On January 21, 2002 monks, priests and assorted sadhus of the Vishwa Hindu Parishad (VHP) began a long march - the Sant Chetavni Yatra - from Ayodhya. Having journeyed through Uttar Pradesh, they planned to reach Delhi on January 27. Their demand was that the government "remove all obstacles” to the building of a Ram temple at the site of the former Babri Masjid by March 12, 2002.
Questions were raised in Parliament regarding the steps being taken to keep a check on the VHP’s designs. On March 7, 2002, the Minister of State for Home Affairs, I.D. Swami told Parliament “Under Section 7(2) of the Acquisition of Certain area at Ayodhya Act, 1993 and in compliance with the Supreme Court Judgement dated 24.10.1994 in the case of Dr. Ismail Faruqui & others vs. Union of India and others, relating to Ram Janma Bhoomi-Babri Masjid dispute, the Central Government as a statutory receiver is duty bound to maintain status quo as on 7.1.93 in the disputed area. The security arrangements at Ayodhya have been further strengthened and necessary steps taken to maintain law and order.”
That was in 2002. Cut to December, 2018, a similar situation looms. The VHP and its sister organizations have threatened ‘to take law into their own hands’ if the process for construction of the Ram Mandir is not expedited. Only this time, the calls of “Mandir wahinbanaenge”, from those outside government have been met with those of “Ordinance layenge” from those within.
What is an Ordinance?
An Ordinance is a law made by Government without getting it passed by the legislature. Articles 123 and 213 of the Constitution, allow ordinances to be passed by the President or the Governor. This can only be done when the legislature is not in session. Ordinances have the same force as a law made by the legislature. However, they remain in force for six weeks after the legislature reconvenes. The ordinance must then be approved by the legislature in order to become a law.
Pandit Kunzru speaking in the Constituent Assembly was of the opinion that the provision had been provided “to deal with situations where an emergency in the country necessitated urgent action.” The Supreme Court has time and again held that the power to promulgate an Ordinance is essentially a power to be used “to meet an extraordinary situation”. It cannot be allowed to be "perverted to serve political ends".
The Babri masjid dispute
The events leading to the demolition of the Babri Masjid are well known. Soon after the destruction of the mosque (almost 26 years to the day), the union government promulgated an ordinance to acquire the disputed areas. The ordinance was followed by an Act of Parliament. The act was challenged in the Supreme Court.
At the same time, a presidential reference—a constitutional provision under which the President of India can request the Supreme Court to provide its advice on certain matters—was also made. Among other questions, the reference queried the court: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?”
In its 1994 judgment in Ismail Faruqui’s case, the Court by a majority of 3:2 upheld the validity of the law providing for the state’s acquisition of land in the Ram Janma Bhoomi-Babri Masjid Complex. The presidential reference was, however, returned unanswered. Justice SP Bharucha noted, “Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it.”
Under the Supreme Court’s ruling of 1994, the civil suits (from the 1950s and 1960s) disputing title over the land were revived. They were sent back to the Allahabad High Court for adjudication, with directions that the status quo as of Jan. 07, 1993, be maintained. The Central Government was appointed “statutory receiver” of the disputed land till resolution of the dispute. It was directed to maintain status quo of the land, and deliver it to the party found entitled to it, at the end of Court proceedings.
In September, 2010, the Allahabad High Court delivered its verdict in the title suits. The bench declared that there would be a three-way division of the land between the Sunni Waqf Board, the Nirmohi Akhara, and the guardian of the deity “Ram Lalla.” As expected, the verdict didn’t satisfy any party. Appeals were filed before the Supreme Court and are pending adjudication.
In 2011, the Court clarified its status quo orders. It stated that in “the 67.703 acres of acquired land located in various plots detailed in the Schedule to Acquisition or Central Area at Ayodhya Act, 1993, which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumi puja or shila puja, shall be permitted or allowed to take place.”
The illegality of an ordinance
It is not clear what the proposed ordinance will say. However, before passing any law allowing the construction of a temple, the State will also be required to show the existence of “extraordinary circumstances” requiring promulgation of an ordinance. The ordinance itself will have to nullify the provisions of the Acquisition of Certain Area at Ayodhya Act, 1993 and put an end to proceedings before the Supreme Court. The latter course is impermissible.
In the Faruqui case, the Supreme Court had struck down S. 4(3) of the 1993 Act which abated (put an end to) all pending title suits and proceedings. The court ruled that it was unconstitutional to take away a judicial remedy. Thus, any ordinance that will block one side, (the Muslims) from access to adjudication, while perpetuating the status quo as far as demolition is concerned is likely to be held unconstitutional.
The proposed Ordinance will also have to ‘overrule’ the judgment of the Supreme Court (1994) and the Allahabad High Court (2010). It is not difficult to say that such an ordinance will be illegal. Parliament cannot sit in judgment over a decision of the court. In the case of Cauvery Water Disputes Tribunal, a constitution bench of the court held that it was open to change the law in general by changing the basis of a Judgment. However, it was not permissible to ‘set aside an individual decision between parties and thus affect their rights and liabilities alone. The court held that allowing such a course would lead to ‘lawlessness and anarchy.’
The ordinance route is not open and is unlikely to be fruitful in resolving this case. However, a government in its last days, heading into an election year may find it useful to promulgate a patently unconstitutional, but politically convenient ordinance and leave it to the courts to strike down. Such a course is likely to find favour with the vote banks. One can always say: “Look, we passed the ordinance but the courts always come in our way”. This key, however, is unlikely to open the lock on the Ayodhya conundrum.
The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot