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This article is written by Sanjoli Verma.

“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution.”

-Charles Evans Hughes

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Introduction 

India is a unique secular country where all the religions are recognised by law as equals and have enormous diversity but still it has its drawbacks by trapping people in different religions beliefs and communalism. Though India and its people are very tolerant but sometimes to maintain, protect an preserve their insecurities about their cultures, people of different religion comes into clashes and conflicts. And some issues are so prolonged and strong that they leave solid impact on the spirit of India. The main issue of minorities who feel insecure that they are not being recognised and are getting suppressed. 

One such case was the Ayodhya land dispute also known as Ram Janma Bhoomi and Babri Masjid case which has prolonged for almost 71 years now. In 1949, the beautiful city of Ayodhya as rightly described by Poet Tulsidas was under the Faizabad District of U.P. The city is inhabited by both Hindus and Muslims. The issue was that Hindus claim it as the birthplace of Bhagwan Ram and Muslims claim it to be the place of Babri’s Masjid which was constructed by the Mughal King Babur in 1528. The Court in Ratilal Panachand Gandhi vs The State Of Bombay & others said that the Fundamental Rights under Article 25 provides freedom of religion to every citizen.

The judgement and its relation with  jurisprudence 

As we know that jurisprudence is the study of law and law is deeply associated with traditions, morals, ethics and religion of the people. The role of law is to uphold the virtuous spirit of the country where it is the duty of law to provide welfare, order and protection to it’s citizens. Without the evolution of jurisprudence, the law could not have developed to this extent where it can suit the changing needs of the society and provide solution which suits the most to the affected parties. 

In S.R. Bomai vs union of India, the Court said, “that secularism and fraternity are basic features of the Indian Constitution under” Article 25 to 28. “The Court goes on to strongly affirm both the constitutional value and significance of the Places of Worship Act, 1991.” The courts have raised the pedestal of this act to that of a constitutional statute whose importance has been highlighted by various progressive secular activists.

The Court has tried to uphold the different theories, doctrines and different laws which have originated mainly from jurisprudence to serve the needs of the people. In the matter of Indian Young Lawyers Association vs. State of Kerala, the Apex Court explicitly favoured constitutional morality. The Court while finding a judgment has relied on both historical and sociological schools of jurisprudence as the case is deeply entwined with historical facts and sociological behaviour and feeling of the two communities. 

Approaches applied in the judgement

~ Historical approach: Sir Henry Maine, Savigny and Edmund Burke were the chief exponents of this schools of jurisprudence which believes that law is outcome of a long historical evolution of this society in which we live in because the original sources of law are customs, traditions, social practised, religious conventions and principles, political and economical needs and ultimately the relation of people with themselves.

This school believes that “History repeats itself” and thus we have to learn, analyse and study from our past actions and if such a situation arises again we need to try to improvise and modify our response to it logically to get a better result and not repeat the same mistakes which were done in the past. Hugo and Schelling believe that law has originated from customs, practices, habits, common faiths and beliefs, sentiments of people and traditions.

According to this theory, law is the product of influences event and forces of the past which depended on sociological, political, economical and religious factors. It is based on the conscience of people which started right from the beginning of the society where the community carried out their practices and which suites and seemed right to them the most they resigned those practises as the law. There was no ruler or sovereign to create any law. According to Sir Fredrick Pollock, this method is nothing but Doctrine of Evolution which is applied to human institutions.

Savigny is regarded as the founder of this school and gave Volkgeist theory which says that law is based upon the general will and freedom of the common people where law grows with development of nations and dies with the disintegration and dissolution of nations. According to this law does not have universal applicability as law differs form local to local customs, conditions and elements.

“This theory has some defects. Being conservative in its outlook it relies on past, however, its merit is that it shows that law must change with the changes in society. It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way, it supplemented the analytical school of law”.

