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Saturday, November 20, 2010

Ayodhya Verdict

Rupesh & Sanjay
A special three judge Bench of Allahabad High Court has pronounced judgment on Ayodhya dispute on Sep 30, dividing the disputed land into three equal one-third share to each plaintiff. By a 2-1 majority verdict, all the three contending parties-- Lord Ram, Nirmohi Akhara and the Wakf Board were declared joint title holders of the property. The deity, Lord Ram, regarded as a juristic person is awarded the land where the central dome of the Masjid stood and where the make shift temple exists now. The Nirmohi Akhara is awarded the Ran Chabutra and Sita Rasoi building standing in the outer courtyard of the premises. Sunni Wakf Board is allotted the area where Babri Masjid existed, same parts of inner courtyard and outer courtyard. The judgment is based on faith, historical use of premises by both the communities: Hindus and Muslims. It is made with the view that peace and harmony in the society is more important than " the upholding of law".

The Bench in unison rejected the petition of Sunni Wakf Board for possession of the Babri Masjid on the ground that it is a mere declaration and not for possession. So, therefore, it is time barred.

Justice Aggarval and Sharma held that Ramlala's suit filed in 1989 through his next friend (Devakinandan) was not time barred because it did not disclose cause of action. The suit should be rejected under order 7 Rule 11 of the civil procedure court. However, the judges chose not to reject the suit but rejected the Muslim contention that the suit time barred. Justice Aggraval also stated that ( under article 58 of the limitation act ) the suit must involve violation of a right. Since, there was no violation in 1989 suit he held that petition was not time barred.      

After independence, idol of Ram was surreptitiously placed inside the Mosque on 22-23 Dec 1949. The Congress party, which succeeded the British government did not take against the then local administration. However, the Prime Minister Jawahar Lal Nehru expressed anguish through a series of letters. ( The Babri Masjid Edited by A.G Noorani). In a telegram to Uttar Pradesh Chief Minister Govind Vallabh Pant  dated Dec 26, 1949, he called the incident as a " dangerous example" that could have "bad consequences." Nehru in his letter to his close friend K.G Mashruwala ( letter dated March 5, 1950), confessed that the district officer in Faizabad " misbehaved," but Pant did not take any definite action. In a letter dated April 17, 1950, to the UP Chief Minister, he wrote: " UP is becoming an almost foreign land to me.......I find that communalism has invaded the minds and hearts of those who were the pillars of the congress in the past. It is a creeping paralysis and the patient does not even realise it......It seems to me that for some reason or other, or perhaps (for) mere political expediency, we have been far to lenient with this disease....." .( Source-From Political Ayodhya to legal Ayodhya-Vidya Subrahmaniam-The Hindu).
Pandit Nehru might have felt deep distress but he along with communal elements of his party are equally responsible for what happened on the night of 22 DEC 1949.  

Justice Aggarval and Sharma held that Ramlala's suit filed in 1989 through his next friend (Devakinandan) was not time barred because it did not disclose cause of action. The suit should be rejected under order 7 Rule 11 of the civil procedure court. However, the judges chose not to reject the suit but rejected the Muslim contention that the suit time barred. Justice Aggraval also stated that ( under article 58 of the limitation act ) the suit must involve violation of a right. Since, there was no violation in 1989 suit he held that petition was not time barred.

Separate Judgment : Justice D.V Sharma who had broadly disagreed with his two fellow judges said that " the disputed site is birthplace of Lord Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as (the) birth place of lord Rama as a child. Spirit of divine ever remains present everywhere at all times for any one to invoke in any shape or form in accordance with his own aspirations and it can be shapeless and formless also".

On the status of the contentious site comprising inner and outer courtyard Justice Sharma said " It is established that the property in suit is the site of Janm Bhumi of Ram Chandra ji and Hindus in general had the right to worship Charan, Sita Rasoi, other idols and other objects of worship existed upon the property in suit. It is also established that Hindus have been worshipping the place in dispute as Janm Sthan i.e a birth place as deity and visiting it as a sacred place of pilgrimage as of right since time immemorial".

Regarding the building whether it was a Mosque and who built it, the judge said," The disputed building was constructed by Babar, the year is not certain but it was built against the tenets of Islam. Thus, it can not have the character of a Mosque."

Agreeing with the fact that Mosque was built after demolishing a Hindu temple, he said," the disputed structure was constructed on the site of (the) old structure after demolition of the same. The Archeological Survey of India has proved that the structure was a massive Hindu religious structure."

