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Journalism of Courage
The divinity of Ram Janmabhoomi was not lost even though Babri Masjid was built over the temple which predated it, and thus no one could claim title over the site by adverse possession, the counsel for Ramlalla told the Supreme Court on Wednesday.
Senior advocate C S Vaidyanathan, appearing for the deity, told a five-Judge Constitution Bench headed by Chief Justice of India Ranjan Gogoi that the legal position has been that the deity is immortal, and that even if an idol is broken or stolen, another image can be consecrated since divinity is not lost.
He was replying to Justice S Abdul Nazeer, who had asked, “What happens to a Wakf property which is vested in God? Can it be alienated?”
Vaidyanathan told the Bench, also comprising Justices S A Bobde, D Y Chandrachud and Ashok Bhushan that as per Mohammedan law recognised by courts in India, the Wakf property can be alienated. “Mohammedan law in India does not accept the inalienability of a mosque,” he said.
But that was not so in the case of a Hindu deity, whose property cannot be alienated, he added. The senior counsel said a Privy Council decision to this effect had been upheld by the Supreme Court.
On the Ayodhya temple, Vaidyanathan said the Sunni Wakf Board was claiming title by adverse possession. “I am saying there was a temple there, and no one else can claim title,” he submitted. Justice Chandrachud asked how he was stating that if there was a temple at the site, its title cannot pass. Vaidyanathan replied that “sanctity of a temple will remain even if it was destroyed”.
“The temple”, he contended, “is invested with a character, or Res extra commercium (Roman law doctrine that refers to things beyond commerce, which cannot be brought or sold)”.
Justice Chandrachud then pointed out that the Calcutta High Court had in a decision said that alienation of property of a Hindu deity was all right if it was for the benefit of the deity.
Vaidyanathan said that “property cannot be taken out of an idol if it amounts to extinction of the deity itself”.
Justice Bobde remarked in a lighter vein that he should be careful that this argument that property of deity cannot be alienated is not raised when courts have to deal with unauthorised places of worship on public roads, etc. Vaidyanathan replied that he was only referring to places “which are deemed to be ‘punya sthala’, which have divinity, such as a ‘tirtha’, which cannot be changed”.
“This place (Ram Janmabhoomi) is divine because of the birth of Ram. That can’t be changed,” he argued.
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