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Friday, January 28, 2022

Religion over law

Neither side in the Babri Masjid case is keen on a judicial solution. So far, the courts themselves have, troublingly, adopted an approach that privileges religious sentiment

Written by A G Noorani |
Updated: December 8, 2017 1:00:25 am
Religious texts were quoted to prove that the masjid was no masjid in the Islamic law and the Hindu religion prevailed over the law of limitation. (C R Sasikumar)

One is at a loss to understand why the Supreme Court took up for hearing appeals in the highly-charged Babri Masjid case. In truth, neither side is keen on a judicial intervention, whatever they may say in public. The BJP said so when it raised the issue in its Palampur Resolution of June 11, 1989: “It just cannot be sorted out by a court of law. A court of law can settle issues of title, trespass, possession etc. But it just cannot adjudicate as to whether Babar did actually invade Ayodhya, destroy a temple and build a mosque in its place. .. The sentiments of the people must be respected and Ram Janmabhoomi handed over to the Hindus — if possible through a negotiated settlement, or else by legislation. Litigation certainly is no answer”.
However, since 1950, both sides have pursued their cause in civil suits raising issues of law and fact; on title and adverse possession. Significantly, on June 11, 1989 itself, L. K. Advani said, “I am sure it will translate into votes” in the 1989 election.

Two precedents are apposite. On May 2, 1940 the Privy Council rightly rejected the Muslims’ claim to the Shaheedganj Mosque, though a deed of dedication of 1722 existed. But from 1762, the structure was occupied by the Sikhs. The Privy Council ruled, “It is impossible to read into the modern Limitation Acts any exception for property made waqf for the purposes of a mosque”. It held the scales evenly. “There has never been any doubt that the property of a Hindu religion’s endowment — including thakurbari — is subject to the law of limitation”. The Privy Council deprecated introduction of “expert advisers” and ancient texts.

So, did the Supreme Court on 16 April 2004 in Karnataka Board of Wakf vs. Government of India and Others (2004): “As far as a title suit of civil nature is concerned, there is no room for historical facts and claims.” The Mecca Masjid was built by a saint in the 14th century. The Government of India acquired it in 1900 under the Ancient Monuments Preservation Act, 1904 (later the Ancient Monuments and Archaeological Sites and Remains Act, 1958). The Muslims’ suits on title were dismissed on the principle of adverse possession by the government. The Shaheedganj Gurudwara still stands tall in Lahore.

The Allahabad High Court not only ignored these rulings, giving primacy to faith over law, but flouted a unanimous ruling of the Supreme Court in 1994. The Babri Masjid has existed at Ayodhya since 1528. It was demolished on December 6, 1992. Parliament enacted the Acquisition of Certain Area at Ayodhya Act, 1993. On January 7, 1993 the president sought the Supreme Court’s advisory opinion. Section 4(3) of the Act abated all pending suits in respect of the Masjid. This was struck down unanimously by the five judges on the ground that it wiped out the Muslims’ case on adverse possession, even assuming that a temple existed on the site formerly. The court declined to give the advisory opinion.

A full bench of the Allahabad High Court went against these rulings. The president’s question rejected by the Supreme Court read: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid … in the area on which the structure stood?” (Ismail Faruqui & Ors. vs. Union of India & Ors. [1994] 6 SCC 360, page 385). Yet, the Allahabad High Court ordered the Archaeological Survey of India (ASI) on 5 March 2003 to answer: “Whether there was any temple/structure which was demolished and mosque was constructed on the disputed site?” On that single ground of defiance, the High Court’s judgments invite a clear rejection by the Supreme Court. The case can then proceed, if at all, strictly on the facts and the law.

By a weird order on September 30, 2010, Justices Sibqghat Ullah Khan and Sudhir Agarwal ordered a tripartite partition of the masjid. The portion where Shri Ram’s idol is kept is given to Hindus, the Nirmohi Akhara gets a portion including the Ram Chabutra and Sita Rasoi and Muslims get the leftovers. No defined area is assigned to them. Justice Dharam Veer Sharma rejected the Muslims’ case in toto.

When the appeals came up for admission on May 9, 2011 Justices Aftab Alam and R. M. Lodha found the judgment “strange”. No one had asked for the partition. This stemmed from the high court’s basic approach in giving primacy to religion over the law of the land. Religious texts were quoted to prove that the masjid was no masjid in the Islamic law and the Hindu religion prevailed over the law of limitation. Agarwal and Sharma held that the masjid was erected on the site of a demolished temple. “The rule of adverse possession is not applicable according to Hindu law”.

They two judges held: “Once we find that by way of faith and traditions, Hindus have been worshipping the place of birth of Lord Rama at the site in dispute, we have no reason but to hold in a matter relating to such a kind of historical event that for all practical purposes, this is the place of birth of Lord Rama.”

This approach inspired Agarwal and Sharma’s deep excursion into the past, beginning with Mohammed bin Qasim’s invasion in 712. A litany of “Muslim” outrages followed. “Attack, demolition and construction of mosques and madarsas in place of temples and religious institutions had taken place for the last about 1,100 years,” Sharma said.  Agarwal clutched at a book by an Austrian traveler Josef Tiefenthaler who had visited the site around 1766, quoting him profusely and crediting him with identifying Ram’s place of birth. Agarwal called him an “Australian Christian priest” and agreed with him that it was not Babar’s general Mir Baqi but Aurangzeb who built the Babri Masjid. The book based this on hearsay. “Others say that it was constructed by Babar,” it noted.

The Narendra Modi Government seeks to use the courts to enforce the BJP’s triple agenda — uniform civil code, abrogation of Article 370 and a Ram temple at Ayodhya. It will not enforce the Supreme Court’s verdict in case it goes in favour of Muslims. Its eyes are set on the 2019 elections.

The writer is a constitutional expert and commentator

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