In an exclusive interview with Clarion India, renowned attorney and constitutional expert talks of the Ayodhya verdict and the state of the nation.
Abdul Bari Masoud | Clarion India
RENOWNED attorney and constitutional expert, Rajeev Dhavan, delves into the Ayodhya verdict, questioning the court’s decision to seemingly align with the government and the RSS. He shares his bewilderment regarding the court’s handling of the case, especially in the midst of the fervour surrounding the inauguration of the Ram Temple at the historic Babri Masjid site in Ayodhya, and the overt political maneuvering entwined with it.
Dhavan, who played a pivotal role as legal counsel for the Muslim parties in the Babri Masjid-Ram Janmabhoomi title dispute case, poured his dedication into the matter, representing all six to seven Muslim parties involved.
Revisiting the Ayodhya decision, issued on November 9, 2019, by a five-judge bench of the Supreme Court, Dhavan pinpointed two critical flaws in the judgment. He expressed uncertainty about the external influences that might have compelled the judges to seemingly “gift” the case to the government and the RSS.
In an exclusive conversation with Abdul Bari Masoud for ClarionIndia, Dhavan expounds on the Ayodhya verdict and offers insights into broader judicial concerns.
As a concerned citizen, he also addresses the alarming state of the nation.
Born on August 4, 1946, Dhavan received his early education in Allahabad and Nainital, pursuing higher studies at the Universities of Allahabad, London, and Cambridge. His impressive academic journey includes degrees in B.A., M.A. (Cambridge), Ph.D. (London), LLB (Allahabad). He was admitted to the London Middle Temple Bar and the Allahabad High Court Bar. In 1994, he earned the distinguished title of Senior Advocate from the Indian Supreme Court. Notably, Dhavan’s initial passion in Allahabad was the theater, where he produced, directed, and performed in both modern and Shakespearean full-length plays.
Here is the full interview:
Q: Given the spectacle that has been created around the opening of the Ram Mandir, we want you to reexamine the Ayodhya verdict as you represented Muslim parties in the Babri Masjid-Ram Janmabhoomi title dispute case.
A: Regarding the Babri Masjid decision, two key points should be noted. Firstly, the Hindu case was filed after 12 years, which means that statute of limitations had expired. The Hindu parties’ main petition should have been dismissed. Secondly, the land was 1,500 square yards, which could have easily accommodated a Ram temple without any need for a legal battle. See, when Gogoi Sahab was the Chief Justice, he assembled everyone (the judges) and put them on the same line. A year ago, Abdul Nazeer Saheb dissented on one issue, but later he did not. Now that he became the governor. The pressure on the judges and their decision to favour the Sangh Parivar and the government remains unclear… This “gift” was not understood because we won the case on the main points, but the issue of limitation, on which the whole case was to be based on the rejection of the main Hindu petition, I don’t know how it got fudged.
Q: You have put your heart and soul into the case, but when the decision came, you must have felt very disappointed.
A: We were aware that it was a Muslim case when the media reached out to us at the time of the ruling. If we did not say anything, Jilani Sahab (Zafaryab Jilani, senior advocate and convener of Babri Masjid Action Committee) did all the interviews and said, look, the case has been done; now we remain silent. It is widely acknowledged that there are instances when the Supreme Court refrains from ruling against the government, which is indeed a matter of deep concern.
Q: Now, regarding the decision given by the five-judge bench, there was no author’s name on it; our present Chief Justice of India, D.Y. Chandrachud says that this was the decision of the court. What do you want to say about his argument?
A: This is a very small thing; sometimes the judge gives it, sometimes everyone gives it, but mostly in this case, it was Chandrachud’s decision. I am very sorry to say, and it was very sad that the CJI toed the government and Sangh Parivar’s line.
Q: The Babri Masjid verdict upheld the Places of Worship Act 1991, emphasising its implementation in both letter and spirit. However, the ongoing proceedings in court have raised concerns. Your views.
A: During the Babri Masjid case, concerns were raised about the potential threat to Kashi and Mathura. The Supreme Court firmly declared the effectiveness of the Places of Worship Act. However, in subsequent cases, the court’s response should have been to firmly reject entertaining such petitions. Unfortunately, the courts lack guts.
