{"id":977,"date":"2010-10-16T11:05:52","date_gmt":"2010-10-16T05:35:52","guid":{"rendered":"http:\/\/mohamediqbalp.wordpress.com\/2010\/10\/16\/first-the-masjid-disappears-then-the-law\/"},"modified":"2010-10-16T11:05:52","modified_gmt":"2010-10-16T05:35:52","slug":"first-the-masjid-disappears-then-the-law","status":"publish","type":"post","link":"https:\/\/venusimportexport.com\/wordpress\/index.php\/2010\/10\/16\/first-the-masjid-disappears-then-the-law\/","title":{"rendered":"First the Masjid disappears, then the law"},"content":{"rendered":"<div class=\"node\">            <\/p>\n<div class=\"submitted\">Submitted by admin4 on 14 October 2010 &#8211; 11:47am<\/div>\n<p>    <\/p>\n<div class=\"taxonomy\">\n<ul class=\"links inline\">\n<li class=\"taxonomy_term_6 first\"><a href=\"http:\/\/twocircles.net\/news\/articles\" rel=\"tag\" title=\"Articles\">Articles<\/a><\/li>\n<li class=\"taxonomy_term_1 last\"><a href=\"http:\/\/twocircles.net\/news\/indian-muslim\" rel=\"tag\" title=\"Indian Muslim\">Indian Muslim<\/a><\/li>\n<\/ul>\n<\/div>\n<p>    <\/p>\n<div class=\"content\">\n<p>By Shafeeq Rehman Mahajir,<\/p>\n<p><\/p>\n<p>In the Ayodhya matter, has the judgement of the Allahabad High Court <br \/>unwittingly taken the law to the ideological right, and conferred <br \/>legitimacy on questionable doctrine of majoritarian supremacy, while at <br \/>the same time succeeding, I cannot say inadvertently or otherwise, in <br \/>concealing it ?  Are the judges of today capable of being seen as <br \/>magicians creating illusions that make settled principles of <br \/>jurisprudence magically disappear ?  The verdict has the distinction of <br \/>leaving us wondering if we are watching an illusion, in effect, though <br \/>obviously such a situation would <em>never<\/em> have been <em>ever<\/em> intended by <em>any<\/em><br \/> Court, to distract the citizens from seeing the truth, the whole truth <br \/>and nothing but the truth.  Why is it said that justice must not only be<br \/> done but it must be seen to be done ?  That is because <em>the message matters as much as the outcome<\/em>.<br \/> In the Ayodhya matter, the judgement of the Allahabad High Court has <br \/>with consummate skill allowed certain established principles of civil <br \/>law to go for a toss, caused the law to morph before the very eyes of a <br \/>stunned section of the country\u2019s population, even as the right itself <br \/>was delirious at what it could hardly believe was happening.<\/p>\n<p><\/p>\n<p>Magicians have certain stock tricks and are adept at creating <br \/>illusions so that audiences reach the conclusions magicians want.  The <br \/>judgement by picking stands and claims so devoid of any verifiable <br \/>content and so completely divorced from the normal realm of evidence, <br \/>proof, documentation, verification, legal sustainability, precedent, <br \/>etc., and alleged facts so impossible to prove, walked such a perilous <br \/>path that it appeared to it perfectly logical to resort to reliance on <br \/>blind faith&#8230;  and in doing so it created so compelling an illusion <br \/>that it successfully blinded itself to not only binding precedent but <br \/>also threw overboard all canons of judicial propriety in decision <br \/>making, to such an extent that from that warped viewpoint, only one <br \/>outcome seemed possible. Then it seems to have used the <br \/>reasonable-seeming outcome to reverse engineer \u201creasons\u201d to \u201cdecide\u201d the<br \/> matter in the way it did and the result was to inadvertently push the <br \/>law in the right  direction.