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Against the law

Print edition : Feb 16, 2002 T+T-

The provisions of the Ayodhya Act, as interpreted by a majority judgment of the Supreme Court in 1994, constitute a solid defence against the Hindutva forces' attempt to execute their plan to build a temple at the disputed site in Ayodhya.

WHILE introducing the Bill to replace the Acquisition of Certain Area at Ayodhya Ordinance in 1993, Union Home Minister S.B. Chavan declared the following as its objects and reasons: "As it is necessary to maintain communal harmony and the spirit of common brotherhood amongst the people of India, it was considered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a complex which could be developed in a planned manner wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities can be set up."

By virtue of the Ordinance, promulgated by the President on January 7, 1993, the right, title and interest in respect of certain areas near the site of the Babri Masjid stood transferred to and vested in the Central government. Nearly a decade has passed since the enactment of what has come to be known as the Ayodhya Act, but the government does not seem to have tried to fulfil its declared objectives. This might be owing to its failure to seek a fair judicial or negotiated settlement that could satisfy both Hindus and Muslims.

The P.V. Narasimha Rao government sought to link the Act with the resolution of the dispute in the hope that a Supreme Court pronouncement on the President's reference under Article 143 - on whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid, including the premises of the inner and outer courtyards of the structure - would lead to a solution. However, the court declined to answer the reference but upheld the validity of the Act in 1994. The majority judgment, given by Justices M.N. Venkatachaliah, J.S.Verma and G.N. Ray, declared Section 4(3) of the Act invalid. But in view of its severability from the other provisions of the Act, it held the Act to be constitutionally valid. Section 4(3) sought to abate all suits, appeals or other proceedings pending before any court, tribunal or other authority in respect of the right, title, and interest relating to any property vested in the Centre by virtue of this Act. The Judges felt that answering the President's reference was superfluous and unnecessary in view of the striking down of Section 4(3). Their opinion meant that with the revival of the cases pending before the Allahabad High Court, the due process would provide an opportunity to deal with the issues framed in the reference.

The minority opinion by Justices A.M. Ahmadi and S.P. Bharucha, the present Chief Justice of India, favoured the striking down of the entire Act while declining to answer the President's reference. According to this opinion, Section 4, inasmuch as it deprived the Sunni Wakf Board and the Muslim community of the right to plead and establish adverse possession of the property and restrict the scope for the redress of their grievance in respect of the disputed site, offended the principle of secularism, a part of the basic structure of the Constitution. It also found arbitrary and unreasonable Section 8 of the Act, which provides for settlement of compensation claims from the previous owners of the land and so on acquired by the government by the Claims Commissioner. The minority opinion, recorded by Justice Bharucha, declined to answer the President's reference on the ground that the purpose of the reference was opposed to secularism as, in their view, it favoured one religious community and disfavoured another. They also said that answering the reference without hearing the parties concerned or evaluating their evidences would impair the court's credibility. "Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it," they said.

THE Ayodhya storm, however, has returned, with the Vishwa Hindu Parishad's deadline to start construction of a temple at the disputed site approaching. While the dignity and honour of the Supreme Court has remained secure owing to its decision not to answer the President's reference, the court now faces the risk of being compromised because of subtle attempts by vested interests to misinterpret its judgment on the Act.

The government's failure to have the objects of the Ayodhya Act fulfilled has not made the Act irrelevant. The Act has stood the test of time, and its provisions, as interpreted by the majority Judges of the Supreme Court in 1994, constitute a solid defence against any attempt by the Rashtriya Swayamsevak Sangh-VHP-Bajrang Dal combine to go ahead with their temple plans with the help of a partisan government at the Centre.

The minority Judges favoured the striking down of the Act because they felt that the Constitution did not permit the state to acquire a place of worship in order to preserve public order. "Secularism is absolute; the state may not treat religions differently on the ground that public order requires it," it said. The Judges, therefore, suggested a sensible option to the government if the title to the place of worship is in dispute in a court of law and public order is jeopardised: the government may either apply to the court concerned to appoint it as receiver of the place so that it could be held secure pending the final adjudication of its title, or it may enact a law that makes it the statutory receiver of the place. In either case, the Centre would commit itself to handing over the place of worship to the party that won the title suit, the Judges said.

