The struggle over the Babri Masjid since Independence has only ever travelled one way, in the Hindutvavadi direction. The functionaries of this young State, high and low, played their part in helping this happen. First, a district magistrate connived in getting idols of Ram smuggled into the mosque in December 1949, thus inventing the ‘reality’ of Ram worship in a mosque. Then the Congress government headed by Rajiv Gandhi opened the gates to the mosque in 1985 and allowed full-fledged worship. Thus a medieval mosque continuously in use till the mid-1930s was prised open for Hindu worship. This is uncontroversial: whether or not you believe the sangh parivar’s assertion that the Babri Masjid was built atop a razed Ram mandir and irrespective of the authenticity of Ayodhya’s claim to be Ram’s birthplace, the fact that the mosque was encroached upon with the connivance of the State is indisputable.

When the mosque was razed in 1992 by politically mobilized vandals in an act of brazen illegality, a makeshift mandir was established overnight on the site. In a twist worthy of Kundera, the mosque disappeared, leaving a mandir behind. Unlike most magic tricks, though, this needed no sleight of hand, just the shameless complicity of the State.

When the Central government decided to acquire the site in the interest of public order, its decision was appealed before the Supreme Court. Gary Jeffrey Jacobsohn, a constitutional scholar, has a sharp account of the Supreme Court’s reasoning in this matter. In his judgment, the judge, J.S. Verma, writing for the three-judge majority, ruled that acquiring the property of a mosque did not constitute an abridgment of a Muslim’s right to freedom of religious belief and practice. Verma argued that while religious practice was protected, it was only essential religious practice that could claim protection. And while worship was clearly essential to faith, worshipping in a mosque was not since Muslims could offer namaz anywhere. Ergo, mosques were not a part of the basic or essential practice of Islam.

Consider the surreal implication of this verdict in the context of the demolition; not only is an existing mosque first encroached upon, then razed, not only does Hindu worship continue on the site, but one of the consequences of this vandalism is also an apex court judgment that suggests that mosques, all mosques, are no longer protected by Articles 25 and 26 of the Constitution because they aren’t part of the basic furniture of Islam. It’s worth noting that this was a majority judgment from a five-judge bench; in the words of Jacobsohn: “[T]he two dissenting judges, both of whom were Muslims, had an understanding of the obligations of Islamic practice that differed sharply from their three Hindu colleagues in the majority.”

So, instead of a majoritarian campaign of violence and destruction (which led to the mosque being razed and thousands of Muslims being attacked and killed in the wake of the demolition) being punished, Muslims found themselves a) minus one mosque, b) the victims of vicious, orchestrated violence and c) at the receiving end of a judgment that made their places of worship an optional extra, not sacred places protected by their constitutional right to religious practice.

More was to follow. In 1996, the chief justice, Verma, reviewed a set of high court verdicts that had quashed the election victories of Shiv Sainiks on the ground that they had solicited votes in the name of religion, something strictly forbidden by the Representation of the People Act. It wasn’t Verma’s decision to uphold their elections that was problematic; it was the reasoning he offered for the verdict. Verma’s desire not to find against the Shiv Sainiks was reasonable: elections underwrite legitimacy in a democracy and striking down an election is not something a court wants to do. Instead of confining himself to arguing that the strictest standards of proof were required to strike down the elections and that those grounds weren’t met, Verma chose to define Hindutva in a way that invoking its rhetoric wouldn’t attract the provisions of the RPA.

Verma argued that “the term Hindutva is related more to the way of life of the people in the subcontinent. It is difficult to appreciate how in the face of prior rulings the term Hindutva or Hinduism per se, in the abstract can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry or be construed to fall within the prohibition in... the RP Act”.

In the majority judgment on another case in 1996, Verma went to unusual lengths to establish that Hindutva was normally understood as a synonym for Indianization, not a faith community of Hindus, even quoting a Muslim theologian out of context to achieve this object. It’s worth listening to the argument at length.

The Wahiduddin Khan quotation went like this: “The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianzation. This strategy, briefly stated, aims at developing a uniform culture by obliterating differences between all the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem.”

What Verma didn’t quote was the rest of the essay where the maulana makes his opposition to the imposition of a uniform culture clear: “If we insist on uniculture, the results will be disastrous.” A few pages later, Maulana Wahiduddin Khan argues for the “general acceptance of pluralism. But upholders of this principle have first to contend with the problem — nay, threat — of ‘cultural nationalism’... serious minded people regard this movement as a genuine threat to the integrity of the country”.

Yet the court came to the conclusion that Hindutva has nothing to do with Hindu fundamentalism or sectarianism. It quoted a Muslim theologian and took his description of a political strategy as an endorsement of it. It ignored the fact that in the same essay the theologian saw this strategy as a threat to India’s composite culture. It ignored the even more important fact that the “obliteration of cultural differences” was directly contrary to Article 29 of the Constitution that gives minorities the right to conserve their cultures.

Thus by the end of the century, the majoritarian mobilization that led to the destruction of the Babri Masjid had its principal ideological claim — that Hindutva was a form of nationalism, not religious sectarianism — seemingly endorsed by the republic’s apex court.

Now, on the eve of the Allahabad High Court’s judgment on the case, the Supreme Court has intervened to postpone the verdict till it decides on a petition to defer the judgment in favour of an “amicable settlement”. This has happened after the high court itself dismissed a petition for postponement as frivolous, even going to the extent of fining the petitioner. Should the high court judgment be deferred beyond October 1, one of the judges will retire and the case will have to be heard afresh.

The Supreme Court’s decision to defer the high court judgment on the eve of the high court judgment was a split decision, with the judge, H.L. Gokhale, arguing that even a one per cent chance of reconciliation needed to be taken because the issue was of such moment that if there was unrest after the high court judgment, the people of India would blame the Supreme Court for not exploring every option for settlement. Given that traffic has only flowed one way in the Babri Masjid dispute for the last 60 years, it’s hard to see what is left for the Muslim parties to this dispute to concede, short of accepting the status quo where an extemporized temple has replaced the mosque. To accept that arrangement would be to concede that majoritarian grievance backed by massive, illegal violence is above the laws of the republic.

There’s another possibility. The Allahabad High Court might rule in favour of the Muslim parties to that dispute, redressing decades of injustice, and should the matter be appealed, the Supreme Court might uphold that verdict. Such a resolution would make the point that no one, not even self-styled proxies for Ram, can violently change facts on the ground and then expect to have their goonery legitimized by the courts.