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Print edition : Jun 03, 2011 T+T-

The Supreme Court order staying the Allahabad High Court verdict opens up all possibilities in the Ayodhya title suit.

in New Delhi

RIGHT from the day it was delivered on September 30, 2010, the Allahabad High Court judgment recommending trifurcation of the disputed Babri Masjid-Ram Janmabhoomi site in Ayodhya evoked widespread criticism over its violations and limitations in terms of established judicial practices. The Supreme Court in its order of May 9, 2011, which stayed the High Court verdict, upheld, in a sense, the spirit of this criticism.

The apex court observed that the three-way division in the High Court judgment was strange and surprising. The two-member Bench of Justices Aftab Alam and R.M. Lodha stated thus: A new dimension was given by the High Court as the decree of partition was not sought by the parties. It was not prayed by anyone. It has to be stayed. It's a strange order. How can a decree of partition be passed when none of the parties had prayed for it? Court has done something on its own. It's strange. Such kind of decrees cannot be allowed to be in operation.

In the wake of the High Court judgment, it was pointed out in both judicial and political forums that the tools of jurisprudence employed by the three judges in formulating the verdict marked a significant departure from usual judicial practice. Central to this criticism was the judges' use of faith and belief as key components in the arguments they advanced.

Several legal experts pointed out that issues relating to faith and belief were brought in in such a large measure by Justices Dharam Veer Sharma, Sudhir Agarwal and Sibghat Ullah Khan in their individual judgments that they almost seemed to overlook the fundamental fact that the case under jurisdiction related to a title suit in a property dispute.

The Supreme Court stay order has not gone into an analysis of this perceived transgression of normal judicial practice, but several parties to the dispute and close observers of the Ayodhya case say this will happen anyway in the course of the hearing on the appeals that have come up before the apex court.

Talking to Frontline, Anupam Gupta, former counsel of the Justice Liberhan Commission, which was set up to bring out the truth behind the demolition of the Babri Masjid in December 1992, said the Supreme Court stay order would enable a re-examination of all the premises and postulates of the Allahabad High Court order when the case progressed to the final hearing stage. He said:

The use of the words strange' and surprising' is significant. The Supreme Court could have just stated that all parties involved in the dispute the Sunni Central Waqf Board, which claimed to have had possession of the disputed structure and the land around it since the 16th century, the Nirmohi Akhara, which has staked its claim to the property since 1885 and ran a place of worship on the premises, and Lord Ram Lalla (infant Ram), represented by his Sakha (close friend) Triloki Nath Pandey are against trifurcation and hence the verdict is stayed. But the Bench chose to observe that the Allahabad High Court verdict was strange and surprising.

Undoubtedly, this observation has significance beyond its immediate context and should serve as a reminder to civil society in general and in particular to those sections that had persuaded it to believe that trifurcation was the best possible pragmatic solution to the Ayodhya dispute. These sections had argued that the long-standing problem had caused social and political fatigue in the population and that one should look for easy and practical justice. The Supreme Court stay underscores one important aspect that these sections of civil society chose to overlook: that no solution that does not stand up to proper judicial principles and scrutiny can be acceptable to a nation and its people.

While Gupta did not name the sections of civil society, it is widely known that the two big mainstream political parties, the Congress and the Bharatiya Janata Party (BJP), had welcomed the trifurcation recommendation as a possible basis for a negotiated settlement of the Ayodhya dispute. The Supreme Court order has virtually quashed this expectation.

Interestingly, the BJP welcomed the Supreme Court stay too. The Congress maintained that the party, as a matter of principle, did not comment on judicial issues that were under process. Other secular political forces, including the Left parties, led by the Communist Party of India (Marxist), and the Samajwadi Party (S.P.), have welcomed the Supreme Court order as a step in the right direction.

In Ayodhya itself, the parties to the dispute welcomed the apex court order. Mohammed Hashim Ansari, the main plaintiff in the case on behalf of the Sunni Central Waqf Board, told Frontline that none of the parties involved in the dispute wanted a division of the property. The apex court order should serve as a lesson for all those involved in cheap politics over the issue, Ansari said.

Mahant Bhaskar Das of the Nirmohi Akhara echoed Ansari's view. He said his organisation was against the division of the disputed land and added that the Supreme Court had justified the akhara's stand.

The third party, Triloki Nath Pandey, representing Ram Lalla, also welcomed the decision because he and all the devotees of Ram believe that all of Ayodhya is the property of the deity and it cannot be apportioned to other organisations or faiths. The Vishwa Hindu Parishad (VHP), the sword arm of the Rashtriya Swayamsewak Sangh-led Sangh Parivar and the strongest political associate of the third party, also welcomed the stay and advanced arguments similar to those of Pandey.

Talking to Frontline from Lucknow, Zafaryab Jilani, main lawyer of the Sunni Central Wakf Board and a leader of the Babri Masjid Action Committee (BMAC), said the Supreme Court stay did indicate that the earlier sanctioned decree of the Allahabad High Court was not sound in law. The order has once again opened up the Ayodhya case for all possibilities and, of course, a long judicial process, he said.

Jilani and other legal experts associated with the three parties to the dispute were of the view that legal procedures in the Supreme Court would at least take another two years.

However, representatives of all the parties told Frontline that they were open to negotiations under a competent political authority, which could lead to an amicable settlement. In fact, Mohammed Hashim Ansari had joined hands with Mahant Gyan Das of the Hanuman Garhi temple in Ayodhya to initiate steps in this direction. But so far the move has failed to gather momentum.

Given the chequered history of the dispute and the efforts for a negotiated settlement, no political organisation has the credibility to take the lead in such an exercise.