Ayodhya Case: What Would an Ordinance Mean for the Govt & Oppn?

Ahead of 2019, the demand for an ordinance for construction of for Ram Mandir in Ayodhya has taken centre-stage.

(Photo altered by The Quint)

Ahead of the 2019 general elections, the promise of vikas seems to have taken a back seat, and the issue of building a Ram Mandir in Ayodhya has taken centre-stage.

After the Supreme Court adjourned the hearing in the Ayodhya Title Suit Case on 29 October 2018, pushing the matter to January 2019, the political tides across the country have shifted, with the demand for an ordinance echoing from across the right wing.

As the Vishwa Hindu Parishad (VHP), Rashtriya Swayamsevak Sangh (RSS) and the Shiv Sena marched to Ayodhya on Sunday, 25 October, upping the ante for the construction of the Ram temple at the disputed site, here are the latest developments in the demand for an ordinance:

The Long-Pending Dispute

Mir Baqi, commander of Mughal emperor Babur, reportedly built the masjid in 1528. It is believed that the mosque was built by demolishing a Ram temple that previously existed there.

The first time the disputed site went through legal scrutiny was in 1885, when Mahant Raghubir Das filed a plea in Faizabad district court seeking permission to build a canopy outside the disputed Ram Janmabhoomi-Babri Masjid structure. His plea was, however, rejected. In 1949, idols of Ram Lalla were placed under a central dome outside the disputed structure. The Nirmohi Akhara then filed a suit in 1959 seeking possession of the site.

The matter started gaining momentum in 1981 when the Sunni Central Waqf Board, too, filed a suit seeking possession of the site. After a local court ordered the government to open the site for Hindu worshippers, the Allahabad High Court ordered a maintenance of status quo in respect of the disputed structure in 1989.

On 6 December 1992, a group of Kar Sevaks chanting ‘Jai Sriram’ marched to the disputed site and demolished the Ram Janmabhoomi-Babri Masjid structure. Following the aftermath, which saw communal riots across the country, the ‘Acquisition of Certain Area at Ayodhya Act’ was passed in 1993 for acquisition of land by Centre in the disputed area.

On 24 October 1994, the Supreme Court said that a mosque was not integral to Islam.

Following multiple petitions and hearings, the Allahabad HC in a 2:1 majority ruled a three-way division of disputed area between Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla in September 2010.

Multiple pleas and hearings challenging the 1994 verdict and the 2010 verdict followed followed till 27 September, 2018 when the Supreme Court declined to refer the case to a five-judge Constitution bench.

In the latest hearing on 29 October 2018, the apex court fixed the Ram Janmabhoomi-Babri Masjid land dispute cases for January 2019 before an appropriate bench, which will decide the schedule of hearing.

29 October SC Order: When It All Began

The Supreme Court on 29 October fixed the Ram Janmabhoomi-Babri Masjid land dispute cases for January 2019 before an appropriate bench, which will decide the schedule of hearing.

A three-judge bench, headed by Chief Justice Ranjan Gogoi, said the appropriate bench will decide the future course of hearing in January next year on the appeals filed against the Allahabad High Court verdict in the Ayodhya land dispute case.

“We will fix the date of hearing of the Ayodhya dispute case before the appropriate bench in January,” the bench, which also comprised Justices SK Kaul and KM Joseph, said, as quoted by PTI.

Earlier, a three judge bench, by a 2:1 majority, refused to refer to a five-judge constitution bench the issue of reconsideration of the observations in its 1994 judgement that a mosque was not integral to Islam. The matter had arisen during the hearing of the land dispute.

An apex court bench headed by then Chief Justice Dipak Misra said the civil suit has to be decided on the basis of evidence, adding that the previous verdict has no relevance to this issue.

As many as 14 appeals have been filed against the high court judgement, delivered in four civil suits, that the 2.77 acres of land be partitioned equally among three parties – the Sunni Waqf Board, the Nirmohi Akhara, and Ram Lalla.

Political Key Players: Who Stands Where

The disappointment of the right wing after the SC verdict was clear. While many ministers and leaders said that the apex court is the supreme authority, others accused the court of playing at the hands of the Congress, almost openly questioning the independent nature of the Indian judiciary. The demand for an ordinance/law for the construction of the Ram Mandir gained momentum immediately after the verdict.

BJP:

The ruling BJP has openly supported the demand for the construction of the Ram temple, however, the reactions of the party on the demand of an ordinance have been unclear. While some leaders said that the Supreme Court must be respected, others openly demanded an ordinance to be brought in this regard.

Soon after the SC order adjourning the matter till January 2019, voices emerged within the BJP, demanding an ordinance for the construction of the temple.

Sanjeev Baliyan, quoted by PTI said, “I am surprised at the priorities of the court. I am of the view that the Ram Temple should be constructed. The government should explore all possibilities."

Subramanian Swamy too supported the demand.

"I'll raise it in the Parliament session. We should bring in an Ordinance proclaiming a law, which says that the 2.67 acres of land be given to a Hindu organisation," he told CNN-News18.

VHP:

VHP’s national vice-president Champat Rai, while addressing a gathering in Ayodhya, said that some “intelligent people need to be reminded” of the temple construction.

