Against settled principles'

Published : Oct 22, 2010 00:00 IST

Zafaryab Jilani: "The honourable judges have arrived at a finding... on the basis of faith and belief."-S. SUBRAMANIUM

Zafaryab Jilani: "The honourable judges have arrived at a finding... on the basis of faith and belief."-S. SUBRAMANIUM

Interview with Zafaryab Jilani, counsel for the Sunni Central Waqf Board.

ZAFARYAB JILANI, counsel for the Sunni Central Waqf Board in the Ayodhya title suit and convener of the Babri Masjid Action Committee (BMAC), is known for the poise and equanimity he displays in trying circumstances. His demeanour was no different when Frontline met him at his residence a day after the verdict of the Lucknow Bench of the Allahabad High Court on the Ayodhya title suit. He was constantly on the phone discussing the modalities of filing an appeal in the Supreme Court even as he interacted with visitors. We want to go about it as systematically as we have done in the six-decade-old judicial process in the High Court. The process should gather momentum in the next few weeks, he said before responding to questions on the verdict and the future plans of the Waqf Board and the BMAC. Excerpts from the interview:

Your initial reaction to the verdict was that it was partly disappointing. What exactly did you mean by that?

Let me start by placing on record the sense of gratification at having completed the legal process in the High Court after six decades. It was a long process marked by arguments over arguments. That this completion has happened is the satisfying part of the verdict. The disappointing part rests squarely on the fact that it has gone against the settled principles of law and evidence. The honourable judges have arrived at a finding not on the basis of facts or evidence but on the basis of faith and belief. In other words, a new category has been introduced into the judicial process. I have not seen any verdict from any court of the country, whether it is the High Courts or the Supreme Court, which is based on a category that has no connection to any of our time-tested laws and rules, including the Evidence Act or the Criminal Procedure Code.

But there is the argument that the court was grappling with extraordinary circumstances that needed extraordinary judicial interpretations.

Even if that contention is accepted for the sake of argument, there can be no doubt that such interpretations cannot go beyond the parameters of law as established in the country and as practised in the courts. But here you are deciding upon something as legendary as the birthplace of a god.

None of the Hindu texts, including Ramcharitamanas, considered to be one of the most authentic accounts of the life of Lord Ram, pinpoints the birthplace of Ram. I am of the firm view that the personality of Lord Ram is not at all in dispute. He has been described as Imam-e-Hind' by the great poet of the East, Allama Iqbal, who had composed the Tarana-i-Hind ( Saare Jahan Se Achcha Hindustan Hamara). But as far as my understanding goes, Hindu mythology has it that Lord Ram was born 12 lakh or 14 lakh years ago. Is it not a bit too much to pinpoint the location of the birth, as part of a modern judicial process, and that on the basis of faith and belief these many centuries later?

There is also the question as to when the belief on the janmasthan started. It does not seem that the belief was there before 1885 because Mahant Raghubar Dass of the Nirmohi Akhara is himself on record citing the structure as a mosque.

Another extraordinary step in the judgment relates to the theory of three-way division. Here, too, it is not clear what the rationale is or what principles have been cited to suggest partition of the land and premises. None of the parties had made a plea for a division of the land. And, moreover, it has been accepted that the idols were placed by extraneous forces inside the premises in 1949. Once that is accepted, the plea of the Waqf Board for the possession of the land after the removal of the idols becomes naturally strong. This has been presented to the courts forcefully since 1961, and even in 1995. But that plea seems to have not been considered at all. I am yet to see the full judgment but cannot think of any rationale for overlooking this plea.

Again, some of the campaigners for the Ram mandir in Ayodhya have made it clear that they will not allow a mosque even within the chaudhakosi parikrama, which will mean many kilometres away from the site. Already, there are suggestions that Muslims should be large-hearted and give away even the one-third they may get. For us, this is nothing short of calling for surrendering the mosque. We will not accept that.

You are, of course, planning to go in appeal to the Supreme Court. What if the apex court affirms this....

That is a hypothetical question, which is best left unaddressed at this point of time. Coming back to the merits of the High Court judgment, I would say it is a bad precedent to follow. What it would lead to is innumerable cases on the faith and belief principle. If this is taken as precedent, claims can be made on any piece of property or structure or land saying that it is the faith and belief of one party or the other that it was the birthplace or the abode of one deity or the other. It would practically be an unending process. Some of the important buildings that house our constitutional institutions could face such claims on the basis of faith and belief.

Before the High Court verdict, you said this would not be about Hindus or Muslims but would reflect the victory of the rule of law and independence of the judiciary. You also said the cases relating to the title and possession of the Babri Masjid were apparently between two communities but actually related to the secular fabric of the country. Looking back, what would you say now?

I do not find any reason to alter this statement. The verdict is indeed about the secular fabric of our country and the rule of law. And we are approaching the Supreme Court. We have firm faith in the independence of the judiciary. That is also the reason for the repeated appeals by leaders of the community that they will not condone any violence or wrongdoing as a reaction. As I had said, our judicial process provides the opportunity and remedy to any party to the dispute who may feel dissatisfied with the judgment as a whole or with any portion thereof to approach the Supreme Court. That is the recourse we are taking in the near future.

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