Babri Masjid Issue

Deconstructing the 30 Sep. Verdict on Babri Masjid Ayodhya dispute

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Would Islamic jurists please stand up

Lucknow: The whole nation, and to an extent the whole world, particularly those affiliated with law, are engaged into understanding the ‘legal sanctity’ as to how a site of Babri Masjid, in Ayodhya, Faizabad, UP, India, where Babri Masjid had once stood since 1528 until its demolition on Dec 6, 1992, been partly declared as a Hindu deity and the place in question i.e. the area being that of Babri Masjid as a 120X 80 feet structure, two third has been given to the Hindu side. Needless, to say that, in this course, the three judges bench, comprising of Justice SU Khan, Justice Sudhir Agarwal and Justice DV Sharma, also gave a sanction, to the demolition, as had-the Babri Masjid stood, such a judgement could never have been conceived. Isn’t it now a fact that demolition has made the work easier and quite summarily, the ends have fully justified the means! Who can forget the Congress PM (late) Narsimha Rao, when he had proudly said, at Congress session, Surajkund in 1993, that the situation (read after demolition) would help resolve the issue. His words, now after 18 years, could find their meaningful conclusion.

So, after a wait of 18 years, finally, Courts have given a legal legitimacy to an act, which was once called as a ‘national shame’ by the Supreme Court, in the famous Ismail Farooqui V’s Union of India 1994 case. There is, ironically, no note of condemnation on that act of vandalism, of Dec 6, 1992, in the whole 8700 pages of the order of Sep 30, 2010-by the full bench at the Lucknow bench of Allahabad High Court, UP. India

Finally, for the record sake, it has now been upheld that the area beneath the central dome of the erstwhile Babri Masjid is the property of Hindus as per their faith that Lord Rama was born on that exact place, and the other area inside the outer courtyard of Babri Masjid, which had Ram Chabutara and Sita Rasoi would be the property of Nirmohi Akhara (one of the parties of the dispute). Thus, two-thirds would be going to the Hindu side and one third to the Muslim side. This, of course, could happen as Courts have the inherent power to change a title suit into a partition suit. Something which none of the contesting parties had ever wanted! Quite understandably, now both the sides are compelled to knock at the Supreme Court. The Hindu side for the claim of the rest of one-third and the Muslim side for the whole. Now, what is required in the earnest is to see and decipher as to how could the Courts come to such a conclusion and what else is to be followed-so as to meet the said precedent-primarily for the sake of survival of the rule of law in the country.

Before taking a view on the Sep 30 judgement it would be important to emphasise that in India, from the day of the enforcement of the Constitution, the position as settled, is that a part from Waqf (trust) properties (a part of Muslim Personal Law) even mosques, churches, temples and gurudwaras can be acquired by the government. The only exception to it is that, if any acquisition, by which any important and integral religious practice of a community or sect, concerned with the site, is to be extinguished, that cannot be acquired. Apart from this, it is also judicially settled, in India that a property which cannot be acquired, is also at the same time, not to be lost by any adverse possession. What however would require no more further emphasis, on this subject, is an elaboration that in view of this settled law, no Waqf property is excluded in any manner from the acquisition by the state.

Thus, in conformity with this dictum the acquisition of mosque is being upheld by the Courts. To refer to a recent case it has also come to light that in Lucknow itself sometime back in 1978, the Lucknow bench of Allahabad High Court, in a Division bench judgement had upheld such an acquisition.

It would be also pertinent to specify a fact that the acquisition of the outer courtyard of Babri Masjid in 1991, acquired by the then UP CM Kalyan Singh, which was later to be quashed by the full bench comprising Justice SHA Raza, Justice Brijesh Kumar and Justice SC Mathur, on Dec 11, 1992, had its majority opinion that the masjid can be acquired and that the said acquisition was quashed holding the same to be malafide, on the grounds, that the suits were already pending, and that in order to circumvent the decision of the suit the said acquisition was made.

Closely on the line, in 1994, the Constitution bench judgement, at the Supreme Court, regarding Babri Masjid known otherwise as Ismail Forooqui 1994 case, the majority opinion is that a temple, mosque, church and gurudwara can be acquired. However, for a little solace there is an embargo that for such acquisition, there would be, a national purpose and extraordinary situation. The bench had comprised of Chief Justice MN Venkatachaliah, Justice AM Ahmadi, Justice JS Verma, Justice GN Ray and Justice SP Bharucha. Justice Bharucha had opposed the acquisition, in his minority judgement, owing to a fact, that Parsis in India, have only one place of worship, and the law, would make Parsis even lose their only temple! Justice Barucha was a Parsi by religion.

It might be also known, in the same vein, that the minority judgement, comprising of Justice AM Ahmadi and Justice SP Bharucha had quashed the whole acquisition of 1993, of the area around Babri Masjid, by the Narsimha Rao government, and had not, at all, subscribed to the majority view that religious places can be acquired. They had also termed the Presidential reference, to the SC, to find out if ever there was a religious place beneath Babri Masjid, to have been as ‘anti-Muslim’.

