection of the government’s agenda, when it is taken in its entirety?

If you want to say that this is a verdict this government would have dictated, my answer is no. The Court would hardly have said the destruction of the Babri Masjid was a crime, that the placing of the idol was illegal, that it was opened up three times that was wrong: that’s not what the government would have wanted. And look at the reaction — has there been any jubilation?

Are you then saying that this is also a message to Hindus that look, don’t step out of line, the courts won’t stand for it?

Hindus had begun to believe and say, why are they interfering with this place which is so important to us. The Muslims can build their mosque somewhere else. The big mistake the Muslims will make now is not building a mosque where they have been given land. If they build the mosque, it will show that look, we respect you, we left it to you. We can build a mosque anywhere. But if the Muslims say because you don't let us build a mosque here, we won’t build a mosque at the new spot, then that is a confrontationist approach. In certain things, you have a claim, in certain things we have a claim.

If this country said we must be vegetarian, and Muslims said we can’t be, we eat meat, how will the courts decide what kind of a country we are going to be? The courts will say if you can show that vegetarianism is good — you can show that by saying it’s good for your health, it’s good for the economy, we may be able to give it to you, but if you say my faith says we should be vegetarian, we won’t be able to help you. It will help you to the extent that in Ayodhya, in Hardwar, in Varanasi, no meat will be served. To that extent we will help you, but not all over the country.

Then, it is accepted as a principle that you shouldn’t be cruel to animals, but the Muslim method of slaughter — by many people’s standards — would be regarded as cruel, because you kill the animal slowly, halal. The Muslims will say this is our faith; everyone else will say we are against cruelty to animals. Then the court has to decide: they will have to find a via media. You will have to accommodate everybody.

Now, I don't eat beef, but I also don't eat peacocks, but there are Muslims and non-Muslims who go hunting and then make kebabs. But I say I am not interested, because for me, the national bird is important. I don't know how many other Muslims would think like that. On beef, 90 per cent of Muslims agree that if it matters so much to Hindus, let’s not eat it. Accommodation is very important in a plural society — it can’t be one way, it must be two ways but that can’t be mathematical. ..This is the way we need to look at this problem and I believe that, by and large, the judges have looked at it in this manner.

I appreciate what you said that it can’t be mathematical — it’s just we are at that point in history, in time, when we have a majoritarian government which is working to make Muslims increasingly irrelevant, whether it is in terms of representation in our legislatures or even as voters.

Those who are concerned, Muslims and non-Muslims, need to address this, and not say masjid mil jaati to sab kuch theek hain [if we had got the mosque, everything would be alright], and let all this go. It’s more important to address these issues and not worry about the masjid, just take the mosque that has been offered.

What is the Congress doing about these other issues, not the mosque, but increasing alienation of Muslims, their lack of representation. In the last elections even the Congress gave fewer tickets to Muslims. It is playing scared. The BJP is playing the exclusion game up front.

What do we do? We need to analyse this. How do we analyse it?  Everybody in the party got very upset when I said that we haven't even sat down to analyse [the elections and the issue of secularism]. Who is going to make us sit down? There has to be somebody who has to make us all sit down. But the choice really is: can you bypass these issues and hope that things will get back to normal? And my answer is: there is no question of bypassing such issues and returning to normal. We have to take the bull by the horns. Everybody who gained because Congress lost (the Muslim vote), the Samajwadi Party, the Bahujan Samaj Party today have no voice on this judgment, one way or the other..

Why?

Because they never understood Muslims — they only exploited them and took them away from us. Just as the BJP exploited Hindus and took them away from us.

Do you believe that Ayodhya is still a political issue, or is it finished?

If Muslims are sensible, it is finished; if they are not, it’s not. It will rise again. See, if a mosque is built, it’s over. What will they do? Today, you don't build a mosque; you will continue to argue that they have taken away our land.

But that could be an indication that people are upset.

There are about 10 people who are going around talking about it. Muslims are concerned about security, education, livelihood issues. My view is that if you have a mosque, it will act like a palliative; [but if you] don't have a mosque, it will become a sore.

On another note, how are Muslims reacting to the Congress forming a government with the Shiv Sena in Maharashtra?

I met a few Muslims from Maharashtra, and they said, let’s get rid of the BJP. The Sena is the lesser evil. You see this is all an issue of managing perceptions, and managing reality. If we join and then we allow it to fail, and if we join and add sobriety to their conduct, then it would be a success for us. But what is the option? Sit out and do nothing?

If you are going to work with the Shiv Sena, we would begin to find some common ground through a common minimum programme. We would learn to talk to each other, not always cursing each other. They will have to modify their tough positions as far as Marathi manoos is concerned. The difficult things will come if we were to take up issues on which the Sena could not compromise. For instance, if we started action against their people, then it will be like BJP working with Janata Dal. But hopefully, all that is gone. We had governments in the past and not acted against those involved in the [1992] riots. That’s over. Our position is that by digging that up, it won’t help us.

[Smita Gupta, Senior Fellow, The Hindu Centre for Politics and Public Policy, was until recently Associate Editor, The Hindu, New Delhi. In a journalistic career spanning 38 years, she has covered all major political parties, the Prime Minister's Office, the Indian Parliament, and national and State elections, especially in Uttar Pradesh, Bihar, West Bengal and Gujarat.

In 1992-93, she was a Reuter Fellow at Oxford University, U.K. During her year at Oxford, she wrote a long paper on The Emergence of the Far Right in West Europe. She has contributed chapters in academic books on the Bharatiya Janata Party, the politics of Uttar Pradesh, and Parliament. She holds an M.A. degree from Delhi University. She can be contacted at [email protected]]

Endnotes:

1. "The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament…". Return To text.

2. "Self-manifested" or "that is created by its own accord". Return to Text.

3. Khurshid, S. 2019. Ayodhya verdict nudges us to look back at how much we have lost over years of conflict, The Indian Express, November 11. [https://indianexpress.com/article/opinion/columns/ayodhya-verdict-ram-temple-salman-khurshid-6113623/]. Return to Text.

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