On whether the idols were placed in the building on the night of ( December 22/23, 1949, Justice Sharma said: " The idols were placed in the middle dome of the disputed structure in the intervening night of 22/23 of December 1949. It is also proved that the outer courtyard was in exclusive possession of Hindus and they were worshipping throughout and in the inner courtyard ( in the disputed structure) they were also worshipping. IT is also established that the disputed structure can not be treated as a Mosque as it came into existence against the tenets of Islam."

Citing a case of a Bombay High Court Justice S.U Khan, held that a suit for exclusive ownership can be decreed in favour of joint ownership provided joint ownership is proved. This was broadly agreed by Justice Sudhir Agarwal in his seperate judgment.

In the view of his findings Justice Khan in his 285 page judgment said," all the three parties (Muslims, Hindus and Nirmohi Akhara) are entitled to a declaration of joint title and possession to the extent of one third each and a preliminary decree to that effect is to be passed."

He said:" In the matter of actual partition it is only desirable but not necessary to allot that part of property to a party which was in his exclusive use and occupation. Accordingly, in view of peculiar facts and circumstances it is held that in actual partition, the portion where the idol is presently kept in the makeshift temple will be allotted to the Hindus, and the Nirmohi Akhara will be allotted land, including Ram Chabutra and Sita Rasoi. However, to adjust all the three parties at the time of actual partition, slight variation in the share of any party may be made to be compensated by allotting the adjoining land acquired by the Central government."

He said," my judgment is short, very short. Either I may be admired as an artist who knows where to stop, particularly in such sensitive, delicate matter I may be castigated for being so casual in such a momentous task. I have not delved to deep in the history and the archeology. This I have done for four reasons. First, this exercise was not absolutely essential to decide these suits. Second, I was not sure as to whether at the end of the tortuous voyage I would have found a treasure or faced a monster ( treasure of truth or monster of confusion worst confounded. Third, having no pretence of knowledge of history I did not want to be caught in the crossfire of historians. Forth, the Supreme Court, in Karnataka Board of Wakf Vs Government of India, has held as far as a title suit of civil nature is concerned, there is no room for historical facts and claims."

Justice Khan said:" As this judgment is not finally deciding the matter and as the most crucial stage is to come after it is decided by the Supreme Court, I remind both the warring factions of the following. The one quality which epitomized the character of Ram is tyag (sacrifice)." When Prophet Mohammad entered into a treaty with the rival group at Hudayliyah, it appeared to be abject surrender even to his staunch supporters." However, the Koran described that as clear victory and it did prove so. With in a short span Muslims entered the Mecca as victors, and not a drop of blood was shed."

Admiring Muslims' resilience after the demolition he said "Under the sub-heading of demolition, I have admired our resilience. However, we must realize that such things do not happen in quick succession. Another fall and we may no be able to rise again, at least quickly. Today the pace of world is faster than it was in 1992. We may be crushed"

Asking Muslims to make aware the world with the vision of Islam he said "Muslims must also ponder that at present the entire world wants to know the exact teaching of Islam in respect of relationship of Muslims with others. Hostility, peace, friendship, tolerance, opportunity to impress others with the Message, opportunity to strike wherever and whenever possible, or what? In this regards Muslims in India enjoy a unique position. They have been rulers here, they have been ruled and now they are sharers in power (of course junior partners). They are not in majority but they are also not a negligible minority (after Indonesia, India has the highest number of Muslims in the world.). In other countries, either the Muslims are in huge majority, which makes them indifferent to the problem in question, or in negligible minority, which makes them redundant. Indian Muslims have also inherited huge legacy of religious learning and knowledge. They are therefore in the best position to tell the world the correct position. Let them start with their role in the resolution of the conflict at hand." ( Source-The Hindu, 1st October).

Justice D.V Sharma's judgment favoring Hindus against Muslims is bound to deepen chasm between the two will endanger peace and harmony in the society. Distortion of historical facts and subjective interpretation of Limitation Act will erode faith in judiciary.

The majority judgment of S.U Khan and Justice Sudhir Agarwal based on faith and religion tends to bring reconciliation and rapprochement  amongst the contentious parties. It is well reasonable in the society which is badly torn with violence. However, 'Rule of the Law' says that concrete evidence should be the basis of any judgment. Democracy and constitution should not be thrown to the wind in adjucating any conflict whether it is between individuals and communities.                               