<\/p>\n<p><img decoding=\"async\" src=\"http:\/\/www.iosworld.org\/ruins_of_babri_masjid.jpg\" \/><\/p>\n<p><\/p>\n<p>Just about all that most Indians will be interested in, in the matter<br \/> of the Babri Masjid \u2013 Ram Janam Bhoomi case, is who won or lost \u2014 the <br \/>outcomes of the cases. The court perhaps omitted to keep in mind one <br \/>other crucial factor : any judgement as a tool of legal thought-shift is<br \/> powerful because ratio decidendi of judgements forms the legal maze in <br \/>which the citizens must in future navigate for securing their rights.  <br \/>So, while most public discourse is confined to simplistic issues of who <br \/>won and who lost, the courts in fact write legal manuals to govern the <br \/>future of a billion people, impacting (now in unsettling ways at that) <br \/>what the legal fraternity smugly believed were settled jurisprudential <br \/>principles of limitation, res judicata, dispossession of persons in <br \/>settled possession being by only another provided that another could <br \/>prove better title, lis pendens (no party can transact to affect any <br \/>other party during the course of litigation), evidence, probative value <br \/>and more.<\/p>\n<p><\/p>\n<p>Given there was a mosque there for four centuries and a half, given <br \/>the rules of evidence, given the doctrine of lis pendens, given the <br \/>problem of limitation, given the problem of a video record of demolition<br \/> of the mosque by illegal means, the judges came up with a brilliant <br \/>solution : ignore the demolition of 1992 altogether and focus on the <br \/>alleged demolition of centuries in the past&#8230;  So what if there is no <br \/>proof of that alleged demolition ?  So what if there is no proof of who <br \/>executed that alleged demolition ?  So what if there is no proof, if <br \/>even there is actual controversy, about a specific place being a <br \/>birthplace as claimed ?  So what if there is no proof of that alleged <br \/>structure allegedly demolished being a temple ?  Shift focus from 1992, <br \/>of which time and act of demolition there is available evidence, to <br \/>another century, another set of allegations (as against proved fact) of <br \/>which there cannot be any proof&#8230; and fall back on the legally dubious <br \/>and logically questionably theory that because it is the faith of <br \/>millions it must be accepted.  Behold, the magical result is there !  <br \/>What cannot be, suddenly is !  What is, suddenly disappears&#8230;  and <br \/>there is \u201cjustice for all\u201d !!<\/p>\n<p><\/p>\n<p>Arre bhai, koi aur kyaa karey ?  What&#8217;s a judgement by a set of <br \/>conservative justices to do, faced with a nation on the boil, an issue <br \/>that is insurmountable, a 1994 Supreme Court refusal to answer a <br \/>reference but to rush in where a Higher Court declined to tread ?  <br \/>Unaware perhaps that by their judgement they erode the Law, all the <br \/>while the set of conservative justices assiduously wrote volumes in the <br \/>convenient belief that the integrity of the very nation itself was <br \/>otherwise in jeopardy. But to enable the set of conservative justices to<br \/> do their amazing work without itself getting caught in the nets of <br \/>precedent, law and logic, the judgement has been brilliant at choosing <br \/>to present resounding in its content only those claims  in which what <br \/>the alleged invaders did centuries ago was not just clear, but clear <br \/>enough to adequately to sustain a legal argument on, whereas what was <br \/>seen in 1992 was&#8230; wait, how could the judgement wish that away ?  <br \/>Simple \u2013 it did not !  It caused learned judges to simply ignore the <br \/>demolition of 1992 !!<\/p>\n<p><\/p>\n<p>What the judgement achieved is so fantastic, you would be amazed <br \/>beyond your imagination !  