NB: A citation from Franz Neumann, Behemoth, The Structure and Practice of National Socialism; (1936, repub 1963, p 27). (The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice…
‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests… DS
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Unless the judiciary steps in quickly and firmly to plug the breach that D Y Chandrachud’s 2022 observation has opened, the threat of communal polarisation and associated violence can only increase
Who would have thought the mausoleum of Khwaja Moinuddin Chishti in Ajmer would one day be claimed as a Hindu temple? Yet the unthinkable has happened. A local court has sent notices to the Ministry of Minority Affairs, the Archaeological Survey of India (ASI), and the Dargah Management Committee about a survey to be conducted to ascertain whether there was a temple beneath it. This was in response to a petition.
One of the petitioners told the Indian Express that their plea was based on a book by Har Bilas Sarda, an eminent judge under British rule, where he claimed that “inside the cellar (of the mausoleum) is the image of Mahadeva in a temple where ‘sandal’ (Chandan) used to be placed every day by a Brahmin family”.
This development has taken place in the wake of communal violence in Sambhal in Uttar Pradesh. There too, the district court had ordered a survey of the Shahi Jama Masjid to ascertain whether it had been built by destruction of a Hindu temple. Four people have died up to now in police firing in Sambhal and a minor injured in the ensuing violence.
The violence in Sambhal was the direct fallout of the alacrity with which the district judge ordered access to the mosque and the survey team reached the site on the same day. Perhaps district judges feel empowered to pursue such cases on the flimsiest of claims by the reversionary reading of the Places of Worship (special Provisions) Act 1991 in the Gyanvapi case by the former Chief Justice of India D Y Chandrachud in 2022. Chandrachud’s 2022 observation has not only opened a can of communal worms; they have since gone crawling to different parts of India.
The 1991 Act was adopted by Parliament to avoid creating new disputes and raking up controversies, long been forgotten by the people, to preserve social harmony. It clearly stated that “no person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof”. It was agreed that the Ram Janmabhoomi-Babri Masjid dispute was to be the sole exception. All other historical disputes about temples, mosques, churches, etc. were to be frozen as on August 15, 1947, when India gained Independence — laying down historical burdens….
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