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A curious intervention

Print edition : Mar 14, 2003

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A five-member Constitution Bench of the Supreme Court is set to hear from March 6 the Centre's plea to vacate the March 2002 court stay on religious activity of any kind in the land acquired by it in Ayodhya.

in New Delhi

ON the face of it, any plea by the Central government to the Supreme Court to hear and dispose of expeditiously a long-pending case to which it is a party, would seem innocuous. Such an intervention by the government helps hasten the judicial process and minimise unjustified delays in resolving legal disputes. However, an application filed by the government before the Supreme Court on February 4 seeking an early hearing of the writ petition filed by a public interest litigant, Mohammad Aslam alias Bhure, in March 2002 seeking maintenance of the status quo in Ayodhya, evoked considerable suspicion about its motives.

As the Supreme Court's two-member Bench comprising Chief Justice V.N. Khare and Justice A.R. Lakshmanan heard the Centre's application on February 21, it had to face embarrassing suggestions from various counsel opposing the Centre's stand that the government was forced to seek an early hearing of the petition under pressure from the Vishwa Hindu Parishad (VHP), the militant affiliate of the Rashtriya Swayamsewak Sangh (RSS), espousing the cause of the Hindu Right. The senior counsel, who argued on behalf of Bhure, the All India Babri Masjid Action Committee, the Muslim Personal Law Board, the All India Wakf Board and the Babri Masjid Movement Coordination Committee, alleged that the Centre had ulterior motives in seeking the vacation of the interim order of March 13-14, 2002, banning religious activity of any kind in the land acquired by it in Ayodhya.

The Bench directed the listing of the Centre's application and the main writ petition filed by Bhure before a five-Judge Constitution Bench on March 6 but sought to remove the impression that it was doing so under pressure. "We are never pressured. Be sure about it," the Bench observed, rejecting the argument that the court was being pressured to resolve the dispute at the earliest, and that this could result in the denial of due process.

Indeed, the Supreme Court has the least role in hastening the resolution of the dispute, as the four civil suits for a decision on the title of the parties over the disputed land where the Babri Masjid stood are still pending before the Lucknow Bench of the Allahabad High Court. Therefore, the Centre's application seeking an early hearing of Bhure's petition was all the more curious.

In his petition, filed in 2002, Bhure sought the court's direction to place the 67.703 acres of disputed and "undisputed" land in Ayodhya under the control of the Army and maintain the status quo until the title suit was decided by the High Court. Bhure's petition was a blessing in disguise for the beleaguered Atal Behari Vajpayee government, which came under intense pressure from the VHP last year to facilitate the conduct of its shila puja ceremony on the undisputed land. Reluctant to take a decision on the VHP's plan, because of the compulsions of coalition politics, the government passed the buck to the Supreme Court, and promised to abide by its order.

The government had argued that the court's judgment in 1994 validating the Acquisition of Certain Area at Ayodhya Act, 1993, directed the maintenance of the status quo as on January 7, 1993, only with regard to the disputed area, where the Babri Masjid stood, and that it was at liberty to return part of the undisputed land, found superfluous, to its legitimate owners, or give permission to anyone to use the undisputed land to perform a symbolic puja. Unconvinced by this argument, a three-member Bench had issued an interim order on March 13-14, directing that the matter be listed before a larger Bench, after asking the parties in the case to file counter-affidavits and rejoinders within eight weeks and banning any kind of religious activity in the acquired area in the meantime. The court directed the government not to hand over the acquired land to anyone or permit its use for any religious purpose, but retain it until the disposal of the petition.

The court's interim order was a setback to the VHP, which felt betrayed by the Vajpayee government. Since then, the VHP has been reminding the Prime Minister periodically that he did not keep his `promise' to return the undisputed land to it. The `promise', apparently made by Vajpayee to VHP president Ashok Singhal before the shila daan ceremony last year, was perhaps the reason for the government's affidavit filed in the Supreme Court in October. In its affidavit challenging Bhure's petition, the government argued that Bhure sought the court's intervention merely on the apprehension that in March 2002, the VHP would violate the court's order to maintain the status quo.