While the nation is watching, the <br \/>Constitutional mandate of upholding the law is sidestepped skilfully, <br \/>the principle that a change in situation during litigation cannot inure <br \/>to the advantage of any party is quietly buried, four centuries and a <br \/>half of history is disbelieved, mythology is elevated to the status of <br \/>fact, the rules of evidence are scuttled, the doctrine of lis pendens <br \/>disappears, the problem of limitation is overcome, the video record of <br \/>demolition of the mosque by illegal means evaporates, so the learned <br \/>judges can then turn their attention to the task they set themselves \u2013 <br \/>preserving the national peace while the judgement continued at its task <br \/>of destroying the rule of law.<\/p>\n<p><\/p>\n<p>Obviously the learned judges had no faith in the capacity of the <br \/>executive to ensure peace, prevent outbreak of violence&#8230; After all, <br \/>they did have as a stark reminder a precedent : the precedent of a State<br \/> Government holding out to the highest Court in the country the <br \/>guarantees and assurances of the protection of the mosque, and the grand<br \/> spectacle of that edifice come crumbling down&#8230;  So how could any <br \/>Court now rely on the executive ?  They had to ensure peace themselves !<br \/>  So what if that is not the mandate of a Court ?<\/p>\n<p><\/p>\n<p>Did you think the reference to \u201cthe grand spectacle of that edifice <br \/>c<br \/>\nome crumbling down\u201d was a reference to the mosque that was demolished ?<br \/>  No, since the judgement chose not to refer to it I will not either \u2013 <br \/>my reference is instead to the edifice of Rule of Law.  What was <br \/>reflected in that act of demolition of the mosque was aggravated first <br \/>by the very majesty of law being trampled upon by a State that breached <br \/>undertakings given to a Court, aggravated further by a Court that did <br \/>not react.  When mob violence takes over, reason, logic and law take a <br \/>back seat, and edifices do come crashing down.  That is in essence the <br \/>way the mob works.  Which is why decisions in disputes are not left to <br \/>mobs to take, for fear that those decisions taken by mobs would not <br \/>correctly be reflective of what the law prescribes, what the decisions <br \/>of past stalwarts of legal and constitutional thought have held, and <br \/>what would uphold the highest traditions that once prevailed in the <br \/>land.  Decisions in disputes are therefore left to Courts of Law.<\/p>\n<p><\/p>\n<p>Courts of Law to operate on the basis of Law.  If however, judgements<br \/> of a Court of Law were to proceed to do to the edifice of the majesty <br \/>of law and to Rule of Law exactly what a mob did to the edifice of the <br \/>mosque, would what happened to the mosque not also happen to the <br \/>structure of the Law as we know it ?<\/p>\n<p><\/p>\n<p>So who thinks it is the Sunni Muslim Wakf Board that is affected by <br \/>the judgement, or the Amrohi Akhara, or the Ram Lalla idol ?  The <br \/>persons affected one way or the other by the demolition of the mosque <br \/>may be those, but the persons affected by the demolition of Rule of Law <br \/>at the hands of the judgement are the likes of you and I, make no <br \/>mistake of that !<\/p>\n<p><\/p>\n<p>If a right is claimed and denied, the law step to correct any <br \/>imbalances.  Sorry, let me correct myself, the Law would have stepped in<br \/> to correct imbalances.  Now, with a verdict of three learned judges <br \/>vapourising so many legal principles at one stroke, what will now step <br \/>in will be not Law as we knew it, with inconvenient doctrines and <br \/>principles and requirements of evidence and proof and so on and so forth<br \/> disrupting national harmony, but Law as we now are told it shall <br \/>henceforth  be : the belief of millions shall be the effective <em>substitute for the law<\/em>.