This theory concentres on importance of social institutions and studies the growth go legal institutions since the primitive era and historical jurists this reject the ethical considerations and participation of judges and courts in process of law-making as they believe that law has a biological growth and says that law is a continuous and unbreakable process. They say that creation of law was automatic and after it jurists play a role to develop it. Here the court relied on the historical facts and the reports of ASI so as to provide a just judgement. Here is the reason:

Historical Backdrop of the Ayodhya case: The dispute took rage when the Hindus started claiming that Majid was constructed after destroying the Ram temple which obviously Muslims disagreed. Hindus in 1949 took a daring step and placed an idol of ram inside the Majid which caused many Hindus to strengthen their belief and they started visiting Ayodhya, which was considered to be highly disrespectful towards Islam religion by the Muslims.

The authorities tried to remove this problem where the entry was restricted and finally, a petition was filed in 1950 over Ayodhya dispute by Gopal Singh, the court proceeding was dragged for almost a decade and in 1959 Nirmohi Akhara filed another suit claiming that the area should in their possession as they are a rightful manager of Ram Janmabhoomi and to retaliate on this the Sunni Central Board of Waqfs filed another petition in 1961 and this again went on for another decade and when in Tamil Nadu in 1981 around 400 converted to Islam it causes a great deal of disturbance nationally.

In January, 1986, Umesh Pandey filed another suit for removing the restriction on entry into the masjid to which the judge ordered in favour but when shocked Muslim representatives filed a petition, the High Court of U.P. put an order of stay. In 1992, Karsevaks (supporters of construction of Ram Temple) organised a Rathyatra from Somnath to Ayodhya where on 6th December thousand of people gathered together and demolished the mosque.

This lead to a series of clashes between the two communities and violence erupted in Jan, 1993. President’s rule was imposed in U.P. and the central government appointed a commission to investigate on the issue of land dispute which has led to many serious religious debates on secularism. In 2002, large-scale violence against Muslims in took place and in retaliation at a station named Godhra, few members of the Muslim community set fire on the bogey of the train filled with Karsevaks who were returning from Ayodhya, this in-turn led to more large scale violence. 

In 2003, Allahabad High Court called in Archaeological Survey of India to investigate the disputed land and to gins historical evidences, who asked for an excavation. The ASI in its report affirmed the evidences of a Northern-style temple found on the site. In 2010 the same court ordered that the land must be tri-furcated among temple, Lord Ram, Muslims and Nirmohi Akhara to which neither parties accepted and soon a petition was filed under the Supreme Court of India who put a stay on High court’s order, the same was reiterated in 2011 by the Apex Court. 

Sociological approach: “Montesquieu was opposed to natural law and thus he laid down the foundation of comparative and sociological jurisprudence”. Similarly like the upper given example, this school of jurisprudence has evolved from various other jurists thought and hence does not have any one particular idea of origin. Along with Montesquieu, August Comte, Duguit, Herbert Spencer and Rosco Pound was the chief exponent of this school.

In the 19th century as a result of the doctrine of Laissez-faire witnessed a shift from individual to social phenomena wherein the Volkgesit theory emphasised the intimate relation of law and social environment. As before issues like health, education, welfare, upliftment of backwardness were not the state’s concern and sociological school emerged to remove such shortcomings.

As Comte was the first writer after using the term sociology for the first time, he described this as a positive science of socials phenomena and facts. Later many thinkers and jurists continued to find a link and relation between sociology and law. Gurvitch said that meeting point of sociology and law is the ‘sociological law’ and it should be distinguished from sociological jurisprudence.

This theory primarily studies the law and its impact on the society. It examines law in relations to societal phenomena. The supporters of this school linked law with otters social sciences such as psychology,  history, geography, philosophy, economics and political science. Law is an applied science implementing functional methods of analysis and investigation for resolving the individual and social problems. Bentham expounded the principle of utility because he was a positivist, which provided indirect influence in the sociological formulation of law. In the 19th and 20th century juries like Pound, Ihering and Duguit developed and elaborated this approach.

~ Sociological jurisprudence in India: In the last 3 decades this school has engaged and influenced the country macrocosmically where there is a need to study economical-sociological realities on a daily basis to keep harmony between people of all religions. Legal scholars like Justice V.R. Krishna Iyer, Y.V. Chandrachaud, P.N. Bhagwati, D.A. Desi and O. Chinappa Reddy have progressively tried to establish the importance of relationship of law, society and its changes and have used this school in interpretation of various laws. Pound’s ‘social engineering’ has the primary credit to use this approach on deciding cases like the Ayodhya land dispute. 

