September 21, 2020
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Ayodhya Verdict: Commentaries III

Ayodhya Verdict: Commentaries III
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1970-01-01T05:30:00+0530

How Should the Muslims React?

Javed Anand articulates the Muslim despair in the Indian Express:

It is a maxim of mature democracies that where there is no justice, there is no peace. Is there justice in India? It’s up to you, dear reader, to ask yourself that question. Have the victims of communal mass killings — Nellie, Assam (1983), Delhi (1984), Malliana, Meerut (1987), Bhagalpur (1989), Mumbai (1992-93), Gujarat (2002), Kandhamal, Orissa (2008) — got justice? Have the masterminds, the main perpetrators of mass crimes or the policemen guilty of partisan conduct been punished? What prospects of a verdict on the crime committed in Ayodhya on December 6, 1992, during the life-time of many of the main accused?

In the last week or so the media has discovered a magic word: reconciliation. Nelson Mandela has shown the world that in certain circumstances there could be an alternate route to peace — Truth and Reconciliation. But in the land of the Mahatma there is no Mandela in sight and the demand of the hour is reconciliation minus justice, minus truth. 

The Constitution of India does guarantee the security of life and property to all citizens. But the institutions of secular India do not take that constitutional obligation too seriously. “Apni jaan kis ko pyari nahin hoti? (Who does not value his life?),” says my friend Asif Khan. So it seems that India’s Muslims are reconciled to a “reconciliation” out of fear for their life and limb. Triumph of majoritarianism?

...In the best interests of the country and the community itself, Muslims must gift away even the one-third of the plot that for the moment is legally theirs. The disputed plot in Ayodhya, which millions of Hindus have come to believe as the birthplace of Ram Lalla, is absolutely the last place where the battle for the Idea of India — secular or majoritarian — must be fought. 

The legal opinion:

Rajiv Dhavan in Mail Today:

The Muslims correctly argued that the entire theory of destruction of a Hindu temple by Babur is traceable to the Imperial Gazetteers which are not based on any historical source but on local belief. It is tolerably arguable that the three judges, faced with the gigantic task of presiding over this mass of materials and documents, lost the wood for the trees. By contrast when the Privy Council dealt with the loss of the Shahid Ganj Mosque to Maharana Ranjit Singh, and this was accepted in a judgment of 1855, it wrote a six page unanimous judgment saying that it was too late to open any controversy. The site now belonged to the Sikhs and the 19th Century judgment was binding (in lawyer’s language res judicata). The easiest thing in the world for the three judges would have been to follow a similar course for the Babri Masjid site, grant legal title to the Muslims, accept the 1881 judgment as res judicata and declare that the Muslims had not lost the site between 1949 and 1961 by which the time limitation had past; and the Hindus could not claim adverse possession. Curiously none of the judges accepted this simple argument which would have disposed off the case. 

It cannot be overlooked that this was a title suit. Most of the other issues were not legal issues in a strict sense. Justices Khan and Agarwal treated the case as a partition suit dividing the property which nobody had asked for...

...Maybe on appeal, the Supreme Court will be able to clear up this mess and secure ‘peace and honour’ on a more just and secular basis. With this controversy over, Parliament’s law of 1991 that all other sites will observe the status quo which prevailed on August 15, 1947 should be respected. Bad theology, doubtful law and false ideology do not portend well for the future.

The same case law had earlier been cited, before the verdict, by Justice (retd) Rajinder Sachar:

3. The Privy Council while observing “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and in violability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely”, went on to hold: “The Property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Limitation Act.“ On the same parity of reasoning even if temple existed prior to the building of Masjid 400 years ago, suit by VHP etc has to fail”.

In response to our queries on Justice Sachar and Rajeev Dhavan's criticism, only  the following short note received so far from law professor Dr P. Chakravarti offers a possibility that the HC judgment could be upheld by the SC:

  1. Waqf Board could only file a Title Suit (Islam is a modern religion, unlike Hinduism, or in this case, more appropriately the Ram-bhaktas who claim that Ram was born there much, much before the advent of Islam). Their claim dates back to a specific date when the mosque was built
  2. If it can be proved that the mosque was built as a result of "conquest through invasion", as per current international law, it will not be a valid ground to hold the title to property. On the other hand, the 1949 incident, shameful though it may be, is "trespass" on what can arguably be described as property held illegally
  3. As against 2 above, the Hindu claim is based on faith and therefore an entirely different legal reasoning has to be employed for determining the case when it comes to it, as it involves not individuals but the faith-system of an entire community according to which this is the land on which Ram was born.
  4. It is established in Indian law, as Rajeev Dhavan's article also affirms, in addition to other links you have blogged, that deities can be juristic persons. And it is being argued that Ram was born (they don't have to specify when) much before the mosque was built. Even the land itself could be treated as a deity.
  5. Even the Waqf is not in clear adverse possession of the disputed land for 20 years or more, unlike the Privy Council case, without any opposition (the Hindus have been opposing the Mosque, and praying at the same disputed site, for which there is record even in Imperial Gazetteers, as the Dhavan article above testifies. That is enough.).
  6. ASI report can be relied upon by the court -- it does not have to independently check its veracity, and the burden of proof that it was cooked up would be for other litigants, and the issue is addressed in the judgments -- as proof that a temple existed before the mosque was built.
  7. A detailed perusal, for which unfortunately I don't have time right now, would show what reasoning was adopted in the three judgments.
  8. The 1991 law that all other sites will observe the status quo of August 15, 1947 -- which only had one exception, Ayodhya -- would ensure that the above is not treated as a precedent, which is why it was a law with foresight which, if applicable to Ayodhya, would have saved us all the bother of all this bloodbath.

