The above background should enable an assessment of whether the Supreme Court's interim order of March 2002 'squared up' with the original majority verdict of 1994, and, in retrospect, whether the latter itself 'squared up' with the letter and spirit of the act on which the judgment was delivered.
The fundamental aim of the act was, as seen above, the maintenance of communal harmony amongst the people of India. Going by the severe communal riots resulting from the permitted kar seva leading to that event of December 6, 1992, the Supreme Court's interim order prohibiting shila daan puja was a sage decision. It was a triumph of sanity, not secularism, real or hypocritical. What the court did was pre-empt the possibility of history repeating itself when we don't learn from history. Its order, so to say, 'squared up' with history.
The apex court's refusal to let the central government return part of the acquired land to the original Hindu owners also 'squared up' with the law as laid down in section 6(1) of the acquisition act. Overriding what is stated in sections 3, 4, 5 and 7 of the act, section 6(1) makes it clear that if the central government so decides, the right, title or interest in a part or whole of the acquired 67.703 acres can be transferred to only such authority or body or trust as is not only willing to comply with certain terms and conditions but which, more importantly, is set up on or after the commencement of the act ie, January 7, 1993. That cut-off date meant that neither the original owners of the acquired land (including the Ram Janambhoomi Nyas) nor the VHP was, according to law, even entitled to ask for the return of acquired land to itself. QED.
However, Arun Shourie has, in The Indian Express, Mumbai, of March 18, 2002, quoted excerpts from the 1994 majority verdict to make the contrary viewpoints that:
- 'The duty of the Central Government as the statutory receiver is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed land has been acquired.'
- 'This [use of the words "so far as may be" in Section 6(3)] provides for the situation of transfer being made, if necessary, at any stage and of any part of the (undisputed) property since Section 7(2) is applicable only to the disputed area.'
- The presidential reference also makes it clear that 'the acquisition of the disputed area was... limited to holding it ...till the resolution of the dispute and then to transfer it.'
The billion-dollar question then is whether the acquisition act says what the 1994 Supreme Court verdict said it says.
Learning from Arundhati Roy's one-day stint at Tihar Jail and knowing that discretion is the better part of valour, it seems better to ask questions of the reader rather than to pen criticism of the apex court's view of 1994. So, here goes:
- Since the acquisition act had, by section 4(2), abated all pending suits, how can any part of the rest of the act have even conceived of 'adjudication made in the suits...'? Further, since section 6(1) lays down that the vesting of rights of the central government is to be done to an authority formed only on or after January 7, 1993, how can either of the two parties contesting title to that site much before that cut-off date be given those rights? And since the 'objects and reasons' for the enactment of the acquisition act clearly state that the acquisition of the disputed site and adjacent area was necessary for 'setting up a complex wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable other facilities can be set up', how can it be said or construed that there was any other purpose for acquiring the disputed land and adjacent area? [vis-à-vis A above?]
- Since section 8 of the acquisition act provides for compensation at market value to be paid to every owner of undisputed land acquired, would the act not have provided for return of the compensation amount if the law had intended that acquired land was to revert to its owners at some stage? And doesn't section 6(1) say that it overrides anything contained in sections 3, 4, 5 and 7? [vis-à-vis B above]
- Isn't linking the ingredients of the act to the presidential reference (made in the context of the ordinance, without even anticipating the changed circumstance of the later act) akin to mixing oil with water? And doesn't the reference really talk of 'settling the dispute' in terms of the Supreme Court opinion rather than 'resolution' of the dispute? [vis-à-vis C above]
Finally, the mother of all questions: what happens if the special bench of the Allahabad high court -- currently 'expediting' the five pending suits pertaining to the title of the disputed site -- echoes the minority view of the Supreme Court on the presidential reference? What happens if it also says that its decision is bound to favour one religious community while disfavouring another and would thus be non-secular and, therefore, unconstitutional? What, therefore, if it refuses to give its decision?
Sense and sanity would therefore demand that the Vajpayee government either amend the present act 33 of 1993 or bring about a totally new legislation on the subject of the 67.703 acres acquired in Ayodhya.
