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Prannv Dhavan and Parth Maniktala
A five-judge bench of the Supreme Court unanimously held that the possession of the most-contested piece of land in Indian political history—the 2.77 acres where the Babri Masjid once stood—should in fact be exclusively given to the Hindu claimants. This dispute has been one of the most intransigent inter-community religious dispute in India which has fueled competitive communalism, religious strife, and political discord.
In the Ayodhya verdict, the Court invoked its special power to do “complete justice” under Article 142 to restitute the damage caused by “egregious violation of the rule of law” in terms of the Hindu idol installation (1949) and Masjid demolition (1992). Hence, it ordered the government to allot an alternate plot of 5 acres to the Sunni Waqf Board at a ‘prominent place’ in Ayodhya for the construction of a mosque.
While the government has hailed the Ayodhya verdict as “a golden chapter in the history of the Indian judiciary”, many contend that the judicial outcome has come to represent a vindication of majoritarian interests. Be that as it may, across the board, there seems to be a concealed satisfaction, as if by upholding the claims of the Hindu-majority, the Court has averted a crisis. However, the finer aspects of the rule of law seem to have been compromised or diluted in this process.
Rule of law requires that people be governed in a manner that is equal, just, and non-arbitrary. In the Ayodhya verdict, the Court, citing SR Bommai v UOI, repeatedly emphasizes that secularism and fraternity is a basic feature of the Indian Constitution (see paragraphs 82 and 83 of the judgment). The Court goes on to strongly affirm the constitutional value and significance of the Places of Worship Act, 1991 while strongly affirming the principle of non-retrogression of colonial era religious disputes. The judgment states:
“The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”
This is an important signaling from the Court and any derogation from the judicious application of the Act would certainly be violative of the Court’s reasoning.
The Court’s engagement with the question of limitation has also come under criticism due to its conceptual inconsistency with regard to Ram Lalla Virajmaan’s suit. This is especially important because ‘Ram Lalla’ was impleaded in this case long after the civil dispute had been instituted during the colonial period. The Court had held,
“Suit 5 is founded on the plea that the needs and concerns of the deity of Lord Ram were not being protected and that the parties to the earlier suits were pursuing their own interests. This apprehension as the basis of Suit 5 is not without substance. The cause of action in Suit 5 cannot be considered to be barred by limitation on a proper construction of the basis of the cause of action for the institution of the suit.”
Hence, the Court’s reasoning leaves much to be desired in its understanding of the spirit of the law of limitation.
Next, the Court remarks that “title cannot be established on the basis of faith and belief above.” (para 788) And yet, it proceeds to say,
“Once the witnesses have deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief…Whether a belief is justified lies beyond ken of judicial inquiry.” (para 555)
Professor of law and Vice-Chancellor of NALSAR University Faizan Mustafa notes here,
“The court while pronouncing the judgment did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.”
While it is undisputed that a significant section of the Hindu population believes Ayodhya to be the birthplace of Lord Rama, it is unclear whether such belief can be grounds for legal adjudication in what is essentially a title dispute. Furthermore, such deference to religious beliefs also stands in opposition to the Supreme Court’s ruling in the Sabarimala case, wherein the Court explicitly favoured constitutional morality over any personal/religious beliefs. The Court had held in that case,
“In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.”
It remains to be seen what the jurisprudence of the Ayodhya verdict bears for the proceedings before the 7-judge bench that will hear the question of essential religious practices even as the review petitions in the Sabarimala case were kept pending recently.
Another instance of the Court deferring in favour of the belief of Hindu devotees is where it disregards the longstanding bifurcation of the disputed site at Ayodhya between an inner and outer courtyard. Para 773 notes,
“Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the “Garbh-Grih” being the birth-place of Lord Ram.”
The Court uses this logic to treat the entire disputed land as one unified territory—which it then proceeds to grant to the Hindu claimants. Again, this is a problematic deference to the belief of one community in disregard of the factual matrix (wherein Hindu devotees had initially only staked claims to the Ram Chabutra, located in the outer courtyard).
The consequences that follow from the Court ignoring such distinction between inner and outer courtyards (and treating them as a composite whole) are of paramount importance. The Court made two important conclusions that underpin its final orders:
1. “The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.”
2. “The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims.” (para 788, clause XVIII)
Therefore, as opposed to granting the Hindu representatives possession to the outer-courtyard, and then proceeding with a balancing act with respect to the possessory title for the inner courtyard, the Court could eventually conclude that “on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims…” (para 800). Hence, the Court proceeded to conclude that the “possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.” The trustees shall have the powers for the construction of a temple and all necessary incidental and supplemental matters.
It is also important to note that in reaching the conclusion that Muslims were not in exclusive possession of the inner courtyard, the Court heavily relies on evidence of attempts by Hindus to disrupt the possession of the Muslims:
“Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard.” (para 788, clause VII).
In a far more problematic way, the Court uses the illegal acts of violence on the part of Hindus to justify its conclusions about Muslims lacking exclusive possession.
“The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard.” (para 781)
It seems manifestly unfair for the Court to allow the Hindu claimants to benefit from brazenly unruly acts which sought to interfere with the possession of the Muslims. In retrospect, Muslims amicably respecting the rights of Hindus to worship in Ram Chabutra and Sita ki Rasoi has in fact turned out to be counterproductive.
It is also significant to note that the Court takes due notice of the unruly demolition of the Babri Masjid.
“The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law.” (para 788, clause XVIII).
And yet, the Court refrains from restituting the Muslim community by restoring the mosque. The judgment seeks to establish a judicial precedent wherein minorities are simply compensated for violations of rule of law, as opposed to restituting them to their original positions with due respect for their rights and dignity.
Nevertheless, it is important to not lose sight of a greater crisis that has been averted by the Ayodhya verdict. In a context where large scale mass-mobilization for temple construction was threatened and it was declared that Ram Mandir was an issue of faith and the Supreme Court must not delay its adjudication, the Court has successfully engendered unanimous support for legal process.
The Supreme Court has averted an immediate crisis, insofar as there has been no outbreak of violence, nor any reports of bloodshed in the aftermath of the Ayodhya verdict. But perhaps the greater crisis that the Court has involuntarily invited is that of minorities losing their faith in the institution of the judiciary. In an environment where the legislature and the executive are turning unashamedly majoritarian, vulnerable minorities have no choice but to repose their faith in the courts. One can only hope that the judiciary stays true to that faith.
Prannv Dhawan and Parth Maniktala are law students at NLSIU Bengaluru and Campus Law Centre, Delhi respectively. Prannv is the founding editor of the Law School Policy Review and Parth is an editor of the online journal, Polemics and Pedantics.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.