Explained: Mandir’s Ultimatum and the Law

Mandir demand and the law
On 9th December VHP-led rally in Delhi, the speaker said that legislation for a temple was the only available option. (PTI)

In the recent days, the RSS, the Vishva Hindu Parishad (VHP), a few honourable BJP leaders and religious leaders have been pushing for a law which would permit the construction of a temple in Ayodhya. The RSS and VHP raised the issue for the first time in a rally held in Delhi on 9th December, and since then VHP and other committed individuals have echoed it back and forth. A look at the legal options available for government at such a time when the Ayodhya title suit hearing is yet to resume in the Supreme Court is of great importance.

What is the reason behind the appeal for Ramp temple construction in Ayodhya?

Just before his retirement, Dipak Misra who was a Chief Justice of India triggered the resumption of the case proceedings about the title suit for the site in Ayodhya. Turning his deaf ears to the people’s plea to make reference to a larger Bench its 1994 ruling in which it was stated: “a mosque is not an important part of the Islamic religious practice and Muslims Namaz can be provided anywhere, including the open air”, the bench of three judges ruled that the hearings on the appeal would resume as from October 29th. The case has been perceived by the groups which have been calling for the construction of the temple as a fast-tracking case. However, after the new CJI, Justice Ranjan Gogoi took over, he didn’t let the Uttar Pradesh government’s plea carry the day. Instead, he ordered that these appeals be listed in the first week of January. This has triggered demands from different parts of the country for a new law that would permit the construction of Ram temple in Ayodhya.

If the government is planning to make this a law or rule it as a law, how can it achieve it?

The decision lies with the political choice of the central government. Any law that it will try to bring into action will be like any other bill that would be passed by the majority in both of the houses. It still stands whether or not the implementation of the law would permit the temple construction on the land under dispute or will be constructed on the land where the mosque was demolished earlier. The Supreme Court has however ruled out that any action that will be taken towards stopping the pending suits is unconstitutional. After the demolition of Babri Masjid, the Congress-led government passed the land acquisition of some areas at Ayodhya Act 1993, also allowing it to get land ownership bordering Bari Masjid, even though the High Court of Allahabad had a case pending on this much-disputed land.  The five-judge Bench at the Supreme Court advocated for the action but the verdict by majority slashed out section 4(3) that allowed for the stopping of the pending suits and legal proceedings without giving for an alternative mechanism for dispute resolution.

Is it possible to for the Supreme Court to come in and stop the move that is intended to replace the legal proceedings?

The Seventh Schedule of the constitution listed 100 items upon which Parliament has the exclusive right to legislate. Also, parliament has the legal right to legislate on 52 items that fall under the concurrent list. Parliament has been given full authority to legislate on any matter that relates to the acquisition and requisition of property. With all these rights, can parliament enforce a law to permit construction of the temple on disputed land? The Seventh Schedule states it clearly that Parliament can legislate on any item listed on the List II or List II and the government has a legal right to come up with a law even if the case is still pending in court. However, the constitution permits the judiciary to adjudicate on the validity of all the laws constitutionally.

Does any example of such executive of legislative action exists, either by means of a rule or a law, which is similar to this one?

There have been many cases where the government has enacted laws which were later approved by the Parliament on matters of sub-judice. As an example, the government passed a Bill this year in August to change an order from the Supreme Court which was to safeguard against the arrest in the SC and ST Act. The rule was implemented even as a hearing of a petition filed against the order was still in the court. Another instance was the Acquisition of Certain Area at Ayodhya Rule of 1993 which was rendered useless in 2010 when a verdict from Allahabad High Court stated that the title suit was to be shared among the three parties involved.

Does this mean that legislature is dominant over judiciary?

The government has more powers even to enact a law legalizing the temple construction on disputed land. On the other hand, the Supreme Court is only mandated to review the formulated law according to the constitution.

In such a circumstance, when the legislation permits the construction of the temple on the disputed land, it will be seen as taking sides with one party. The judiciary affirmed earlier that this option is out of the question and is not applicable in a situation like this. One of such a judicial case was made in 1991 by R Venkataraman, who was the president by then, to resolve the case of the Cauvery Water Disputes Tribunal. “The main idea which came out was that the legislature had the authority to change the law depending on the court’s decision and thus will affect the final results. It is not, however, authorized to take on an individual’s decision and interfere with their rights and liabilities by itself.” Said the five-judge Bench headed by Ranganath Misra who was CJI by then. The Bench also added: “such actions on the legislature leads to exercising judicial powers of the State as well as to functioning as an appellate court or Tribunal.” This is not permitted by the constitutional division of powers.

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