The final steps towards the decision 

And since the stay order the suit was pending tediously until when BJP Senior Member, Subramanian Swamy filed for considering this case as a Special Leave Petition under Article 136 for his right to worship but the same was dismissed by SC on 14th March, 2018 along with other interim pleas, as Swamy’s intervention petition on the Ayodhya land dispute was against the doctrine of Privity of Contract.

The court also said that only parties to the original lawsuit will be allowed to file another plea. After 2011, the Apex Court said in 2017 that the matter was sensitive and should be settled out of the court but no success was achieved and in 2018 the court set up a 5-judge constitution bench led by CJI Ranjan Gogoi and finally began the final hearing of this dispute. The verdict was about 1045 pages long.

The court relied on the ASI report which is to be published as a book soon. The court for the first time delivered a judgement on Saturday since its establishment in 1950. Though the hearing went on from 6th August, 2019 till 16th October. But the bench reserved the final judgment and granted three days to contesting parties to file written notes on ‘moulding of relief’ or narrowing down the issues on which the court is required to adjudicate”. Before delivering the verdict a long 15-day restriction was imposed on Ayodhya to avoid any violence. The landmark verdict was delivered finally on 9th November, 2019. All other petitions seeking review were dismissed by the court on 12th Dec, 2019.

Approach used by the court

This case evolved around not only on the religious thread but also on political one as no matter how many rights the Constitution provides to safeguard the people minorities have felt insecure and majority believes they have the strength in number. If this case was handled in some other way without going into so many technicalities there would have been a huge crisis.

The dispute involved the issue of property rights and the court tried to bring justice. Civil disputes are a predominance of probabilities and the court tried to apply this standard in the Ayodhya judgement and favoured and titled the balance of probabilities towards Hindu party. However, some believe that the “vast swathes of documentary and testamentary proof that it cites is almost a gib”. The court has the duty under Article 142 to deliver complete justice without being shackled by the chains of civil law. 

It is believed that the court decided this case on the basis of testimony and pre-existing principles of law while the others say that it was faith upheld by law. However, it can be said that the Court relied on both sociological and historical approaches in finding the best decision of the judgement.

The court mainly relied on the historical approach as only the report of ASI could help in determining the truth of historical facts and evidence of the disputed site. The court also kept in mind the sociological and religious impact that could have on the people while delivering the judgement. And to achieve a comprise the court tried to find a mediate ground wherein both the parties could meet halfway so that the judgment does not have recline on only one side.

It was made sure that even though the ultimate judgement was in the favour of Hindus but it was seen that Muslims should also get the best alternate resolution which is why they were granted a 5 acre land outside the disputes land for the construction of a new mosque and the Hindus were granted 2.77 acres to construct the temple on the now-undisputed land in Ayodhya.

Judgement

The court ordered to provide 2.77 acres of the disputed land to be given for the construction of Ram Temple through a government trust. And another 5 acres of land is to be found somewhere else for the construction of Mosque and simultaneously the court dismissed all the other petitions. In February, 2020, Prime Minister, Narendra Modi announced in the Lok Sabha that the government had given its approval to the proposal for “Shri Ramjanmabhoomi Tirtha Kshetra” trust to take care of the construction of a grand Ram temple in Ayodhya and other related issues. Six months later Bhoomi Pujan was held on 5th August, 2020, wherein PM Narendra Modi visited Ayodhya to lay the foundation stone of a 40 kg silver brick for the construction of the Ram Mandir at the Ram Janmbhoomi site. Despite the shadow of the coronavirus pandemic, the event was extravagant, with as many as 175 invitees. The name of this magnificent case is M Siddiq (D) through Others vs. Mahant Suresh Das.

The Court also ruled that the 2010 decision of the Allahabad high court was wrong and that the demolishing and desecration of the Babri Masjid was in violation of law. The Court observed that archaeological evidence from the Archaeological Survey of India shows that the Babri Masjid was constructed on a “structure”, whose architecture was distinctly indigenous and non-Islamic.

