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Land and legality

Print edition : Feb 16, 2002 T+T-

The award of any part of the land adjoining the site of the Babri Masjid to a Vishwa Hindu Parishad-controlled body will amount to flouting the Supreme Court's clear ruling on the matter.

NO Prime Minister ever receives a delegation comprising persons who speak in the language of menace and worse, who had publicly attacked him. Atal Behari Vajpayee compromised himself by receiving the Vishwa Hindu Parishad delegation on January 27 and parleying with it for two hours. That was at the climax of its seven-day "sant chetavani (warning) yatra" which had culminated at Ramlila Grounds in New Delhi.

That was where, as The Hindu reported on (January 28), "an ultimatum was served on the government to hand over the land at Ayodhya or face a situation in which the 'sants' would forcibly take it over and build a Ram temple. Among those seated on the dais was RSS leader, Madan Das Devi who is the 'link' between the BJP and the RSS...

"Earlier in the morning, the Marg Darshak Mandal meeting of the VHP adopted a resolution demanding that the 67 acres of land acquired by the government in 1993 be handed over to the Ram Janmabhoomi Nyas (a VHP trust) to enable it to start construction of a Ram temple at the disputed site on any auspicious day after Shivratri of this year (which falls on March 12)... the sants made it clear that from February 24 onwards the call could be 'Ayodhya chalo' (let us go to Ayodhya) and thousands of 'devotees' with their families would start gathering there, with the crowds increasing daily" - a repeat of December 1992. The VHP's "international" general secretary Pravin Togadia said on February 5 that around a million people would march to Ayodhya and this decision had been communicated to Vajpayee.

Only a day earlier, on January 26, the leaders of the National Democratic Alliance had demurred to any appeasement. Under pressure from the RSS and from L.K. Advani, The Hindu reported, Vajpayee agreed to the course Advani had suggested - refer the matter to the Law Ministry. Whatever for? "To see if a way could be found for handing over the acquired land to the VHP-controlled trust". Hence Vajpayee's decision, announced at the meeting, to refer to Law Minister Arun Jaitley two points related to the Ayodhya question. One was the expedition of the case before the Special Bench of the Allahabad High Court in Allahabad. The other was "to look at legal and constitutional aspects" of handing over the land acquired by the government in 1993 to the VHP-controlled "Ram Janmabhoomi Nyas". An official statement confirmed this.

This explains a lot. You do not seek legal advice unless you wish, first, to adopt a particular course. Only then do you seek the advice in order to reckon with the legal hurdles. If the course itself is reprehensible, no legal advice is required. The issue here is not legality, but morality. It is utterly immoral to give the land adjacent to the site of the Babri Mosque, demolished on December 6, 1992, to the very organisation which accomplished the heinous deed and to do so in order deviously and forcibly to facilitate its accomplishment of its objective to build a temple on that site. For, once the adjacent land is built on, the site will be surrounded for the VHP to do what it pleases on the site of the mosque.

The Times of India reported (February 4) that the reference for legal opinion "was not an effort to buy time, but a serious move to push for a solution" according to "authoritative sources". The report added: "So even as the BJP has officially announced that the Ram temple was not on the agenda until 2004 (when the Lok Sabha polls are to be held) and the Prime Minister has seemingly adopted a tough and uncompromising line with the VHP leaders... the government is exploring ways of handing over land for the temple construction."

Significantly, BJP president Jana Krishnamurthy said in an interview to The Indian Express (February 6) that he did not consider the VHP's demand "illogical" because in his view "the actual dispute is over 80 ft by 40 ft where the structure known as Babri Masjid was located (and) the rest of the land is not in the disputed site. This land was bought by the VHP and the Ramjanmabhoomi Nyas... There is some basis for the demand." The land was actually acquired by the U.P. government to "promote tourism". It was held to be mala fide by the Allahabad High Court. No prizes for guessing the identity of the lawyer who advised the acquisition. The land was bought mala fide also.

Since December 6, 2000, when he raked up the Ayodhya issue in the Lok Sabha, following his conclave with RSS leaders and Advani on December 1, 2000, Vajpayee has been fixing his deadlines to accord with the VHP's ultimatum. The VHP contends that the court's orders are irrelevant. Its pact with Home Minister Buta Singh in 1989 bears recalling, especially since its existence was challenged on February 2 on television by Praveen Togadia. It was published by the V. P. Singh government on October 17, 1990, and is Appendix II to the Government of India's White Paper on Ayodhya.

The White Paper itself makes clear that land adjacent to the site of the mosque, called the "disputed site", was not acquired by the government for disposal as it pleased. To begin with, it is well settled that a government cannot act like a private party. Its acquisitions and disposals of property must be for a "public purpose", not to favour one party or community in a pending dispute or litigation. This is a well-settled rule of constitutional law as well as of administrative law (Seervai, Constitutional Law of India, Fourth Edn., Vol. I, page 933).

