The Bhoomi Pujan for the proposed Shri Ram Temple in Ayodhya is scheduled to take place in five days, marking the culmination of a five-century old indigenous movement to reclaim a site which is of both religious and civilizational importance. In all the years that the issue has been hotly debated in independent Bharat, it has been typically approached through the lens of “communal politics”, especially by those who have believed and continue to believe that the reconstruction of the Shri Ram Temple would cause fissures in the secular fabric of Bharat, or in their words “the idea of India”. Unfortunately, the issue has either never been adequately understood or perhaps clearly articulated from the perspective of indigeneity and through the framework of decoloniality in most circles which have an opinion on the issue and its history.
In fact, those who cite considerations of secularism and social harmony to countenance their opposition to the construction of the Temple at the hitherto disputed site, have rarely attempted to understand the issue from the perspective of decoloniality. Interestingly, such opposition has mostly come from colonialized elites and those who hold them in high regard, which pits them against the native who continues to believe in and practice her tradition despite lacking in suave and politically correct representation of her cause. Seldom has one come across a layered perspective from the opponents of the Temple which strikes a balance between the rights of adherents of faiths which are indigenous to the civilization and the legitimate interest in preserving communal harmony. Instead, invariably the approach has been to either question the very legitimacy of the indigenous claimants which is a textbook example of coloniality, or to adopt a patronizing approach towards them which categorically expects them to sacrifice their beliefs and rights at the altar of a false and uneasy peace even if their claims are supported by history. In both instances, it is a case of “talking down” to the native.
The stark irony in the attitude of the colonialized opponents of the Temple is the convenience in their application of moral standards and use of history. While colonial interpretations of indigenous sources of history are typically treated as reliable to address issues relating to caste to further the goal of social justice which is again defined unilaterally by the elites, sources of history which attest to the existence of indigenous religious sites and their occupation, are rejected as unreliable, apocryphal and even fabricated. The expedient reliance on or rejection of indigenous epistemology and voices depending on what fits the worldview and narrative of the colonialized elites has been the story of the better part of independent India, which negates the idea of Bharat. Unfortunately, such an attitude is not limited to thought or expression of thought, but has also translated to legislative action and judicial treatment of indigenous rights and expectations.
The Places of Worship Act 1991, aptly acronymized as PoW, is one such example of a manifestly unjust legislation passed by a colonialized State apparatus against the fundamental rights of adherents of indigenous faith systems. The statute is designed, as its Preamble states, to “prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947…”. This object is further codified in Sections 3 and 4 of the Act subject to certain exceptions identified in Section 4. Broadly speaking, this legislation stands in the way of reclamation of religious sites of one community which, it believes, are occupied by another. While the statute does appear to be neutrally worded on the face if it, the backdrop of its passing and the exception it carves out make it abundantly clear that it forcibly forecloses the fundamental rights of indigenous communities at the altar of “secularism”. The only exception to the application of the statute is expressly identified in Section 5, namely the hitherto pending legal dispute surrounding the ownership of the Shri Ramjanmabhoomi in Ayodhya, which ultimately resulted in a final verdict dated November 9, 2019 of the Supreme Court in favour of the proponents of the Temple after decades of protracted legal battles.
However, in the said verdict, for some reason the Supreme Court deemed it fit to discuss the provisions of the PoW Act despite the non-application of the Act to the Shri Ramjanmabhoomi dispute. In fact, the Court has taken note of this legislative fact in Paragraph 80 of its judgement. Clearly, the legal consequence of the exception under Section 5 was to leave the then pending legal proceedings with respect to the site in Ayodhya untouched and uninfluenced by the express provisions of the PoW Act or its purported “secular” import. In other words, there was no need for the Supreme Court to discuss the Act in the context of the Shri Ramjanmabhoomi case since it was meant to be adjudicated on the basis of established legal principles which apply to property disputes. And yet, the Court discussed the Act in over ten pages with the central thrust being the Constitution’s commitment to “secularism”.
This author has demonstrated elsewhere that the Court’s discussion of the statute and principles of secularism were superfluous to the Shri Ramjanmbhoomi dispute and therefore lack any precedential value. This naturally takes us to the question of the intent behind the Court’s discussion of the PoW Act and its purpose, because a Court of law is not an academic forum and it is not expected to answer questions which do not arise before it for its adjudication.
Perhaps, it could be argued that the intent behind the Court’s discussion was to dissuade any future constitutional challenge to the PoW Act given the impediment it poses to a just and legal reversion of occupied religious sites which belong to indigenous faiths and their adherents. If so, would it not be fair and reasonable to conclude that coloniality has made its presence felt even in recognition and enforcement of valid legal and fundamental rights? Simply put, the embargo under the PoW Act on one’s exercise of rights to reclaim one’s place of worship is directly at loggerheads with rights guaranteed under Articles 25 and 26. Even if a lone individual asserts the right of reclamation and the rest of the community has either forgiven, or worse, forgotten, no canon of secularism or principle of fairness or justice in any civilized jurisdiction can mandate that an individual or a community must sacrifice her or its right to legally reclaim the nerve centers of civilizational identity.
At the very least, members of the community must have the right to prove their case in a Court of law. To deprive that legal remedy through a legislation which was passed without any consultation with members of affected indigenous communities, is to add insult to injury. Decoloniality demands that no one other than a victim has the right to forgive on behalf of the victim, or presume that the victim has forgiven or forgotten. To do otherwise is to be insensitive to historical injustice. Since the Apex Court did not have the occasion to deal with any of these aspects, nor has it heard the parties directly aggrieved by the PoW Act, none of the observations of the Court on the intent behind the legislation and its significance to the Constitution’s commitment to secularism has any real legal value. Therefore, if the intention behind the Court’s exercise was to grant its imprimatur to the Act’s Constitutional vires, it does not even pass muster applying the first principles of law. Clearly, the PoW Act remains as vulnerable to a constitutional challenge as it was before the Ayodhya verdict, and is waiting to be struck down or better, repealed by the Legislature.
Finally, in the backdrop of the ongoing movement against coloniality in various parts of the world, it must not be forgotten that both the Indian Constitution and decoloniality put a premium on social justice and there can be no social justice at the expense of the truth, nor is lasting peace possible until the truth is demonstrably established, acknowledged and accounted for.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.
