Not by ordinance
Mains Paper 3: Indian History
Prelims level: Ayodhya Temple issue
Mains level: Post-independence consolidation and reorganization within the
- There is a clamour by the Rashtriya Swayamsevak Sangh (RSS) and
Sangh Parivar for an ordinance and later a statute (i.e. Act) for building a
Ram temple over the ruins of the Babri Masjid in Ayodhya immediately.
- The supposedly neutral Justice J. Chelameswar, who retired as a
Supreme Court judge earlier this year, joined the fray, saying it was
possible. The ex-justice is learned and bold, but needed to show the
The Centre’s remit
- Any ordinance would have to be passed by the Central government if
the President (as advised by Prime Minister Narendra Modi’s cabinet) “is
satisfied that circumstances exist which render it necessary for him to take
immediate action” to promulgate an such an ordinance, which will cease if it
is negated or lapses.
- If it lapses, re-promulgation can take place. Repeated
re-publication was frowned upon in the D.C. Wadhwa case (1986).
- The alternative is a Private Member’s Bill. Given the conflict of
interest, the Central government is obliged to oppose it, albeit with a
- The State of Uttar Pradesh is bound by its stance in the Allahabad
High Court that it is not interested in the site.
- There is the Places of Worship (Special Provisions) Act of 1991.
In this Act, the cut-off date for freezing the religious character of a
place of worship is August 15, 1947 and all suits regarding their status
- Section 6 prescribes punishment of up to three years or fine or
both if this is violated.
- Section 5 of the Act said: “Nothing contained in this Act shall
apply to the place or place of worship commonly known as Ram Janma
Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to
any suit, appeal or other proceeding relating to the said place or place of
- This, however, does not pave the way for simply repealing the
section, for that would give further protection to the Muslim case.
- Second, we have to turn to the Acquisition of Certain Area at
Ayodhya Act, 1993, which acquired the site to put an end to the litigation,
and vested the property in Central government.
- Third, the Act of 1993 was interpreted in Ismail Faruqui v. Union
of India (1994) so that the property would remain with the Central
government as a “statutory receiver”, a concept invented by the court. The
cessation or abatement of the pending Ayodhya case between the Muslims and
Hindus (Section 4(3)) was set aside by the Supreme Court while unfairly
allowing Hindu worship.
- The court declared: “The best solution in the circumstances, on
revival of suits is, therefore, to maintain status quo as on 7th January,
1993 when the law came into force.” Any action taken now (i.e. 2018 onwards)
would violate this status quo. As the “statutory receiver”, the Central
government has the responsibility to wait for the result of the suit. No
ordinance or statute can sit in appeal on the Ismail Faruqui judgment of
Separation of powers
- There is a well-known principle, emanating from the doctrine of
separation of powers in the Constitution, that the legislative power of
Parliament cannot usurp the judicial power to sit in appeal over the
judicial decision-making – still less where the case is pending as a suit or
- This decision, which was considered earlier, was firmed up on a
tax case Shri Prithvi Cotton Mills (1969) after which there have been dozens
of cases going one way or the other.
- But the legislature can change the basis of the law. It’s more
complicated than you think.
What will a proposed Act or ordinance say?
- The right to adjudicate cannot be taken away as it would be
discriminatory if applied to a particular case to take away a valuable
- The new basis for the law would have to invalidate the Allahabad
High Court judgment of 2010, Ismail Faruqui (1994) and the orders subsequent
to it and then injunct the pendingproceedings in the Supreme Court.
- The justification for this can only be that strident members of
the Hindu majority are impatient to reverse the Allahabad decision which
gives one-third of the land to the Muslims.
- There is also a resistance by the Nirmohi Akhara, which claims the
entire site and does not want to give the Deity its one-third.
- As soon as the ordinance or Act is passed, it will be challenged
in the Supreme Court because it is of national importance and affects the
jurisdiction of the Supreme Court.
- There is a presumption of the constitutional validity of a
statute. Even if no stay is granted, the urgency of the matter may mean an
assurance sought by the court that no precipitous steps would be taken
during these new proceedings.
- There will be counter-clamour, protests, news that India favours
Hindus over Muslims.
- Throughout the world the destruction of the Babri Masjid has
provoked doubts on the capacity of India to be neutral. India has one of the
largest Muslim populations in the world short of 200 million.
- The case against the constitutionality of the new ordinance or Act
will take some time to decide.
- The decision in the Ayodhya case will be delayed further.
A secular state?
- With the rise of an uncompromising fundamentalism, India is faced
with extreme populist demands against minorities and the rule of law.
- The Constitution is secular, but parts of civil society are
- The demand for the state to intervene to allow the Ram temple is
part of an aggressive Hindu fundamentalism which seeks to suborn the state
to its wishes. The state has to remain neutral.
- To yield to a demand of one faith against another not only
condones the destruction of the Masjid, but abandons the very basis of
India’s multi-religious and cultural ethos which it is bound to protect.
- It is the Constitution that has pledged our diverse people
- It is not a plaything still less in the hands of a motivated
majoritarianism that puts ‘India’ to ransom. Muslim fundamentalism is
allegedly terrorists, its violent elements banned.
- Hindu fundamentalism reigns free with its Hindutva, “ghar wapsi”,
cow protection, violence, murders of activists and the Ram temple movement
seeking immediate solution.
Q.1) Solung is a festival of
a) Andhra Pradesh
b) Himachal Pradesh
d) Arunachal Pradesh
Q.1) Can it say that this first appeal to the Supreme Court under the
Code of Civil Procedure will be taken away?
Q.2) Can the Central government as statutory receiver pass such an ordinance or
even table a Bill in Parliament?