On objections raised with regards to ASIs various scientific claims by the Muslim parties, the Supreme Court observed, the contesting parties could have raised it before the Allahabad High Court as there were legal remedies available for the same. The ruins of an ancient religious structure under an existing building do not always indicate that it was demolished by unfriendly powers. The court observed that all four of the Janamsakhis state unambiguously and in detail that Guru Nanak made pilgrimage to Ayodhya and offered prayers in the Ram temple in 1510–11 AD.

The Court said that Muslim parties, including the Uttar Pradesh Sunni Central Waqf Board, failed to establish exclusive possession of disputed land. It said that the Hindu parties furnished better evidence to prove that Hindus had worshipped continuously inside the mosque, believing it to be the birthplace of the Hindu deity Rama. The Court cited that iron railings set up in 1856–57 separated the inner courtyard of the mosque from the outer courtyard and that Hindus were in exclusive possession of the outer courtyard and even before this the Hindus had access to the inner courtyard, hence the waqf board failed to prove possession.” However, the Court asked that Nirmohi Akhara should be given proper representation in the board of trustees but it denied any Shebat rights of Akhara.

The Court made it clear that it did not give primacy over one religion over another and said that the title can not be provided only on the basis of faith. The gap of 4 centuries caused ASI report to say it did not found any solid evidence of demolishing of Hindu temple to construct the mosque and hence Hindu’s primary right was rejected. The court also said that though the Ram Lalla was a juristic person but the place of Ram Janam Bhoomi doesn’t possess any jurist personality and those religious doctrines can not be used in an absolute or extreme form.  

Role of the Judges 

Jurisprudence is the study of law and it is the duty of the Judiciary to provide justice and protection against any harm or arbitrary action of any person or even the government. Judiciary is run because of the appointed of judges and hence without Judges the institution of Judiciary can not survive. Our Constitution is 73 years old now. The law-making is in the hands of the Parliament but today due to the vast scope of Judicial Activism even the judiciary, under the Constitution, has the power to interpret, analyse, adjudicate the disputes in accordance with law and justice and set precedent on any law or provision which has the supreme authority The most important role of the Judiciary and especially go higher courts is to protect the Indian Constitution. 

Interpretation and pricing justice is the primary function of law but sometimes the role of judges shift from interpreter to that of giving life to a law and make it functional. Judiciary is an institution which comprises of judges however if we look theoretically judges and judiciary are one and the same thing. They provide flesh and blood to the skeleton of the judiciary and legislature.

Judges have the power to provide doctrines, re-examine old ones and establish precedents which are as good as any parliamentary passed law. Judges are appointed by different authorities such as President and Governor according to the post, while taking the oath the judges swear to protect and uphold the constitution and laws and should bore this in his mind. Under Article 13 if a judge thinks any legislation is against the spirit of constitution then he can declare it ultra vires. The judge has to fill gaps which are caused by the inconsistencies. 

Laws in Contemporary Times

Lawmaking is an inherent process of judicial process as in the matter of Rattan Chand Hira Chand v. Askar Nawaz, the Apex Court said that “when court perform this function undoubtedly they legislate judicially. It is a kind of legislation which starts implicitly delegated to them to achieve the object of legislation and to promote the goals of the society”

In Canocraft Ltd v. Pan American Airways Inc, the Court said that “the duty of the court is to ascertain and give effect to the will of the Parliament. Interpretation of Statues is a craft and the judges as Craftsmen select and apply rules as tools of their trade”. In the matter of Vishakha & Others v. State of Rajasthan, the Court said, “The primary responsibility for ensuring the safety and the dignity of the citizens through suitable legislations and the creation of a mechanism for its enforcement is of the legislature and the executive. When, however instances of violation of fundamental rights of citizens taken place then some guidelines should be laid down for the protection of this right to fill the legislative vacuum.”

The judges have also advocated the importance of Human rights which is divided into part 3 and 4 of the constitution in the form of fundamental rights Justifiable and enforceable through courts of law and the social-economical and cultural rights mentioned as Directive Principles of State Policies. As India is a welfare state as stated by the Preamble of India, there are no conflicts in either of the parts because they supplement each other and aim at bringing justice and social revolution to all of the citizens. The courts should be free form any political pressure and influence and deliver impartial judgments which was evident from the incident during the Emergency of 1975 when the government of PM Indira Gandhi brought in the 42nd Constitutional Amendment and took away court’s basic power of judicial review from any actions of the government.