Apart from this rule of general application, in the instant case the government explained in a press note, on December 27, 1992, why land adjacent to the site of the mosque was being acquired. It read: "The government has decided to acquire all areas in dispute in the suits pending in the Allahabad High Court. It has also been decided to acquire suitable adjacent area. The acquired area excluding the area on which the disputed structure stood would be made available to two Trusts which would be set up for construction of a Ram Temple and a Mosque respectively and for planned development of the area." Thus the adjacent area cannot be given to the VHP alone.

The press note added: "The Government of India has also decided to request the President to seek the opinion of the Supreme Court on the question whether there was a Hindu temple existing on the site where the disputed structure stood. The government has also decided to abide by the opinion of the Supreme Court and to take appropriate steps to enforce the court's opinion. Notwithstanding the acquisition of the disputed area, the government would ensure that the position existing prior to the promulgation of the Ordinance (for acquisition of land) is maintained until such time as the Supreme Court gives its opinion in the matter. Thereafter the rights of the parties shall be determined in the light of the court's opinion." A total of 67.703 acres of land was thus acquired.

This was quoted by the majority judgment of the Supreme Court on the President's reference to the court for its advisory opinion under Article 143 of the Constitution and on the validity of the Acquisition of Certain Area at Ayodhya Act, 1993 (Ismail Faruqui vs. Union of India (1994) 6 SCC 360 at page 383). The court unanimously declined to answer the President's reference. It also unanimously held Section 4(3) of the Act, which aborted the title suits in the Allahabad High Court, to be unconstitutional, being unfair to Muslims. The minority (Justices A. M. Ahmadi and S. P. Bharucha, now Chief Justice) ruled that this vitiated the entire Act. The majority (Chief Justice M. N. Venkatachaliah and Justices J. S. Verma and G. N. Ray) held it was severable from the rest of the Act.

Sections 6 and 7 of the Act read thus:

Section 6(1): The Central Government may, if it is satisfied that any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are willing to comply with such terms and conditions as that Government may think fit to impose, direct by notification in the official Gazette, that the right, title and interest or any of them in relation to the area or any part thereof instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust either on the date of the notification or on such later date as may be specified in the notification.

(2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees referred to in sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall, on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees of that trust..." The VHP invokes this - in vain, as we shall see.

Section 7 (1): "Notwithstanding anything contained in any contract or instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of this Act, the property vested in the Central Government under Section 3 shall be managed by the Central Government or by a person or body of persons or trustees of any trust authorised by that Government in this behalf.

(2) "In managing the property vested in the Central Government under Section 3, the Central Government or the authorised person shall ensure that the position existing before the commencement of this Act in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as Ram Janma Bhumi-Babri Masjid, stood in Village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained." Section 6 provides for transfer of title by the government; Section 7 for management of the land.

The majority ruled: "The justification given for acquisition of the larger area including the property respecting which title is not disputed is that the same is necessary to ensure that the final outcome of adjudication should not be rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in case the Muslims are found entitled to the disputed site. This obviously means that in the event of the Muslims succeeding in the adjudication of the dispute requiring the disputed structure to be handed over to the Muslim community, their success should not be thwarted by denial of proper access to enjoyment of rights in the disputed area by exercise of rights of ownership of Hindu owners of the adjacent properties. Obviously, it is for this reason that the adjacent area has also been acquired to make available to the successful party, that part of it which is considered necessary, for proper enjoyment of the fruits of success on the final outcome to the adjudication.

"It is clear that one of the purposes of the acquisition of the adjacent properties is the ensurement of the effective enjoyment of the disputed site by the Muslim community in the event of its success in the litigation, and acquisition of the adjacent area is incidental to the main purpose and cannot be termed unreasonable. The 'Manas Bhawan' and 'Sita ki Rasoi', both belonging to the Hindus, are buildings which closely overlook the disputed site and are acquired because they are strategic in location in relation to the disputed area. The necessity of acquiring adjacent temples or religious buildings in view of their proximity to the disputed structure area, which forms a unique class by itself, is permissible."

The court added: "However, at a later stage when the exact area which is needed, for achieving the professed purpose of acquisition, can be determined, it would not merely be permissible but also desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner. The challenge to acquisition of any part of the adjacent area on the ground that it is unnecessary for achieving the objective of settling the dispute relating to the disputed area cannot be examined at this stage...".

Thus, to award any part of the adjoining land to the VHP's Trust is to flout the Supreme Court's clear ruling. The fate of the adjoining land depends on the result of the title suit. That cannot be prejudged by gifting government-owned land to the Vishwa Hindu Parishad. It would be a patently unconstitutional and dishonest act - even by the fallen standards which the BJP government follows.