The majority Judges conceded this argument by holding that the disputed area, that is, the 2.7 acres on which the Babri Masjid stood, was 'vested' in the Central government only as a statutory receiver by virtue of Section 3 of the Ayodhya Act. However, the Act's provisions are significant with regard to what the government could do in relation to the 67 acres of undisputed area, which is adjacent to the disputed area and which is acquired by it.

The majority Judges were more concerned about the possible consequences of holding the entire Act invalid. Such a pronouncement, they feared, would automatically revive the worship of the idols by Hindu devotees, which has been curtailed since December 1992, without granting any corresponding benefit to Muslims, whose practice of worship at the disputed structure had come to a stop in December 1949. Therefore, the best solution, according to them, was to maintain the status quo as on January 7, 1993, when the Act came into force. This decision was assailed because it allowed worship by Hindus in a restricted manner and denied a similar privilege to Muslims during the pendency of the litigation. However, the majority Judges felt that it was the best possible manner in which the feelings of Muslims could be assuaged after the demolition "without giving cause for any legitimate grievance to the other community leading to the possibility of re-igniting communal passions detrimental to the spirit of communal harmony in a secular state".

The logic of the decision is debatable, but it is hardly in dispute now. The Hindutva forces seem to be using the subtle distinction made in the judgment between the disputed and undisputed areas to buttress their argument that there is no legal hurdle to the government handing over the undisputed area acquired by it to another authority or body or trust by virtue of Section 6(1) of the Act. This Section enables the Centre to transfer its right over the acquired area to a body or trust set up on or after the commencement of the Act if it is satisfied that such a body is willing to comply with any terms and conditions that the Centre may stipulate. These terms and conditions would necessarily have to include Section 7(2) of the Act, which requires that in managing the property vested in the Centre the government or a person authorised by it shall ensure that the position existing before the commencement of this Act is maintained in the area. The VHP's declaration that it would go ahead with temple construction at the disputed site makes it clear that it cannot guarantee maintenance of status quo in accordance with Section 7(2). There is reason to believe that the VHP will use the undisputed area, if it is transferred to any of its affiliates by the government, to begin construction and engulf the disputed site to achieve its declared goals.

Section 6(3) of the Act makes it clear that the provisions of Sections 4,5,7 and 11 shall apply in relation to such authority or body or trustees as they apply in relation to the Central government, and for this purpose references therein to the Central government shall be construed as references to such authority or body or trustees.

Does the Centre enjoy unlimited discretion to hand over the undisputed area on a platter to anyone it wants to? The justification for acquiring the undisputed area was that the government wanted to ensure that the final outcome of adjudication should not be rendered meaningless by the existence of any property belonging to Hindus in the vicinity of the disputed structure in case Muslims are found to be entitled to the site. The majority judgment said that in the event of Muslims winning the case, their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by Hindus exercising their ownership rights over adjacent properties. The judgment, for instance, justified the acquisition of Manas Bhavan and Sita ki Rasoi - buildings belonging to Hindus. The acquisition of such buildings in view of their proximity to the disputed site was permissible, the majority Judges said. However, Justice Verma, who wrote the majority judgment, added an important caveat: "At a later stage when the exact area acquired 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."

A large part of the undisputed area, the court conceded, comprised properties of Hindus and their titles were not in dispute. But the condition here is the 'determination' of the exact area required to achieve the objects of acquisition and of the surplus areas found unnecessary. By no stretch of the imagination could the government or the VHP claim that this area has been 'determined'. Such determination will hinge on the resolution of the dispute before the court, and therefore this exercise has necessarily to await the Allahabad High Court's decision. Till such time that happens, the government has to maintain the status quo as on January 7, 1993, not only at the disputed site but also in the undisputed area in accordance with the spirit of the Supreme Court's judgment, which has built, perhaps unwittingly, a linkage between the disputed and undisputed areas in the interests of secularism.

Justice Verma held that the embargo on transfer till adjudication in terms of Section 6(1) related only to the disputed area. He made it clear that the retention of excess area by the government till the adjudication of the dispute might be unnecessary. But it is obvious that the determination of the "excess" area should precede the government's exercise of its duty to restore it to the owner if such retention is found to be unnecessary. What the VHP seems to argue is that the entire 67 acres of undisputed land acquired by the government is unnecessary, and that therefore, the excess area could be reverted to its rightful owners. Such an argument is against the spirit of the majority judgment.