Babri Masjid and Supreme Court of India
The five-member constitution bench of the Supreme Court began their 1045 page verdict by aptly calling the Ayodhya dispute almost as old as the idea of India. Then the bench reminded us of our ancient civilisational values of assimilation, inclusion and harmony as well as modern constitutional principles of secular democracy that our founding fathers had followed despite the counter-currents in the stormy days of Partition. At the fag end too, the court stressed on the constitutional principle that ‘all forms of belief, worship and prayer are equal’ and those who ‘interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation’.
Explaining further in the ‘conclusion of title’ of the 1500 square yards of the disputed land in Ayodhya, the bench insisted that ‘the court does not decide title on the basis of faith or belief but on the basis of evidence’. Nevertheless, the bench noted several times that the Muslim side did not question the Hindu faith about Lord Rama’s birth in Ayodhya. They had only contested the claim that he was born precisely under the central dome of the demolished Babri mosque and denied that the mosque came up over the ruins of an earlier temple dedicated to the deity.
The bench rigorously examined the findings of Archeological Survey of India and its earlier scrutiny by the Allahabad bench of Lucknow High Court. Though the ASI excavations (sans the area where the idol of Ramlala is ‘virajman’ since 1949) in 2003 found elaborate ruins of earlier non-Islamic structures of different periods of our history, the SC bench did not find categorical confirmation or conclusive proof of an ancient Rama temple underneath. So the purported original sin of the founder of the Mughal dynasty or his henchmen; construction of a mosque on the man-made ruins of an ancient temple dedicated to the popular icon of Hindu faith and glory, was not established.
ASI report was inconclusive
The bench rigorously examined the findings of Archeological Survey of India and its earlier scrutiny by the Allahabad bench of Lucknow High Court. Though the ASI excavations (sans the area where the idol of Ramlala is ‘virajman’ since 1949) in 2003 found elaborate ruins of earlier non-Islamic structures of different periods of our history, the SC bench did not find categorical confirmation or conclusive proof of an ancient Rama temple underneath. So the purported original sin of the founder of the Mughal dynasty or his henchmen; construction of a mosque on the man-made ruins of an ancient temple dedicated to the popular icon of Hindu faith and glory, was not established.
The contest over possession
However, the bench noted the long-drawn communal contest over the piece of land during the colonial period. “On the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857. As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857.”
So, despite the lack of evidence of total and continued possession by the Muslims, the existence of a functioning mosque was accepted.
In contrast, “The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. However, there is evidence to show that namaz was offered in the structure of the mosque and the last Friday namaz was on 16 December 1949”.
So, despite the lack of evidence of total and continued possession by the Muslims, the existence of a functioning mosque was accepted.
Violation of rule of law in between 1949-1992
Moreover, the bench noted the reasons for intermittent discontinuity. “The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship. ”
Commenting on more recent development, the bench noted: “During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.” Observing that,’ there was no abandonment of the mosque by the Muslims’, the lordships pointed to the court’s constitutional duty. “The Court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.”
The twist in logic
However, the logical underlining of verdict took unexpected twists and turns at the remedial order. First, bench set aside the ‘three-way bifurcation’ of disputed land ordered by the High Court in 2010 as both’ legally unsustainable’ and ‘not feasible’ in terms of ‘maintaining public peace and tranquility’. As the ‘disputed site ad-measures all of 1500 square yards’, it’s division ‘ will not sub-serve the interest of either of the parties or secure a lasting sense of peace and tranquility’, the bench argued.
So, the lack of evidences for continued and total possession, particularly before and after 1857 (year of first Hindu-Muslim joint struggle for Independence) when both Sunni Mughal power and Shia Nawabs in Oudh were powerless and the mutiny-struck colonial Raj had unfolded it’s divide and rule policy, became crucial for the denial of the land title or part of it to Muslims. Perhaps this the first time, the law on adverse possession or lack of it as well as religious texts and colonial historiography have been used to this extent to buttress majority faith-based claims.
True, hawks at both sides have succeeded in stalling an out of court consensus, thus binding the hands of the court. But the invocation of article 142 of the constitution empowered the court to find a more imaginative and equitable way of sharing based on the syncretic tradition of Ayodhya, still practiced despite marginalization by the excluvists in both communities as well as letters and spirit of the constitution.
But the claims of the majority faith were accepted because ‘on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims’. So the bench decided to hand over ‘the disputed site comprising of the inner and outer courtyards’ to Ram Lala Virajman, a party to legal contest as a ‘juristic person’ or a rightful holder of the property in law.
Further, the deity is granted human agency of his ‘next friend’, or VHP-controlled Ram Janan bhoomi Nyas to represent Him and maintain his rights. The claim of Nirmohi Akhara, a much older Monk order of Ram-Sita bhakta but not controlled by the Sangh parivar for traditional sevait rights stands rejected, though it has been given a berth in a government-run trust.
The bench first condemned ‘egregious violation of rule of law’ and ‘calculated’ crimes against the Constitution by the Hindu zealots in between 1949-92. But in queer turn in their infinite acumen and wisdom, finally awarded the criminals what they had asked for; exclusive right to the disputed land, simply because the latter claimed to be the rightful representatives of the presiding deity and in turn, the majority faith. The logic only legitimises the postmodern vandals and de facto acceptance of their misdeeds.
So, the lack of evidences for continued and total possession, particularly before and after 1857 (year of first Hindu-Muslim joint struggle for Independence) when both Sunni Mughal power and Shia Nawabs in Oudh were powerless and the mutiny-struck colonial Raj had unfolded it’s divide and rule policy, became crucial for the denial of the land title or part of it to Muslims. Perhaps this the first time, the law on adverse possession or lack of it as well as religious texts and colonial historiography have been used to this extent to buttress majority faith-based claims.
What does it mean?
The bench first condemned ‘egregious violation of rule of law’ and ‘calculated’ crimes against the Constitution by the Hindu zealots in between 1949-92. But in queer turn in their infinite acumen and wisdom, finally awarded the criminals what they had asked for; exclusive right to the disputed land, simply because the latter claimed to be the rightful representatives of the presiding deity and in turn, the majority faith. The logic only legitimises the postmodern vandals and de facto acceptance of their misdeeds.
Nonetheless, the bench found it ‘ necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship’. “Having weighed the nature of the relief which should be granted to the Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya.” But again, it is almost in the line of what the Sangh Parivar spin-masters had been selling for long: there is only one Ram Janamsthan, so vacate it and make a mosque elsewhere.
This Devil’s bargain, now legitimised in law, may be less sinister than the Partition but still gargantuan. With the zombie’s appetite is now being whetted, it’s not likely to stop at Ayodhya but march forward to Kashi and Mathura.
Courtesy: enewsroom.in