“The mobilisation you see today is just from 45 districts of Uttar Pradesh. Some intelligent people of this country need to be reminded that issue of Ram temple didn’t end on 6 December 1992,” Rai said.

RSS:

After the SC verdict, RSS chief Mohan Bhagwat, who had been openly urging supporters to wait for the court verdict, too publicly demanded that the government should pass a law to authorise the building of a Ram Mandir in Ayodhya.

“The place of Ram Janmabhoomi is yet to be allocated for the construction of the temple although all kinds of evidence have affirmed that there was a temple at that place. There is an obvious game-plan of a few elements to stall the judgment by presenting various newer interventions in the judicial process. It is in nobody’s interest to test the patience of the society without any reason.”

Mohan Bhagwat, quoted by PTI

Shiv Sena:

While the political relevance of the Shiv Sena in the state of Maharashtra seems to be dwindling compared to the BJP, the Sena's visit to Ayodhya was seen by many as an attempt to gain an upper hand over its ally while pressurising the the BJP.

Shiv Sena Chief, Uddhav Thackeray, who was on a two-day visit to Ayodhya, launched a scathing attack on the BJP over the issue of Ram temple:

“If you (BJP) had to go to a court (on the issue of Ram temple), then you shouldn’t have raked up the matter in your election campaigns and manifestos. You should have clearly said that ‘bhaiyyon aur behno’, please forgive us; this is yet another jumla by us. I have come to tell you not play with the sentiments of Hindus.” said Thackeray in Ayodhya.”

Uddhav Thackeray, Shiv Sena Chief

Congress:

The Congress, who has been accused of playing the "soft-Hindutva" card by many, has publicly reiterated that the country must wait for the Supreme Court to give a verdict on the issue. Congress leader Mallikarjun Kharge on Sunday said that parties were visiting Ayodhya only for political gains ahead of 2019 elections.

“Everyone’s going there due to elections. Who stopped Uddhav Thackeray from going there in past 4-5 yrs? On one hand, they’re friends with BJP and on the other they want to tell people they’re interested in constructing Ram Temple and are pressurising the government. People won’t be fooled.”

Mallikarjun Kharge, Leader, Congress

The Ordinance

While most of the political parties have a common demand – an ordinance – experts suggest that it might not be the ideal way forward.

An ordinance is a decree or law promulgated by a state or national government without the consent of the legislature. For an ordinance to be enforced effectively, it must not be in conflict with any higher law such as state or national law or constitutional provisions.

According to Legal Service India, there are three limitations with regard to the ordinance making power of the executive:

• The President can only promulgate an ordinance when either of the two Houses of Parliament is not in session.
• The President cannot promulgate an ordinance unless he is satisfied that there are circumstances that require taking ‘immediate action’.
• Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the ordinance are passed by both the Houses.

Effectively, therefore, ordinances can only last for six months or so before they lapse –unless they are ratified in Parliament, which in this case would be difficult to do in both Houses.

The Supreme Court has also taken a dim view of letting ordinances lapse and then re-promulgating them, which was something the current government had sought to do earlier during its tenure.

As a result, at best, this ordinance would be able to last six months, but with two Parliament sessions coming up within the next six months, it would be difficult to retain it legally.

Seshadri Chari, while writing for The Print, opined that bringing an ordinance in this matter may pit the Supreme Court of India and the President against each other.

“The option of resolving the Ayodhya issue through a bill in Parliament does not enjoy judicial immunity. The demand for an ordinance also is not an easy option as it will require the President of India to issue it only if the situation so warrants. Again, any such ordinance will have to be ratified by Parliament within six months and cannot be promulgated during the session. With the 2019 elections approaching, Parliament will be in session for less than six months. Also, the ordinance itself can be challenged in court thus bringing two Constitutional authorities, the office of the President of India and the Supreme Court in direct confrontation.”

Seshadri Chari in an article for The Print

Ordinance: A Dilemma for Congress Too

As the country faces general elections in 2019, issues like the farmers' crisis, jobs and economy, as of now, have been sidelined, with the Ram Mandir making headlines and becoming a political potboiler.

Moreover, Ayodhya falls in Uttar Pradesh, one of the most populous and politically significant states of the country, and having the highest number of lawmakers in the House. While the fate of the temple still lies in the hands of the Supreme Court, an attempt to placate the Hindu sentiments in Ayodhya is being made by the construction of a 221-metre tall statue of Lord Ram at the banks of River Sarayu.

However, bringing an ordinance will mean the ruling government disrespecting the Supreme Court, something contradictory to what the BJP has always portrayed itself to be.

The Congress, on the other hand, has remained largely neutral on the issue of Ayodhya, accusing the ruling BJP of politicising and polarising the issue and using it as a poll plank ahead of the 2019 elections.

An ordinance would also put the Congress in a dilemma, as supporting it will make it seem like they are openly supporting the temple demand – a move that might call into question its ‘secular’ stand. But opposing the ordinance, too, doesn't seem like a very good option, as it would only legitimise the BJP's claims that the Congress was always opposed to the construction of the temple in the first place.

(With inputs from PTI, Legal Service India and The Print)