Hindus and Muslims must abandon their rigid positions on disputed places of worship

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Simt-e-Kashi se chala janib-e-Mathura baadal – from Kashi the cloud advanced towards Mathura – are the deeply devotional words with which an Urdu writer of the recent past, Mohsin Kakorvi, began his poetic eulogy of the Prophet Muhammad . Long before him, the uncrowned king of Urdu poetry of all time Asadullah Khan Ghalib visited the holy city then known as Benares and wrote a poem in Persian about its spiritual greatness. Titled Charagh-e-Dair (Light of the Temple), the poem described the city as “jannat-e-khurram” (blessed paradise) and “firdaus-e-mamur” (exalted heaven). Freedom fighter Hasrat Mohani once visited Mathura on Janmashtami day and pleaded with Lord Krishna: “Hasrat ki bhi qubool ho Mathura mein haziri, suntey hain aashiqon pe tumhara karam hai aaj” (Also accept my pilgrimage in Mathura, I hear that you are exceptionally kind to the faithful today). More recently, Anwar Jalalpuri translated the Srimad Bhagwad Gita into Urdu, with eminently readable reverence, under the title “Naghma-e-Ilm-o-Amal” (hymnody of wisdom and virtue). Unfortunately, these tributes to spiritual figures and holy places in India have fallen into oblivion. The masses only remember what a despotic Muslim ruler of the medieval age supposedly did to some ancient shrines in these holy cities.

Based on the realities on the ground in the country, Muslim citizens cannot continue to sail against the tide. There is no point in loudly invoking the provisions of the nation’s supposedly secular Constitution. This quasi-secular charter of governance adopted more than seven decades ago includes several religious concessions for selected communities and leaves ample room for their reasonable expansion. Time and time again it has been amended – well over 100 amendments in 70 years – and leaves the door open for further changes. Conceived by first-generation nationalists, this status of governance cannot be seen today as a sacrosanct rulebook, binding in perpetuity on all future generations. No jurisprudential discourse on the interpretation of laws can perhaps dissuade today’s nationalists from reading the provisions according to their ideology.

The Places of Worship (Special Provisions) Act 1991, as parliamentary legislation, has even a lower status. However, in the Ayodhya Temple case adjudicated in 2019 by a five-judge bench of the Supreme Court, it was cast as law within the parameters of the inviolable basic structure of the Constitution. This doctrine of constitutional jurisprudence was established by a bench of 11 judges of the court half a century ago. It remains to be seen to what extent this doctrine and its possible dimensions can be preserved by the Supreme Court in the current circumstances.

What then is the output? The solution indeed lies in the thought and conduct of – to use the preliminary terminology of the Constitution – “We the people of India” who together constitute this great nation. It is up to us to join hands to preserve peace in our beloved nation, whatever the cost. Religious freedom here has its own limits for everyone, whether a particular minority or the dominant majority. Stubbornness and fanaticism on both sides will get us nowhere. If a minority sticks strictly to its demands on religious grounds, the ruling majority cannot be expected to lag behind. The two must together find a viable roadmap for national peace. On the sacred ground of India there are millions of old and new temples, mosques, churches and gurdwaras. In such a country, the eternal fights for a few chosen shrines located close to each other are irrational and indefensible. An amicable settlement of these disputes in the interest of peace in the country – even if it is not absolutely fair to all factions, it will not be an inadmissible bargain for them.

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The judiciary of a predominantly non-Muslim country cannot always be expected to protect the religious sentiments of minorities by adhering irreproachably to the secular tenor of the Constitution. Balancing competing claims in large-scale religious disputes and dispelling even remote risks of perpetual friction in society are among the constitutional obligations of the judiciary. Glimpses of the Supreme Court’s concerns and constraints in this regard can be seen in a number of its past decisions. In an old case, the High Court of Lahore had held that “the idea that once consecrated a mosque always remains a place of worship as a mosque is not the Mohammedan law of India as approved by Indian courts” – and the observation was later endorsed by the Privy Council in the Masjid Shahidganj case of 1940. Affirming this in Ismail Faruqui (1995), the Supreme Court even added that the mosque is an essential part of the practice of the religion of Islam” — and later summarily rejected a plea to omit those words from the judgment. And then, above all, there is the 2019 Constitutional Court decision in the Ayodhya dispute.

If the Kashi-Mathura disputes are ultimately adjudicated by the highest court in the land, whatever decision it makes in the interest of peace and harmony should raise no eyebrows. Hopefully the court will order that the necessary measures be taken to not allow the fire to grow worse and engulf other places of worship – of any community and anywhere in the country – and certainly never at any of the national heritage sites. Strict measures must also be devised to curb the now gratuitous pastime of denigrating the Muslim religion and throwing mud at their much revered Prophet.

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As for Muslims, they must remember the exclamation of the Prophet Muhammad, recorded in authentic collections of his sayings, that he smelled “areej-ul-ruhaniyah” (scent of spirituality) coming from India . It is the sacred obligation of the Muslim rulers of the country not to let it turn into a dar-ul-harb (abode of hostility) by adopting a confrontational attitude. They must ensure, whatever the cost, that our homeland remains the dar-ul-aman (abode of peace) that it has been until now under Islamic theories of statecraft. .

This column first appeared in the print edition of May 28, 2022 under the title “We the people”. The author is a professor of law and a former member of the Law Commission of India

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