The question posed in my first post -- and more specifically on Twitter -- though remains: Even if we take it that the above reasoning (or a variant thereof) holds in the SC, what if the mosque had not been demolished? Would the court have ordered demolition? A part demolition?

Interestingly, arguing from the other side, S. Gurumurthy, in his concluding article on the judgments in the New Indian Express, actually offers reasons why they are unsound in law: 

So the settled legal position is this: even if parties, like the Ayodhya parties, who have filed suit asserting exclusive rights against one another, ask for partition, the court cannot grant it; and in no event the court can do it without the parties asking for it. None of these judicial rulings seem to have been noticed by the two judges. Had one of the parties asked for partition, the other party would have brought the case laws to the court’s notice. That is why law requires that the court should decide no issue that is not put to the parties. An order contrary to this principle is, in law, without jurisdiction. Civil law pundits would cite the old maxim of Coram Non Judici to say that the courts — read Justice Khan and Justice Agarwal — have no jurisdiction to do what they have done.

Now that they have passed the judgment, the judges will have to write a decree in accordance with the judgment. Assume that the judges can write a decree in the Hindus’ suit giving them less than their claim of 1/3 share. The suits of Muslims and Akhara having been dismissed, how could a decree be written in their favour? If no decree could be passed in their favour in their suits, they cannot get the 1/3 share at all. And no decree could be passed in the suits of the Hindus in favour of Muslims and Akhara! Therefore, the 1/3 gift by the two judges to them each will be only on paper. So a new battle will start only at the point if the two judges attempt to write the decree for two-thirds of the disputed land in favour of the Muslims and the Akhara whose suits stand dismissed.

In the same newspaper, the other luminary close to the Sangh parivar, the redoubtable Subramanian Swamy weighs in:

The fundamental question before us is: Can a temple and a masjid be considered on par as far as sacredness is concerned? Relying on two important court judgments that hold the field today, the answer is ‘no’. A masjid is not an essential part of Islam, according to a majority judgment of a Constitution Bench of the Supreme Court.

In the famous Ismail Farooqui vs Union of India case (reported in (1994) 6 SCC 376), the Supreme Court had observed: ‘It has been contended that a mosque enjoys a particular position in Muslim law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah…and any person professing Islamic faith can offer prayer in such a mosque, and even if the structure is demolished, the place remains the same where namaz can be offered’. (para 80).

The Constitution Bench rebutted this contention. The Bench stated: ‘The correct position may be summarised thus. Under Mohammed law applicable in India, title to a mosque can be lost by adverse possession…A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India’. (para 82).

Thus what was wrong in the demolition of the Babri Masjid on December 6, 1992 was that it was unauthorised by law and hence a criminal offence. Otherwise any government depriving the Muslims of the Babri Masjid is within law, if the government decides to do so in the interest of public order, public health and morality (Article 25 of the Constitution). This is the position in Islamic law as well since in Saudi Arabia the authorities demolish mosque to lay roads. Even the mosque where Islam’s Prophet Mohammed used to pray was demolished for a road to pass through!

And he, ominously, concludes on this note:

Even if a temple is in ruins as the ASI had found, or destroyed as Ram temple was, any Hindu can sue on behalf of Lord Rama in court for recovery! No such ruling exists for a mosque. That is, the Ram temple on Ramjanmabhoomi has a superior claim to the site than any mosque. This the fundamental truth in the Ayodhya dispute. This truth will apply to Kashi Vishvanath and Brindavan temple sites as well.

Constitutional expert and senior Supreme Court advocate P.P. Rao, on the other hand, is clear and unambiguous:

Not one of the judgments can stand strict legal scrutiny. They have raised more questions than they have answered. Whose property did they divide and amongst whom and who wanted such a division? How could they award one-third share each after dismissing the suits of Nirmohi Akhara and Sunni Waqf Board? Who dedicated the land to Ram Lalla and when? In legal terms, the judgments are incorrect, but innovative. They are liable to be reversed on appeal. The affected parties have decided to move the Supreme Court, keeping the door open for settlement. We should thank God that they did not take to the streets to settle scores. Reposing faith in the judiciary is the wisest thing to do in a country governed by the rule of law. The parties apart, members of the two communities at large deserve praise for their restrained response to the verdict.

The role of the Congress since 1949

Rasheed Kidwai, in the Telegraph, provides an overview:

Decades later, in 1986, when Rajiv Gandhi was Prime Minister and the Congress was in power in Uttar Pradesh, the fast-paced events leading to the opening of the lock surprised even the BJP, which highlighted the Congress’s role in a White Paper published after the Babri Masjid was demolished.

Under the heading “The case for opening the lock — a contrast”, it asked sarcastically: “How is it this case moved at such a speed? How did the government acquiesce in this case? How did the Faizabad court allow the appeal (to open the lock) in two days when the Hindus had been pleading for 37 years? How did the Doordarshan cameras click the opening of the lock within an hour of the court order? All these questions have one answer, the government is not against such things and they can, and do, happen.”

Through 1986-1989, Rajiv Gandhi, his home minister Buta Singh, the then Uttar Pradesh chief ministers Veer Bahadur Singh and N.D. Tiwari kept trying to occupy the Ayodhya centre stage, coming up with plans. In 1989, the government even allowed the shilanyas (foundation ceremony) at the site. Somehow, each of these measures boomeranged.

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