Going back into the history of litigation of Ram Janmbhoomi- Babri Masjid dispute it is found that Bigot Hindus have been fighting legal battle for possession of the disputed land for more than 100 years. The first suit was filed in 1885, by Mahant Ragubar Das, when he was refused the permission to build Ram temple on the land adjoining the Mosque. He filed title suit in a Faizabad court against the secretary of state for India, seeking permission to build Ram temple on the Chabutra. His suit was time barred. The Lordship asserted that demolition of temple in 1528 happened more than '300years' ago. This suit was revived in 1950, when the plaintiff Gopal Singh Visharad filed case in the Faizabad civil court. He stated in his petition that he was true worshiper and offer puja to the idols allegedly placed under the central dome of the Masjid and that the idols should not be removed.

The Nirmohi Akhara, filed suit in 1959, asserting that there was no Babri Masjid, no Mosque and no demolition of an earlier temple by Babar or anyone else. It is the owner of the Janmbhoomi, idols and the temple. Sunni Central Wakf Board filed suit in 1961, claiming the title of the land that Muslims have been offering Namaz. in the Mosque since it came to existence in1958. They have been illegally debarred from offering prayers there after installation of idols. The fifth suit was filed in 1989, by Hindu plaintiff on behalf of Bhagwan Shree Ramlala virajman for a declaration and possession.

Political And Judicial Failures
BJP and its allies VHP/RSS developed movement from 1982 to build temple known as " Ram Temple movement". BJP formally adopted the issue in June 1989 at its national executive in Palampur, Himachal Pradesh: " The BJP holds that the nature of this controversy is such that it just can not be sorted out by a court of law. A court of law..... can not 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 Ramjanmasthan handed over to the Hindus-- if possible through a negotiated settlement, or else, by legislation. Litigation certainly is no answer". ( Source: The winding paths of a temple down, Vidya Subrahmaniam and J. Venkatesan-The Hindu)

In 1986 Faizabad District Judge passed order to open the locks of the Masjid. This was a big victory for VHP which opened the way for it to perform Shilanyas on Nov 9, 1989. Thus, BJP-VHP-RSS combine got the right to build a temple on the disputed site. For this it was necessary that the Mosque should be brought down. The agitation was started with Mr Advani's Ramrath Yatra in 1990 and culminated in the demolition of Babri Masjid on Dec 6, 1992. Through all this congress government's position was like that of an onlooker.

Recently former Chief Justice of India A.M Ahmadi expressed the opinion in a seminar on "Ayodhya Judgment: Civil Society Response organised by the Institute of Objective Studies, New Delhi that the Babri Masjid could have been saved had the Supreme Court acted responsibly. He pointed out that the then Attorney-General Milon Banerjee had repeatedly urged the two- judge bench of justice M.N Venkatachaliah and Justice G. N Ray to appoint the central government as the custodian of the land where Kar Seva was suppose to be done. Mr Banerjee told the court that he had enough information about the Kar Sevaks would destroy the Babri Masjid. However, the court passed an order allowing a symbolic Kar Seva. (Source: Report- Supreme Court could have prevented Babri Demolition, says ex-Chief Justice Ahmadi-Vidya Subramaniam. Dated-24/10/2010-The Hindu.)

Hitorian Romila Thapar said on the judgment that this verdict is a political judgment. It reflects religious identity, lacks historical and archeological evidence. She asserted that this would create a wrong precedent in the court of law. Any land can be claimed by declaring it to be the birthplace of a divine or semi-divine being worshipped by a group that defines itself as a community.( The verdict on Ayodhya: A historian's perspective-Romila Thapar-The Hindu)

All the three judges on the bench have not taken note of the vandalism  of Babri Masjid on Dec 6, 1992. They have legalised and legitimised the demolition of the Babri Masjid as the divison of the disputed land is based on the fact that there is no Masjid on the contentious land. The Supreme Court in its judgment (1994) on demolition said " Within a short time, entire structure was demolished and razed to the ground. Indeed, it was an act of 'national shame'. What was demolished was not merely an ancient structure, but the faith of the minorities in the sense of justice and fair play of the majority. It shook their faith in the rule of law and constitutional processes. A 500-year-old structure which was defenseless and whose safety was a sacred trust in the hands of the State government was demolished."       

