Justice Asok Kumar Ganguly, before delivering his talk on, “The Consequences of Ayodhya Judgment of Supreme Court,” said, “I was also a former Supreme Court judge and I still believe that as an institution Supreme Court has done tremendous good work to interpret the Constitution, to shed new light on it, and to bring the Constitution nearer to the people. So I still hope people look at the Supreme Court as an institution of importance, an institution to guide the nation in difficult times.”
Justice Ganguly began his talk by saying, “I am reminded of what was done by Justice Krishna Iyer. The great Supreme Court Judge said when the Supreme Court delivered the Shah Bano judgment, the then Central government wanted to pass a legislation and it did pass the legislation to nullify the fate of the judgment, and criticised the legislative endeavor of the then Central government. Justice Krishna Iyer wrote a letter to the then Prime Minister Mr. Rajiv Gandhi. And there he said, I remember his words, You have a duty to speak when it is a matter of national crisis. Maintaining silence is a delinquency. Therefore I am here to speak today inspired by what Justice Iyer said because I think as a former judge of the Supreme Court and a very humble student of law I have a duty to speak on this occasion within a month of the delivery of the judgment.”
“I have read the judgment, except the addendum. In my 18 years carrier as a judge I have never heard that there can be an addendum to a judgment. After the judgment concludes, there comes an addendum. It is neither a dissenting judgment nor a concurring judgment. After reading the judgment my reaction in one sentence is that the conclusions of the judgment are not matched by its reason, rather they are mutually destructive,” said Justice Ganguly while speaking on “The Consequences of Ayodhya Judgment of Supreme Court” at a programme organised by South Asia Human Rights Documentation Centre at India International Centre on 2 December.
“The Judges have concluded that it cannot be said that by demolishing a temple the mosque has been built. This is a conclusion of great importance because the previous judgment, where the mosque was demolished in Ismail Faruqui verdict, the government reference was precisely on this point which the learned judges refused to answer but in the final verdict this has been answered that the mosque was not build by demolishing a temple,” said Justice Ganguly.
“When Hindus were prevented from constructing the temple in the year 1934 there were communal disturbances and the mosque was damaged and it was restored by the British Government and fines were imposed on the Hindus. The Britishers protected the rights of the minorities better than the present constitutionally formed government where secularism is the basic feature. He reminded that even though secularism was not the basic feature under the Government of India Act back then, they wanted to maintain peace, law and order,” said Justice Ganguly.
In the light of the judgment, Justice Ganguly, while referring to the Chapter 7 of the Hindu Law & Constitution, written by him, said, “The demolition of Babri mosque was the most reprehensible act. The perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and the rule of the law enshrined in our Constitution. What happened on 6 December was not a failure of the system as a whole but of the wisdom inherent in India’s Constitution, the power of tolerance and brotherhood and compassion that has so vividly formed the life of Independent India. It was great pity that the elected government could not discharge its duty in a matter of sensitiveness of magnitude and therein lies the failure, therein lies the betrayal. What was demolished was not merely an ancient structure but the faith of the minorities in the state of justice and fair play of the majority. It shook their faith in the rule of law in the constitutional process.”
“The majority judgment in Ismail Faruqui upheld the acquisition internally on a very strange ground that offering namaz in a mosque is not an essential tenet of Islam which has been negatived (rejected) in the final judgment which is very significant. He referred to pages 114, 115 in the judgment which said, the belief and faith of the worshipper in offering namaz at a place which is for the worshipper of a mosque cannot be challenged. The minority view of the Ismail Faruqui judgment stands upheld because the Supreme Court has held that you cannot test the correctness of the worshippers who are offering prayer in place. If I offer my prayer in place and call it a mosque that cannot be questioned by the court. With the previous findings of the learned judges of the majority view that offering prayer in a mosque is not an essential tenet in Islam, which in my humble criticism is an absurd view. Today the minority view in Ismail Faruqui stands vindicated,” argued Justice Ganguly.
Justice Ganguly, while concluding, referred to a very pity observation made by Justice Frankfurter in the case, Dennis v. United States, “History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passion of the day, and assuming primary responsibility in choosing between competent political economy and social pressures.”
Another senior lawyer of SC, Sanjay Hedge, while recalling how badly the lawyers were divided to condemn the Babri Masjid demolition, said that the Supreme Court wanted to get away with it and to find out a solution which is implementable on the ground. “Justice Ganguly is right in saying that in this judgment the reasoning does match with the conclusion that is simply because they arrive at a conclusion first an compiled the reasoning and arguments later and they had a deadline. Today what has been achieved is thanedaar justice. The thanedar is not interested in resolving problems; he is only interested in keeping things quite within his jurisdiction.”
Professor Neera Chandhoke, a political scientist, said that there was complete silence after the verdict just because detention camps were announced.