Sharique N Siddiquie
The communal divide in a secular country like India has always been an irony, especially when our Constitution guarantees the freedom of faith and belief as a fundamental right. The astounding figure of approximately 25,000 deaths due to communal violence in the post Independence era, till 2003 to be specific, can put a question mark on our secular credentials.
The demolition of Babri mosque which took place on December 6, 1992 and the bloody communal riots that followed will always remain a stark reminder of the threat that communal incidents pose.
It has been eighteen years since the demolition of the Babri mosque and the Allahabad High Court verdict pertaining to the ownership of the disputed site is finally out. The nation which was waiting eagerly for a verdict lapped up the decision as ‘just’ or ‘balanced’ and ‘satisfying’ because of its populist nature, completely oblivious of the fact that Allahabad HC verdict seemed not so much based on facts as much as being designed to avoid communal disturbance.
Commoners hailed the verdict as a sensible decision and Hindu organisations called it a victory of Lord Ram, demanding AIMPLB (All India Muslim Personal Law Board) to concede their share of one-third of land for the construction of a grand Ram Temple in order to strengthen communal harmony in the country. Though AIMPLB announced on the very same day that it will be approaching Supreme Court against the verdict, it has been widely seen as their stubbornness.
What everyone failed to see was that rather than acting as a court of law delivering its verdict purely based on facts, evidence and arguments, the three-member bench of Allahabad High Court acted as the custodian of the country’s law and order situation and delivered a verdict to defuse tension. It was a decision of a ‘Guardian Judge’ than a custodian of law.The Verdict
Since the Ayodhya title suit was first filed in 1949, it has taken the court over sixty years to come out with a verdict on the most controversial and communally sensitive case of our times. Though the verdict was hailed by the propagators of communal harmony, it left a sour taste in the mouth of puritans who didn’t expect the court to bend before the beliefs of a community instead of heeding the evidence provided to it.
The Lucknow bench of Allahabad High Court ruled that the disputed site be divided into three equal parts each going to the Nirmohi Akhara, the Sunni Waqf Board and ‘Ram Lalla’.
The court also ruled that the disputed site in Ayodhya is indeed the birth place of Lord Rama according to the beliefs of Hindu community giving the legal rationale for this in the judgement.
The HC ruled, “The building in dispute was constructed after demolition of Non-Islamic religious structure, i.e. a Hindu temple.” However, one of the judges on the three-member bench, Justice SU Khan did not support this. He ruled, “No temple was demolished for constructing the mosque. Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque.”
Justice Khan also ruled that “for a long time till the construction of the mosque it was treated/believed by Hindus that somewhere in a very large area of which premises in dispute is a very small part birth place of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area specifically the premises in dispute.”
He added that “after some time of the construction of the mosque Hindus started identifying the premises in dispute as exact birth place of Lord Ram or a place wherein exact birth place was situated”.
The High Court unanimously ruled, “The idols were kept under the central dome of the disputed structure in the night of 22nd/23rd December 1949.”
The High Court also ruled that “the area covered under the central dome of the disputed structure is the birth place of Lord Rama as per faith and belief of the Hindus”.
Justice SU Khan further ruled, “The portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.”
The court however also said “that both the parties have failed to prove commencement of their title hence by virtue of Section 110 Evidence Act both are held to be joint title holders on the basis of joint possession.”
“Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping,” the order further added.The Loopholes
Let’s counter the arguments one by one by a simple logic and understanding of the law.
First things first. The case was a title suit to decide the legal ownership of the disputed site where none of the parties appealed for the division of the land.
Retired Additional District and Sessions Judge Syed Ahmed says that in a title suit, a court of law is authorised to decide on the ownership of the land and in no ways can it give a ruling that divides the land. The land should go to either of the warring parties but can’t be divided. But the Allahabad HC divided the land.
Another major point of contention is making ‘Ram Lalla’ a party in the dispute. This is the first instance in the history of legal disputes that ‘God’ has been made party in a title suit.
The ruling that the mosque was illegal as its construction was against the tenets of Islam also has a certain amount of doubt. Justice SU Khan in his verdict says, “The disputed structure was always treated, considered and believed to be a mosque and practised by Mohammedans for worship accordingly. However, it has not been proved that it was built during the reign of Babar in 1528.”
He further says, “In the absence of any otherwise pleadings and material it is difficult to hold as to when and by whom the disputed structure was constructed but this much is clear that the same was constructed before the visit of Joseph Tieffenthaler in Oudh area between 1766 to 1771.”
So, saying that the construction of the mosque was illegal under the tenets of Islam doesn’t hold much ground.
The argument that a temple structure was demolished in order to build a mosque was not corroborated with proper evidence and there is a possibility, as Justice SU Khan said in his verdict, that the mosque was constructed over the ruins of temples lying in that state for a very long time.
Shockingly, even though the court ruled that the idols were placed in the central dome of the mosque ‘forcibly’ on the intervening night of December 22 and 23, 1949 and they have not ‘appeared’ as claimed by the right wing litigants, it still ruled that the disputed site was indeed the birth place of Lord Ram as per the ‘beliefs’ of the majority community.
The ruling was a big jolt to the secular credentials of the Indian judiciary as it took the ‘beliefs’ of a particular section as factor in framing judgements. A substantial legal fraternity across the nation was outraged by this observation, calling it a wrong precedence. This might prove to be like opening of the Pandora’s Box.
If one analyses this particular part of the ruling, it becomes evident that the verdict might attract a barrage of similar cases wherein the ‘belief’ could enforce a favourable verdict.
Also, if the court believes that the disputed site was indeed the birthplace of Lord Ram then it clearly shows that the whole of disputed land should be granted to ‘Ram Lalla’. So the division of the disputed land is not logical.
The vagueness of the verdict can be easily summarised in the comments of jurist Tahir Mahmood, who says, "What had begun as a title suit ended up with a decree of partition. Religious beliefs and sentiments had triumphed over historical facts and legal precepts. The judicial anxiety reflected in the judgment is understandable but its legal tenability is not beyond reproach."
Though the legalities of the verdict will be discussed at length in the Supreme Court of India as the warring parties have already moved the apex court, it seems confusing for common masses to understand such ambiguities.The Future
Prime Minister Jawaharlal Nehru had written a letter to then Uttar Pradesh CM GB Pant, directing that the mischief be undone, three days after a Ram idol was placed under the Babri Masjid`s central dome in 1949, calling it "A dangerous example, which will have bad consequences."
Still, even though Faizabad`s Deputy Commissioner KK Nayar acknowledged that the installation of the idols was "an illegal act", he refused to remove them from the mosque, reasoning that "the depth of feeling behind the movement ... should not be underestimated."
As it turned out, Pandit Nehru was right in his assessment of the incidence that later brought a lot of bloodshed in the name of religion and much face loss for the country.
Though the verdict has saved the nation from possible communal tension, it left the minorities feeling cheated. The verdict also left a question mark the Indian judiciary which is regarded as the protector of our Constitution.
The verdict gave enough reasons to the detractors of secularism to sympathise with the wronged minorities.
By holding that the Babri mosque structure was illegal and against the tenets of Islam, the verdict, in a way also justifies its demolition at the hands of the Kar Sevaks. So, this judgement will surely have an implication on the case of the structure’s demolition where the top brass of the BJP are accused.
To round it off, it is no exaggeration if the verdict is termed as a major blow to the very secularism which it sought to preserve. It turned the vandals of 1992 into the heroes in 2010, clearly making a mockery of the 1994 declaration of the Supreme Court that said, “The Hindu community must bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold."
First Published: 8/5/2011 1:47:30 PM