<br \/> With that substitute there is miraculously achieved, before your very <br \/>eyes, a magical transformation, a legal-morphing causing the law of the <br \/>land to disappear and stand substituted with the belief of a majority of<br \/> the people living in the country.<\/p>\n<p><\/p>\n<p>Three litigants got three months\u2019 more time to settle, or else.  The <br \/>country got for free the magic of the disappearing legal rules !  Ab <br \/>Supreme Court jaaiye, das saal wahaan latgegaa maamlaa&#8230; by which time <br \/>the magical result of today would have been operational for a decade !  <br \/>And who ever saw anything once granted in our country being taken back <br \/>again ?<\/p>\n<p><\/p>\n<p>The conservative judgement couldn&#8217;t simply overrule the problematic <br \/>legal issue of an inconvenient set of &#8220;precedents&#8221; staring at the judges<br \/> : faced with the national uproar both ways, for and against the <br \/>verdict, no one notices the silent but crucial collapse, at the hands of<br \/> the judgement, of settled legal principles.  Court decisions based on <br \/>highly fragile, judicially unknown and logically unacceptable lines of <br \/>reasoning will unfortunately invariably impact all who live in a land <br \/>with \u201cmillions\u201d subscribing to certain beliefs.  If the faith of those <br \/>millions is to be the determinant of what is proper and what is not, <br \/>then things like law, precedent, judicial decision making, rule of law, <br \/>etc., pale into insignificance and stand substituted by an uncertain, <br \/>absolute, unverifiable, impossible-to-prove something else \u2013 <em>the will of the majority<\/em>.<br \/> That spells the end of the India that Babasaheb Ambedkar, Bhagat Singh,<br \/> Mahatma Gandhi, Moulana Azad, Swami Vivekanand, and others of that <br \/>calibre thought would come into being.  We are now looking at a dubious <br \/>legal construct based on a thought-shift from the secular to the <br \/>fascist, from the multicultural to a monochromic, from the inclusive and<br \/> pluralistic to the exclusionist.  What we leave for our children is up <br \/>to us but one factor is not a variable : if we are not to allow a <br \/>malevolent drift, we need to act before it is too late.<\/p>\n<p><\/div>\n<p>    <\/p>\n<div class=\"links\">\n<ul class=\"links inline\">\n<li class=\"addthis first last\"><span>\n<div class=\"addthis_toolbox addthis_default_style\"><a title=\"Send to Facebook\" target=\"_blank\" href=\"http:\/\/www.addthis.com\/bookmark.php?v=250&amp;winname=addthis&amp;pub=&amp;source=tbx-250&amp;lng=en&amp;s=facebook&amp;url=http%3A%2F%2Ftwocircles.net%2F2010oct14%2Ffirst_mosque_disappears_then_law.html&amp;title=First%20the%20Mosque%20disappears%2C%20then%20the%20law&amp;ate=AT-\/-\/-\/4cb8b16af477291d\/1&amp;sms_ss=1&amp;at_xt=1&amp;ui_header_color=%23000000&amp;ui_header_background=%23FFFFFF&amp;CXNID=2000001.5215456080540439074NXC&amp;pre=http%3A%2F%2Fwww.twocircles.net%2F2010oct15%2Futtar_pradesh_journalists_demand_bukharis_arrest.html%3Futm_source%3Dfeedburner%26utm_medium%3Demail%26utm_campaign%3DFeed%253A%2BTwocirclesnet-IndianMuslim%2B%2528TwoCircles.net%2B-%2BIndian%2BMuslim%2BNews%2529%26utm_content%3DYahoo%2521%2BMail&amp;tt=0\" class=\"addthis_button_facebook at300b\"><span class=\"at300bs at15t_facebook\"><\/span><\/a><a title=\"Tweet This\" target=\"_blank\" class=\"addthis_button_twitter at300b\"><span class=\"at300bs at15t_twitter\"><\/span><\/a><a title=\"Send to Google