In its application asking the Supreme Court to let it return the land adjacent to the disputed site, the Centre is, effectively, asking the Supreme Court to do what it has objected to at least three times in the last 16 years on the ground that this would disturb “peace and tranquility.”
Most recently, the five-judge Constitution bench in March 2003 made it clear that while the 67.03 acres adjacent to the disputed site “vest in the Central government” its use depended on the “outcome of the litigation in respect of the disputed property.”
The bench argued that the adjacent land needs to be left undisturbed to ensure that if Muslims succeed in the title suits case, they should not be “denied access.” And added: ..”We must bear in mind that when the dispute is not yet finally resolved, maintenance of communal harmony and peace is absolutely needed.”
In fact, the bench relied upon the 1994 Ismail Faruqui judgment that had examined the Constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993, through which the Narasimha Rao government had acquired the land after the demolition of the Babri Masjid.
The 2003 judgment highlighted the 1993 judgment which said: “…in the event of the Muslims succeeding in the adjudication of the dispute requiring the disputed structure to be handed over to the Muslim community, their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by exercise of rights of ownership of Hindu owners of the adjacent properties.”
In February 2002, VHP supporters had gathered outside Ayodhya, stating that Shila Pujan or stone ceremony would be done in March. In March, petitioner Mohd Aslam had moved the Supreme Court with a plea that the Pujan be stopped. On March 13, 2002 — days after the attack on kar sevaks on the Sabarmati Express in Godhra and the riots that followed — a three-judge bench ordered that no religious activity should take place on the adjacent land. A year later, on March 31, 2003, a Constitution bench passed a similar order.
Largely relying upon these two observations of 1994 judgment, the Constitution bench said that the two acquired lands are “intrinsically connected” and cannot be separated until the title suit was adjudicated. For, if the land is transferred under Section 6 of the Act, during the pendency of the hearing, “further complications may arise.”
One of the most significant observations of the SC came when it countered the Union of India’s argument that Bhure’s petition was vague and that interim relief given by the SC was “beyond the scope” of the Ismail Faruqui order.
The SC rebutted this: “The Preamble to the Act itself discloses that the objective of the enactment is maintenance of harmony between different communities in the country and to maintain public order. If the acquisition has been effected on that basis not only of the disputed land but also of adjacent land, this thread will run through the entire proceedings and we must bear in mind that when the dispute is not yet finally resolved, maintenance of communal harmony and peace is absolutely needed.”
“It is no doubt true that when passions run high, demands are made for several types of activities being carried on in the adjacent land. If any such activities are carried on in such land, even before the resolution of the dispute pending before the court, it may affect the harmony and tranquility that has prevailed for so long,” the SC had said.
“Above all, status quo has been maintained from 1992 onwards and no activities as are set out in the course of the application have been required to be done so far. When for a long time, a particular state of affairs has prevailed — as in the present case for over a decade — and when the adjudication of the disputes which are pending before the High Court are reaching final stages, it will not be appropriate to disturb that state of affairs,” the SC said.
The Constitution bench added that the “preservation of property” in its original condition is “absolutely necessary” to “give appropriate reliefs to the parties” on the termination of the proceedings before the courts. “…Therefore, we do no think that this is one of those cases in which it becomes necessary to disturb that state.”