But now in this post-Sep 30 scenario it can be anyone’s guess that these two terms (national purpose and extra ordinary situation) can be most easily be whittled down, by any bench in the country, observing that such an acquisition is covered by the same. Therefore, now in the expression of the said standard, via all previous verdicts, no religious property is left immune from an acquisition as such! Except for temples though! Hence, the debate gets into an ever interesting groove. Thus, throwing wide open legal avenues, to be decoded in the wake of Sep 30 order.
A thorough close-knit analysis of the Sep 30 judgement, hence, would open a unique vista attributed with regards to a temple, as sanctified as a concept in Hindu Law, as the same has been upheld in the same judgement, that a temple is itself a juristic person, and therefore something, which cannot be acquired. This happened on account of faith as an inalienable part of Hindu Law-and now validated by the Courts too. For the whole premises of the temple, the concept as propounded, is that the temple is the place of abode of God and as such if a temple is acquired, the very place, the abode of God, stands vanished and that is the extinction of an important religious practice. Therefore, on this analogy, the observation is that; even by dispossession or discontinuation- the right of temple is not lost and one may see the justification in the said judgement upholding the claim of the temple, despite recording a categorical finding that the building in question (Babri Masjid) was built at least 400 years ago and it was a mosque. However, the place itself being a deity, its right had not come to an end. Hindu Law as any other personal law, whether it be Muslim or a Christian Law, enjoys its guarantees under Article 25 of the Constitution.

Under Hindu Law, as observed in this case, there is no necessity of there being any idol in any temple. If any open space of land is worshipped by certain persons, the divinity is ascribed to the said place itself and the said place assumes the definition of a temple, and thereby, gets immuned from an acquisition and also to be lost by any adverse possession. As a matter of fact if one goes through law as prevalent in India there is much unanimity as regards legal concepts pertaining to religious properties.

It would be also necessary to bring into focus as to how the debate of (Hindu) faith was contested, which had led to the Sep 30 order. It was in July 1989 when a case numbered as Suit No. 236 of 1989 was filed by the first friend of Bhagwan Ram Lala and others. The first friend being a retired Justice Deoki Nandan Agarwal. It was for the first time the concept of place as that itself being a deity was introduced. Prior to this there was not even such a whisper, that a place itself could be a deity. DK Agarwal had died and was later represented by TP Verma. It can also be said here that if one is said to have taken birth on a certain place is something absolutely different in comparison to a place, which is said to be a deity by itself!

It is also, indeed quite contrary, to find out that TP Verma, once under cross-examination, by the Muslim side, had stated on record that aastha (faith) shall be dealt to be of the period when it is first spoken-off, meaning thereby, that if something is said in 19th century, that such a belief is existing since 18th century then, that aastha would not be deemed to be that of 18th century but of 19th century i.e. when it was spoken-off, came into public saw the light of the day. “Thus, examining aastha on the touchstone of this proposition no such aastha in this case is at all available, in any record, before that of 19th century, and I had canvassed this point even in my written submission but the Court ignored the same,” reflected Mushtaq Ahmed Siddiqui. He is the Muslim side counsel.

In this wake now what would warrant an immediate attention, is a similar case with almost the same reckoning. It is about a masjid, which had been taken over by Sikhs, in Shahidganj Lahore, and converted into a gurudwara, and the Muslim side had sought its possession back. The case was finally to be adjudicated by a three judges bench judgement, Privy Council AIR 1940 (P.116)-the case of Muslim side was argued on the same basis but the Privy Council refused to extend the concept of juristic personality, in totality, to the mosque! The Sep 30 judgment, has however, opened up the same case for a much greater scrutiny and for a far deeper probe.

Interestingly, after delving more into the said judgement, it has been learnt that there were three previous judgements of Lahore High Court which were relied upon, treating the mosque to be a juristic personality, and as such immuned from the adverse possession, and accordingly, the Privy Council has not overruled the same! It had, later on, observed that it was not desirable for them to make such a comment. However, it had held the masjid to be a legal person for purpose of bringing the said suit and acquiring and holding property. Deconstructing the said order, it can be accrued that the concept of juristic personality had been bifurcated into three parts and for two parts a masjid is a juristic personality, however, for the third part, it is not. This 1940 Privy Council judgement has as a matter of fact, been recognised to be a good law, and it was, therefore, evenly referred in the famous Ismail Farooqui 1994 case too.

MA Siddiqui, it is learnt also did produce excerpts from five books which were carried in original, along with their English translations, to plead his case, through the plea of Istishab-e-haal, a situation, obtaining for a long time which has not to be interfered unless very cogent reasons and evidence against the same exist in that regard. But the Court did not take any notice of the same.

Now under these new circumstances, and in order to protect not only the claim of Babri Masjid but other mosques and other important Muslim shrines in India, labour is to be put to bring out the same at par to such a juristic personality. It is felt that Islamic jurisprudence is definitely not so poor, as to countenance such an eventuality. Hence, now the prime need of hour is that the learned persons of eminence, more particularly persons conversant in Islamic jurisprudence, need to sit and brain storm to this aspect in order to bring out an Islamic position on the same which would lead to the protection of any mosque/shrine in the country. The answer is to be brought out in the light of Qur’an, Hadis, Ijma, Qiyas, Fiqh and from the five schools of Islamic jurisprudence. This is only how, perhaps the rule of law, would be saved. The onus today in totally on the Muslim side. Would the Islamic jurists please stand up?

The writer is an attorney at Lucknow High Court

This article appeared in The Milli Gazette print issue of 16-30 November 2010 on page no. 7

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