Govt plea in SC could take a knocking

This is because the excavation order passed by the high court has greatly enhanced the possibility of expediting the disposal of the five-decade-old title suits which will determine the fate of the 0.33 acre disputed site on which the Babri Masjid once stood.

There is little scope for anybody to object to the excavation of the disputed site because the high court is very much within its powers in passing such an order. One of the issues framed in the title suits is to determine whether a temple existed on the spot prior to the construction of the Babri Masjid. While this issue is relevant to the claim that the spot is sacred to Hindus, it is not necessarily a clinching issue to decide the title suits.

The Government’s application, on the other hand, is clearly based on two unstated assumptions: first, though there have been day-to-day hearings on the title suits in recent months, the proceedings before the high court will drag on indefinitely; and second, it should therefore be permitted to hand over a part of the undisputed land to the VHP for temple construction.

The high court’s excavation order belies both these assumptions. The Supreme Court will therefore not want to create a situation in which there is simultaneously excavation on the disputed site to see whether a temple pre-existed there and on the undisputed land for the Ram Janmabhoomi Nyas to start the construction of the Ram temple.

As a corollary, the Constitution bench is expected to reiterate the interim order passed in March 2002 to maintain status quo in the acquired land in effect till the disposal of the title suits in the high court.

Senior advocates representing Muslim organisations before the Supreme Court, Rajeev Dhavan and Kapil Sibal, when contacted, said that they would not raise any objection tomorrow to the high court’s excavation order. Dhavan however added suggestively: ‘‘The timing of the high court order is insidious.’’

The issue of the excavation order may well figure in tomorrow’s proceedings but, strictly speaking, it is irrelevant to the task before the five-judge bench of interpreting the main Ayodhya judgment of 1994 delivered by a bench of the same size. The 1994 verdict upheld the acquisition of the 67 acres in the wake of the Babri Masjid demolition.