The independence of judiciary depends on the doctrine of Separation of Power which asks for division and distribution of power to avoid centralisation of power which can lead to exploitation for own’s interest. Judicial review incorporated in Articles 226 and 227, is an effective machinery to guarantee the system of checks and balances in the other two organs of the democracy.

Any provision which abridges the right to judicial review is completely against the rule of law. The higher courts have the power to issue writs of Mandamus, Certiorari, Prohibition, Habeas Corpus and Quo Warrants under article 32 for Supreme Court and Article 136 for High courts. The court thought its impeccable army of judges have given some outstanding, virtuous and formidable judgments on various issues which have completely changed and has deeply influenced the change in Indian society. Some of the cases are : 

In the matter of Indian Young Lawyers Association v. State Of Kerala, the Supreme Court has struck down a rule that disallowed girls and women in the 10-50 age group from entering the Sabarimala temple in Kerala. Chief Justice Dipak Misra-headed Constitution bench in a 4-1 verdict said the temple rule violated women’s right to equality and right to worship.

Marital rape was recently criminalised which gives more protection to married women under Section 375 according to the matter Sree Kumar vs. Pearly Karun, as it was against the constitutional right under Articles 14, 21 and 15.

In Navtej Johar vs Union of India Ministry of Law & others, the Supreme Court of India unanimously held section 377 to be unconstitutional and decriminalised the non penal-vaginal intercourse. This precedent gave more recognition to the LGBT community.

Judges must provide proper, logical and just reasons to support their judgement and should avert any arbitrary decision. As they are appointed officials it is their constitutional obligation to provide impeccable significance, meaning and interpretation of every issue that comes forward.

Through allowance of Public Interest Litigation, the court has also tried to expand its protective umbrella to the people who can not come forward and seek justice for themselves. They have an important role in maintaining Article 14 i.e, rule of law. They are the protectors of fundamental rights mentioned under Articles 12 to 32. Judges through judiciary have provided such precedents and judgements which has even put the other organs of the state i.e, executive and legislature into the dark shadows because of their actions. 

In Bachhan Singh V. State of Punjab, the court said that the Rule of Law has three basic and fundamental assumptions. The first case by which the debate for rule of law started was Shankari Prasad V. Union of India, where the question of amenability of fundamental rights arose. The question lingered and after witnessing the gameplay between the government and the judiciary, the issue was finally settled in the case of Kesavananda Bharati V. State of Kerela, in this case, the Hon’ble Supreme Court held that the Rule of law is the “basic structure” of the constitution.

But in I.C. Golaknath and Ors. vs State of Punjab and Anr, the Supreme Court by majority overruled the decision and held that the Parliament has powers to amend the constitution and it extends to all Articles, but the amending powers are not unlimited and do not include the power to destroy or abrogate the basic feature or framework of the constitution. 

In the case of S.P. Sampath Kumar v. Union of India, the court stated that judicial review is part of the basic structure of the Constitution. In Union of India v. Raghubir Singh, the Supreme Court said that it is not a matter of doubt that a considerable degree of principles that governs the lives of the people and regulate the State functions which flows from the decision of the Superior Courts. Judicial review is an effective mechanism to ensure checks and balances in the system.

In M.C. Mehta v. Union of India (Shriram – Oleum Gas), the Court said that with the development and fast-changing society the law cannot remain static and that the law has to develop its own new principles. The above decision reflects that the courts do make law, they frame new principles; interpret the statutes and the constitution with the changing times”.

Conclusion

Despite all the controversies and inter-religious unrests, the current ruling and its effect can be taken as a complete victory of Secularism. No wonder why our first Prime Minister, Mr. Jawaharlal Nehru described our Country as a Unity in Diversity. Jurisprudence and role of judges have been considered as a tool for social engineering to bring regulation, reform, protection and modification of provisions to solve social problems through legal approach which in turn comprises analytical, natural, sociological and historical schools. The role of judges in maintaining all of this is impeccable and irreplaceable. The application of different schools jurisprudence determine a great deal of effect in today’s contemporary interpretation of legislation and the law making.

References

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