Weak legal basis

The judgments of the Lucknow Bench smack of insufficient understanding of the secular tenets of the Constitution.

in New Delhi

ON September 28, the Supreme Court ended the uncertainty over the Ram Janmabhoomi-Babri Masjid title suit by rejecting the plea of one of the contesting parties for a postponement of the Allahabad High Court verdict in the case in order to facilitate a negotiated settlement. The three-judge Lucknow Bench of the High Court had earlier refused the petition seeking a deferment of the verdict.

The apex court's intervention enabled the Lucknow Bench to pronounce its verdict on the 60-year-old dispute on September 30. To many observers, this marked the end of one uncertain phase and the beginning of another.

The three separate judgments, given by Justices S.U. Khan, S. Agarwal and D.V. Sharma, have placed the future of India's secularism in a precarious and peculiar situation.

Several aspects of the Ayodhya judgment are a cause for concern. Critics of the judgment have noted the similarity between a panchayat's adjudication of a dispute and the Lucknow Bench's verdict. A panchayat aims to find a solution for the future instead of determining the rights of the parties to the dispute. In the light of this, one is at a loss to understand the legal basis for some of the major findings of the three judges.

Justice Sudhir Agarwal declared that the area below the central dome of the disputed structure, where the makeshift temple containing the idol of Ram stands, and is considered the birthplace of Ram as per the faith and belief of Hindus, belonged to the plaintiffs and shall not be obstructed or interfered with in any manner by the defendants.

Justice Khan said that for a very long time until the construction of the mosque, it was believed by Hindus that somewhere in the large area of the land under dispute there existed a very small portion which was the janmasthan of Ram. However, he said the belief did not relate to any specific small area in the 2.77-acre disputed land. He also said that Hindus started identifying the disputed structure, sometime after the construction of the mosque, as the exact birthplace of Ram or as a place wherein the exact birthplace was situated. Justice Khan also found that much before 1855, Ram Chabutra and Sita Rasoi had come into existence and Hindus were worshipping these. This was the basis for his finding that both Muslims and Hindus were held to be in joint possession of the entire premises under dispute.

Justice Khan found that for some decades before 1949, Hindus had started treating/believing the place beneath the central dome of the mosque to be the exact birthplace of Ram. He said the idol was placed for the first time beneath the central dome of the mosque in the early hours of December 23, 1949. But he does not explain its relevance in deciding that both parties could be declared as joint title holders of the entire disputed premises when it is clear that the installation of the idol in 1949 was illegal and should have been reversed immediately. In contrast, he assumes that an illegal act, if not corrected in subsequent years, vindicates itself.

Of crucial importance is how Justice Khan interprets the Limitation Act. When the suits (except suit No.5) were instituted, the Limitation Act, 1908, was in force. It was replaced by the Limitation Act, 1963. According to Justice Khan, under the old Act, suits for declaration of rights had to be filed within six years of the event. The Sunni Waqf Board filed its suit in 1962, within 12 years of the 1949 incident. This, according to him, made its suit time-barred. This interpretation appears to be debatable.

Justice Khan declared all the three sets of parties, Muslims and Hindu organisations and the Nirmohi Akhara, joint title holders of the property/premises in dispute, to the extent that the disputed land should be equally divided one-third share to each for using and managing the same for worship. However, in his final decree, he allotted the portion below the central dome to Hindus. Thus an illegal installation, followed by regular pujas, enabled Hindus to acquire the right to pray at a particular spot and secure the same spot through a court-directed partitioning of land. Justice Khan further directed that the Nirmohi Akhara would be allotted its share, including that part which is shown by the words Ram Chabutra and Sita Rasoi.

Both Justices Khan and Agarwal maintained that although all the three parties were declared to have a one-third share each, however, if while allotting exact portions some minor adjustment in the share had to be made then the same would be made and the affected party could be compensated by allotting some portion of the adjoining land, which has been acquired by the Central government.

Justice Agarwal's reasoning of the right to worship is bizarre. He held that the Hindu plaintiffs had a right to worship: The place in suit to the extent it has been held by this court to be the birthplace of Lord Rama and if an idol is also placed in such a place the same can also be worshipped, but this is subject to reasonable restrictions like security, safety, maintenance, etc. But it is not clear how he holds that the right to worship flows from a mere belief that a particular place is the birthplace of a god.

Even if it is conceded that historically there has been such a belief, an explanation of how the legal right to worship could be inferred from it would have been necessary. Justice Agarwal seems to condone the illegal placing of the idols inside the mosque in 1949 because it was based on such a belief.

SERIOUS IMPLICATIONS

This has serious implications for other religious sites, and the secular tenet of the Constitution faces the risk of being seriously compromised, let alone the challenge of maintaining inter-communal harmony.

It is amazing how Justice Agarwal held that the Muslim defendants had failed to prove that the property in dispute was constructed by Babar in A.D. 1528. A close reading of his judgment should show how he understands proof in such cases, and if there is proof that is convincing to him, what would have been the consequences for the parties' rights in the dispute.

Justice Agarwal also decided against the Muslim defendants the issue of whether they have been in possession of the property in suit from 1528 continuously, openly and to the knowledge of the plaintiff and Hindus in general, and if so, its effect.

It is inexplicable how he understood Hindus to be a monolithic community or considered the Hindu parties to the dispute as representative of the entire Hindu community. This is despite the fact that there is a sizable section of Hindus who think on secular lines and do not subscribe at all to the fanatical tenets of the Hindu parties to the dispute.

If Justice Agarwal did indeed write his judgment using this flawed approach, then its conclusions are questionable.

Justice Khan records in his judgment that in 1885 the Sub-Judge of Faizabad had conceded that there was no question of any doubt regarding the possession and ownership of Hindus over the chabutra (the platform outside the mosque which had Ram's feet embossed on it).

But the Sub-Judge had held that it was against public policy to permit the construction of a temple thereupon as in that eventuality there would be the clanging of bells and the blowing of conches by Hindus, and as Muslims pass that way it would lead to great conflict, resulting in the massacre of thousands of people. The court then was of the view that granting permission to construct a temple would amount to laying the foundation for communal riots.

An appeal against this judgment was dismissed by F.E.A. Chamier, the then District Judge of Faizabad, on March 18, 1886, saying that it was too late to remedy the Hindus' grievance as the event of building the masjid on a piece of land held sacred by Hindus had occurred 356 years earlier.

The second appeal was dismissed by Justice W. Young, the Judicial Commissioner of Oudh, on November 1, 1886. The penultimate sentence of the judgment in the second appeal was that there was nothing whatsoever on record to show that the Hindu plaintiff was in any sense the proprietor of the land in question. He also held that the civil authorities had properly dismissed the plaintiff's claim.

The Lucknow Bench appears to have achieved what could not be achieved in 1885. This must lead to a genuine introspection by our judicial authorities on whether historical evidence and precedents could be easily brushed aside to accommodate contemporary jingoistic pressures.