Seriously flawed'

Published : Oct 22, 2010 00:00 IST

Rajeev Dhavan: This was a title suit. The court has turned this into a partition suit.-SHIV KUMAR PUSHPAKAR

Rajeev Dhavan: This was a title suit. The court has turned this into a partition suit.-SHIV KUMAR PUSHPAKAR

Interview with Rajeev Dhavan, constitutional expert.

DR RAJEEV DHAVAN is a senior advocate of the Supreme Court and the author of several books on Indian judiciary. His recent books include Reserved: How Parliament Debated Reservations 1995-2007 (Rupa) and Publish and Be Damned: Censorship and Intolerance in India (Tulika Books). He also runs the Public Interest Legal Support and Research Centre (PILSARC), a forum to create awareness about legal and constitutional matters among the youth. He has a keen interest in the Babri Masjid case and has represented the Babri Masjid Action Committee before the Supreme Court.

In this interview to Frontline, he shares his concern about the judgment delivered by the Lucknow Bench of the Allahabad High Court on September 30.

You have described the High Court verdict as panchayat justice. Can you explain?

This was a title suit. The court has turned this into a partition suit. The question of title squarely lies with the Sunnis. They had taken over the mosque for over centuries. They have never lost titles. There was a continuity of ownership even if not prayer. On December 22, 1949, some idols were placed there. It was absurd to suggest they came in as a consequence of divination. Fortunately, the court has not gone that far. Therefore, the simple question was whether the Sunni Waqf Board filed its case within the limitation of 12 years. It was filed on December 18, 1961, within the limitation without adversely affecting the title of the Sunnis.

The judgment appears to have unsuited the Sunnis on the basis that the title was never there and that, in fact, they have actual rights only over part of the property. This was argued by none, requested or asserted by none, and came from the sweet will of judicial imagination.

Does the judgment also vindicate the destruction of the mosque in 1992 and the illegal installation of idols at the site in 1949? Does it hint that the very legal foundation of the existence of the masjid was infirm?

There is a social significance to this particular finding. A mosque was destroyed on December 6, 1992. It was on Sunni land. On the basis of this judgment, it would appear that the entire status of the destroyed mosque was a legal chimera. In other words, the mosque was legally not supported to be there at all, and no act of sacrilege was committed. This is a convenient legal way of absolving the worst incident of mosque destruction in the world in our times.

Therefore, it is not just a narrow legal question, but one that goes to the heart of Muslim entitlement.

Does the one-third division of the property prove the court's inability to decide the title conclusively? Does the one-third arrangement give both Hindus and Muslims room to appeal for absolute ownership of the disputed land?

If there was even an instance of panchayat justice without the benefit of panchayat consensus, it was this. One dissenting judge [Justice Dharam Veer Sharma] was in favour of Hindus on moral and historical sentiments. The other judge, Justice Sudhir Agarwal, seems to adopt the Hindus' sentimental entitlement. Justice S.U. Khan has some difficulty with the facts and ground realities. Yet the majority judges seem to have worked out a so-called workable solution for the future. Workable for whom? The core area goes to the Hindus. One-third goes to the Muslims, yet to be identified, and one-third goes to the Nirmohi Akhara, who but for its suit has no entitlement at all. It is not even half a division of the property. Two-thirds to Hindus and one-third to Muslims on the site that belongs to Muslims. This panchayati solution has no legal foundation, no moral justification, and it is not without insult to the claim of one community.

Is the judgment based more on faith than on legal evidence? Can the Hindus' moral right to prayer be turned into a legal right over property?

Let me explain why it is not a good foundation for the future. What emerges from this highly intuitive panchayati decision is not just a matter of legal technicality. No legal suit for title is a technical matter. But is this a secure foundation for the future? Can there ever be truth and reconciliation on the basis of this verdict, which evaporates the rights of Muslims altogether? When Nelson Mandela saved South Africa, a Truth and Reconciliation Commission gave an opportunity to those who were guilty (in this case those guilty of destroying the mosque) to confess, to be contrite, to recognise the truth of the sacrilege, and then negotiate. On what basis will Muslims negotiate? They have been left empty-handed, and the correct approach would have been to recognise Muslims' right to ownership. Hindu sentiment has a right to pray, and then with civility, request Muslims to make accommodation.

Does archaeological evidence point to the fact that Babar destroyed a temple to build a mosque? Was the court correct in concluding, on the basis of archaeological evidence, that the mosque was built on the ruins of a temple?

There is a great historical mischief underlying the judgment. One of the issues was whether Babar destroyed a live temple to build the mosque. One view is if that was so, the land becomes haram, weakening the case for Muslims' prayer. This mischief was started by B.B. Lal on behalf of the Sangh Parivar. The court seems to have come to the conclusion that there was a live temple there because pillars were found. This would require a lot of imagination, to make it the basis of such a historical conclusion. Justice S.U. Khan is uncomfortable with archaeological evidence. Other judges seem to accept it. In fact, archaeological excavations were badly done, not following the appropriate trench method. The correct conclusion has been demonstrated by B.P. Mandal and Shireen Ratnagar. These temples belong to a much earlier era. With this doubt, the moral denudation of the Muslim case proceeds on an even shakier foundation.

Is the three-way split a workable solution for maintaining peace and dignity? Will Muslims accept denuding of their right? Can a minority community be forced into a legal solution in which its full rights have not been recognised?

This is not a proper judgment. It records what happened in court by way of argument and proceeds not only to confirm a Hindu case on issues that no legal court was competent to answer but to destroy the moral and legal foundations of the right of Muslims. The Places of Worship (Special Provisions) Act, 1991, prescribes a cut-off date, August 15, 1947, making it mandatory to respect rights that existed on that date for religious sites other than the Babri Masjid. We should not hear Sangh Parivar fundamentalists saying Ayodhya today, Mathura tomorrow, and Varanasi the day after.

The judgment is so seriously flawed that history will be ill-served if these errors are not set right. People outside India compare the destruction of the Babri Masjid with the destruction of the Bamian statues by the Taliban. Secular governance is incapable of remedying the travesty of destroying the mosque and denying even a shred to the people who owned the masjid and the site. India's democracy requires that minorities must be treated with the dignity and respect they deserve.

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