Claiming that this was untenable, the government pointed out that no violation had taken place, and therefore the writ became infructuous. The government's defence of the VHP was in contrast to what Solicitor-General Kirit N. Raval told the Bench on February 21. Arguing that the government's February 4 application was not born out of the VHP's threat to enter the disputed site forcibly, he said the government had nothing to do with it.

More significantly, the government claimed in its October 2002 counter-affidavit that the vesting of the adjacent area, other than the disputed area acquired by the 1993 Act, in the Central government (by virtue of Section 3 of the Act) was "absolute" until its further vesting in any authority or trust under Section 6 of the Act, in accordance with what it claimed as the "true interpretation" of the Supreme Court's 1994 judgment.

The government clarified that the area acquired by it under the Act was 71.361 acres and not 67.703 acres as mentioned in the court's interim order. The government also acknowledged that as a Statutory Receiver it was duty-bound to maintain the status quo in the disputed area until final adjudication of the title suits. It kept a mysterious silence on the question of maintaining status quo. The indication was that if the government could not return the undisputed land to its erstwhile owners or vest it in any authority until the title dispute was resolved, then it could, by virtue of its "absolute" ownership of the undisputed land, permit its use for any activity, including those with avowedly communal objectives. This, to many observers, would defeat the very objective of acquisition.

The Centre's February 4 application appeared to be self-contradictory. After claiming that the situation was normal, as compared to March 2002, when the court was constrained to pass an interim order, the government felt troubled by the "state of uncertainty" with regard to the acquired land. "This uncertainty is likely to generate problems even in the future, and it is, therefore, necessary that the position becomes clear by a final decision of this court," the application said. The government made no effort to clarify what this uncertainty meant, how it affected the public interest and what problems it could create. On the contrary, it claimed that with the situation turning normal, there was no need to continue an interim order, in view of the judgment of the Constitution Bench in Ismail Farooqui vs Union of India (1994).

Again, it did not explain how this judgment made the continuance of the interim order irrelevant.

Curiously, both the VHP and the government submitted their counter-affidavits in July and October respectively, well after the eight-week time-limit set by the Supreme Court. If the expeditious hearing of the case was the government's and the VHP's objective, it is inexplicable why they made no effort to comply with the court's directive, and did not seek an early hearing of the case before February 2003. While the government does not want to admit the VHP's pressure behind its application, its strategy appears to be to let the VHP gain access to the undisputed land first by claiming ownership, begin construction there, and later claim the disputed land forcefully and fraudulently as it did on December 6, 1992, when the Babri Masjid was demolished, irrespective of the outcome of the title suits.

As the Constitution Bench begins hearing the case, the focus would inevitably be on the interpretation of the 1994 judgment on the validity of the 1993 Act. Does this permit the government to transfer the ownership of undisputed lands to erstwhile Hindu owners, before the title case is decided? Justice J.S. Verma, who recently retired as the Chairman of the National Human Rights Commission and who wrote this judgment on behalf of the majority Judges, has clarified that it does not. While his view - expressed after his retirement from the Supreme Court - has no authoritative value, a fair reading of the judgment would buttress it. It is true that once the Centre determines how much area is required to "effectuate the purpose of acquisition", whatever acquired land found to be unnecessary and superfluous by the executive could be returned to its erstwhile owners, as per the judgment. But such determination can be possible only after the title cases are finally decided by the judiciary.

In accordance with the scheme of the Act and the judgment, whoever wins the title case will have claim over the disputed land (about three acres) to build a temple or a mosque. Part of the adjacent undisputed land may have to be given to the winner to let them enjoy the "fruits of success". Part of the surplus undisputed land, again, may have to be used for setting up the remaining features of the planned complex housing "a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities" as stated in the Act. It is only after all these purposes of acquisition have been fulfilled that the superfluous, unnecessary piece of land can be identified and returned to its erstwhile owners. The government and the VHP, it appears, are in no mood to wait for this legitimate, yet time-consuming, process to be completed.

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