Different Views
Justice Rajendra Sachchar has said in his Article in PUCL Bulletin that the suit by the VHP/RSS should be dismissed under the limitation act. He said this in view of the Precedent of the case of the Masjid Shahidganj in Lahore decided by the privy council in 1940. "In that case a Mosque existed till 1762 but after that building came under Sikh rule and was being used as a Gurudwara. In 1935 Muslims files a suit to claim that building should be returned to  Muslims. The privy council, while observing, " Their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they can not, under the limitation act, accept the contentions that such a building can not be possessed adversely" and then went on to hold, " The property now in question have been possessed by Sikhs adversely to the Wakf and to all interests there under for more than 12 years, the right of the mutawali to possession for the purposes of the Wakf came to an end under Limitation Act."

Another reason he gives for the suit to be disallowed is that "common law rightful heir is debarred from the right of inheritance if he kills his ancestors. In this case, Masjid is demolished and so the criminals can not be allowed of their wrongful deeds, whatever the legal position may be".

Senior advocate Rajeev Dhavan disagreed with the judgment and said " This is panchayati justice which takes away the legal rights of Muslims and convert the moral sentimental entitlements of Hindus into legal rights". He further said " If this panchayati solution is to be endured, the degree of Muslim entitlements should have been left intact so that the site belonged to them".

He felt that the demolition of the Musjid was similar to the destruction of the Budhdha statues at Bamiyan in Afganistan. India's secularism is, therefore, majoritarian in nature with very little space for minority.

P.P Rao senior advocate agreeing with Mr Dhavan said " It is difficult to appreciate how the property can be divided by the court while dismissing the suits. This is nothing but a panchayati type of justice. " If the court accepts that the Wakf Board is entitled to one-third of land, it can not dismiss the suit. If the court dismisses the suits, it can not give only a portion of land. The court has gone beyond the prayers in the suits. When no one had asked for divison of the land, how can the court divide the land into three portions? There are prima facie ground for the parties to go for appeal to the Supreme Court as all of them are aggrieved over the division of the property". ( Source- Verdict draws flak and praise from experts- J Venkatesan and P. Sunderarajan-The Hindu)

Senior advocate Mukul Bohatgi said " I think it is a political kind of solution. It has given something to everybody. This seems to be the just possible solution in respecting the sentiments of all parties. We should be progressive on these issues and accept the judgment"

President of the All-India Bar Association Adish Aggarwala said," By this judgement everybody has won. No one has lost. This judgment can be practically implemented. Although it is a religious matter and somebody will go to the Supreme Court, I am certain that the Supreme court will affirm the judgment as it is in the interest of every citizen of India. This will reflect the spirit of religious tolerance."

Advocate Wasim Qadri said," It shows the respect and faith in the judiciary and democracy in this country.This is a victory of governance as per rule of law and constitutional schemes. Though I am not a party, being a like-minded person, this is one way of settling the dispute. This is a good signal for India."        

The judgment, however, raises some vital questions. First, democracy and secularism need to be redefined in unambiguous term? This judgment is a judgment or Panchayati? Third, where does the limitation act stand in this case? Fourth, separation of state from religion in very categorical terms is the need of the hour?

Democracy and Secularism was throttled several times first in 1949 when some bigot elements, in connivance with local administrative officials surreptitiously placed idols of Ram under the central dome of the Babri Masjid. It was followed by locking of the Masjid. Second rime in  1985, when the locks were opened and Hindus were allowed to worship. Third time, 1992 when the Babri Masjid was pulled down by communal elements of BJP-VHP/RSS combine. This majority judgment has not followed the principles of democracy and has kept 'faith' and 'religion' above "Constitution" and 'Law in the name of peace and tranquility in the society. To maintain peace and harmony, law and order is the duty of the executive wing of the state whereas judiciary is to see that 'justice' is delivered to individuals or community.

Violation of article 25 by destructors of Babri Masjid can not be condoned. Article 25 gives right to every citizen to profess practice and propagate religion. This is subjet to public order, morality and health. It should be read in connection with all other fundamental rights. It can not be limited to Hindus only. Muslims and other religions are equally entitled to article 25.

Intellectuals, historians, legal experts and judges and lawyers are vertically divided on how to resolve this issue. Issues are wide open: 1) Ram's birthplace? 2) Mosque was built after demolishing the temple? 3) who are responsible for 1992 demolition of Babri masjid?. The Supreme Court's judgment may go in favor of any of the contentious plaintiffs. It may uphold democracy, constitution and justice, but it can not afford to ignore social-religio aspect of the dispute because state, society and religion are badly intermingled. Our constitution does not separate religion as a private practice from the state. In a pluralistic society like ours, religion, faith, belief should be subservient to 'Rule of the Law'. 

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