Q: The Supreme Court said Babri Masjid demolition was a criminal act, but all the actors are roaming scot-free.
A: Well-known politicians were indeed involved in this unlawful activity, which is undeniably true. Fali Nariman Sahib advised me to focus on the criminal matter during the hearing. From my limited collaboration with the CBI on this case, I observed its compelling nature. It is disappointing that culprits of the crime were not held accountable.
Q: Is it a cause of concern for a democratically elected PM getting involved in religious events such as in the Ram Mandir inauguration?
A: We have an elected dictatorship. The elected dictators are the ones who do whatever comes to their mind, like it is in Turkey or Israel these days, and if Trump comes back, it will be Trump’s elected dictatorship. So much force and so much politics in the name of Babri Masjid and Ayodhya Temple are not good for the country. It is very sad and unfortunate that they (the ruling party) have put politics into what was a matter of religion.
Q: We recently passed three criminal laws without any debate in Parliament. One is the Code of Criminal Procedure Act 1888; the second is the Indian Penal Code Act; and the third is the Indian Evidence Act 1872. As a constitutional expert, how do you see the whole exercise?
A: There was no need to change these laws. If the government had any issues with specific sections, they could have amended them accordingly. Our entire legal system, including the Supreme Court, is based on the old statutes predating these changes. The renaming of Hindi and the inclusion of harsh provisions in the laws was unnecessary. The notion that these changes were anti-colonial is incorrect.
Q: With this amendment, the section numbers of criminal laws were changed, like 302 for murder would be no more. It will up and down the whole record?
A: See, it was not necessary that these things be done by the government. It was completely wrong; it was not meant to be corrected; if the government wanted some provision to be made more stringent, it would have been inserted. It would then have been reviewed by the Supreme Court. The changing of these laws is nothing but dictatorship.
Q: The independence of the judiciary is crucial for the survival of democracy. But there are concerns about the judiciary favouring the government in significant cases like Rafale and Article 370.
A: Our courts are often burdened with heavy workloads, leaving them with limited time for thorough consideration… Chandrachud Sahab’s dissent on the Representation of People Act in matter of Religion was deemed questionable, as were the decisions regarding the Babri Masjid and Article 370 of Jammu and Kashmir.
Q: So, on what basis are you saying that the verdict on Article 370 was wrong?
A: The decision to remove Article 370, which granted J&K special status, had a major flaw. The executive order nullifying the J&K Constitution by reading Article 370 was incorrect, as it did not follow the proper amendment procedure. The 1956 special amendment to the Indian Constitution was repealed without due process. This flaw raises concerns about the legitimacy of the decision.
Q: Noted lawyer Prashant Bhushan talked about “judicious bribery.” Do you see any truth in this allegation?
A: Look, as far as he talks about corruption, I do not know about it, and I am also his lawyer in a contempt case. I think the charge against the judges is not right. The problem is that when the real and important matter comes before the court, there are many instances of it that show that the court cannot live up to expectations.
Q: There is perception in the general public that there is a nexus between judiciary and right-wing elements.
A: Nexus is not about understanding but perfect agreement. Clearly, the Modi government has weakened institutions. The Supreme Court’s strength is questionable.
Q: How do we get out of this situation that you have stated?
A: Now see, if the court does not step up, the press is attacked, and NGOs are attacked. The Enforcement Directorate threatens politicians. We need to launch a campaign. Since I’m not a politician, I can’t say how it will occur.
Q: For the coming general elections, what is your message?
A: I am not a politician, but it is for political parties. What we did when Rajiv Gandhi brought the defamation bill and said about press registration that it would become the Registrar General. The press got after the Bofors issue. It is very important to strengthen the power of the press and NGOs.
Q: But a major section of the media is allegedly bought by the government?
A: Despite the existence of independent media, government pressure persists. Although we have seen it before, the level of pressure that is being applied right now is unprecedented. There is a sense of urgency about this scenario.
Q: You sent me a post in which you stated that the year 2023 was passed as persecution of minorities?
A: Persecution of minorities is not the sole issue; UP is facing a situation resembling Gooda Raj. Minorities will pose greater challenges, and we must advocate for their rights. The media’s attention towards Modi Sahab and Chandrachud Sahab is unclear. Criticisms suggest an overreaching administration accused of tyranny.