Buzz\" target=\"_blank\" href=\"http:\/\/www.addthis.com\/bookmark.php?v=250&amp;winname=addthis&amp;pub=&amp;source=tbx-250&amp;lng=en&amp;s=googlebuzz&amp;url=http%3A%2F%2Ftwocircles.net%2F2010oct14%2Ffirst_mosque_disappears_then_law.html&amp;title=First%20the%20Mosque%20disappears%2C%20then%20the%20law&amp;ate=AT-\/-\/-\/4cb8b16af477291d\/2&amp;sms_ss=1&amp;at_xt=1&amp;ui_header_color=%23000000&amp;ui_header_background=%23FFFFFF&amp;CXNID=2000001.5215456080540439074NXC&amp;pre=http%3A%2F%2Fwww.twocircles.net%2F2010oct15%2Futtar_pradesh_journalists_demand_bukharis_arrest.html%3Futm_source%3Dfeedburner%26utm_medium%3Demail%26utm_campaign%3DFeed%253A%2BTwocirclesnet-IndianMuslim%2B%2528TwoCircles.net%2B-%2BIndian%2BMuslim%2BNews%2529%26utm_content%3DYahoo%2521%2BMail&amp;tt=0\" class=\"addthis_button_googlebuzz at300b\"><span class=\"at300bs at15t_googlebuzz\"><\/span><\/a><a title=\"Digg This\" target=\"_blank\" href=\"http:\/\/www.addthis.com\/bookmark.php?v=250&amp;winname=addthis&amp;pub=&amp;source=tbx-250&amp;lng=en&amp;s=digg&amp;url=http%3A%2F%2Ftwocircles.net%2F2010oct14%2Ffirst_mosque_disappears_then_law.html&amp;title=First%20the%20Mosque%20disappears%2C%20then%20the%20law&amp;ate=AT-\/-\/-\/4cb8b16af477291d\/3&amp;sms_ss=1&amp;at_xt=1&amp;ui_header_color=%23000000&amp;ui_header_background=%23FFFFFF&amp;CXNID=2000001.5215456080540439074NXC&amp;pre=http%3A%2F%2Fwww.twocircles.net%2F2010oct15%2Futtar_pradesh_journalists_demand_bukharis_arrest.html%3Futm_source%3Dfeedburner%26utm_medium%3Demail%26utm_campaign%3DFeed%253A%2BTwocirclesnet-IndianMuslim%2B%2528TwoCircles.net%2B-%2BIndian%2BMuslim%2BNews%2529%26utm_content%3DYahoo%2521%2BMail&amp;tt=0\" class=\"addthis_button_digg at300b\"><span class=\"at300bs at15t_digg\"><\/span><\/a><a title=\"Email\" class=\"addthis_button_email at300b\"><span class=\"at300bs at15t_email\"><\/span><\/a><a title=\"Save to Favorites\" class=\"addthis_button_favorites at300b\"><span class=\"at300bs at15t_favorites\"><\/span><\/a><a title=\"Send to Addthis\" target=\"_blank\" href=\"http:\/\/www.addthis.com\/bookmark.php?v=250&amp;winname=addthis&amp;pub=&amp;source=tbx-250&amp;lng=en&amp;s=addthis&amp;url=http%3A%2F%2Ftwocircles.net%2F2010oct14%2Ffirst_mosque_disappears_then_law.html&amp;title=First%20the%20Mosque%20disappears%2C%20then%20the%20law&amp;ate=AT-\/-\/-\/4cb8b16af477291d\/4&amp;sms_ss=1&amp;at_xt=1&amp;ui_header_color=\n%23000000&amp;ui_header_background=%23FFFFFF&amp;CXNID=2000001.5215456080540439074NXC&amp;pre=http%3A%2F%2Fwww.twocircles.net%2F2010oct15%2Futtar_pradesh_journalists_demand_bukharis_arrest.html%3Futm_source%3Dfeedburner%26utm_medium%3Demail%26utm_campaign%3DFeed%253A%2BTwocirclesnet-IndianMuslim%2B%2528TwoCircles.net%2B-%2BIndian%2BMuslim%2BNews%2529%26utm_content%3DYahoo%2521%2BMail&amp;tt=0\" class=\"addthis_button_addthis at300b\"><span class=\"at300bs at15t_addthis\"><\/span><\/a><\/div>\n<p><\/span><\/li>\n<\/ul>\n<\/div><\/div>\n","protected":false},"excerpt":{"rendered":"<p>Submitted by admin4 on 14 October 2010 &#8211; 11:47am Articles Indian Muslim By Shafeeq Rehman Mahajir, In the Ayodhya matter, has the judgement of the Allahabad High Court unwittingly taken the law to the ideological right, and conferred legitimacy on questionable doctrine of majoritarian supremacy, while at the same time succeeding, I cannot say inadvertently&hellip; <br \/> <a class=\"read-more\" href=\"https:\/\/venusimportexport.com\/wordpress\/index.php\/2010\/10\/16\/first-the-masjid-disappears-then-the-law\/\">Read more<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-977","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/posts\/977","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/comments?post=977"}],"version-history":[{"count":0,"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/posts\/977\/revisions"}],"wp:attachment":[{"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/media?parent=977"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/categories?post=977"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/venusimportexport.com\/wordpress\/index.php\/wp-json\/wp\/v2\/tags?post=977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}