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The Supreme Court has rewarded someone’s illegal actions, Advocate Ejaz Maqbool on the Ayodhya judgment
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The Supreme Court has rewarded someone’s illegal actions, Advocate Ejaz Maqbool on the Ayodhya judgment

Bar & Bench

Advocate Ejaz Maqbool represented the Muslim parties in the lead matter of the Ayodhya dispute right from the time the appeals were filed before the Supreme Court. One of the most sensitive cases to come up before the Supreme Court, the Ayodhya matter came to a close on November 9, with the judgment being delivered nearly ten years after the first appeal was filed.

In this interview, Ejaz Maqbool speaks to Bar & Bench about the journey of the case, his disagreement with the judgment, and the confidential mediation process. Maqbool also shares his thoughts on the road ahead for the Muslim parties in the case.

Can you tell us how you became a part of this case? 

The lead petition was the M Siddiq petition, which was filed by Jamiat Ulema- e-Hind, by late Mr. Anir Suhrawardy, Advocate on Record. It was the first appeal to be filed after the Allahabad High Court judgment. Later, 7 more appeals were filed before the Supreme Court, which included the appeals of individual muslims, including an appeal preferred by one Misbahudeen, for whom I was engaged as an Advocate-on-Record.. Later on, Jamiat Ulema-e-Hind engaged me to be on record in the lead case of M Siddiq.

How was the experience working on the case? What were the challenges you faced?

One of the main challenges was that the records were voluminous. All of us (seniors, juniors and AoRs) had to work on it.

Dr. Rajeev Dhavan led from the front. In fact, he came across as the “youngest person” in our team, as even younger juniors could not match up to his stamina and efforts.

Ten of my staff  members, including four of my juniors were completely devoted to the office of Dr. Rajeev Dhavan. They used to work late into the night and leave his office at 2 AM or 3 AM. Four junior lawyers from my office – Akriti Chaubey, Qurratulain, Kunwar Aditya Singh, one Esha Meher who came from Kolkata – were dedicated to Dr. Dhavan’s office for this case.

Advocates Kunwar Aditya Singh and Akriti Chaubey with Advocate Ejaz Maqbool
Advocates Kunwar Aditya Singh and Akriti Chaubey with Advocate Ejaz Maqbool

Besides, two juniors – Pervez Dabas and Uzmi Jameel – from the office of Shakeel Ahmed Syed also worked with Dr. Dhavan on the case.

Further, Dr. Dhavan’s junior, Ms. Siddhi Padia was also a part of the core team.

It took almost two months to prepare the matter before the hearing started. The submissions had to be settled by Dr. Dhavan. Many a time, the submissions were finalised at 2 AM. We then compiled 35-40 copies of the same by 10.30 AM the same day. Never in my 32-year career have I dealt with a matter of such magnitude and volume.

How difficult was it to translate the records that ran into so many pages?

The three-judge Bench had initially thought of getting the translations done by the official translators. All parties sought leave to dispense with the services of official translators. A report was then sought by the Court from the Secretary-General. He gave a broad report of how much of time it would have taken had official translators continued with the work. Based on that, the Court decided to dispense with the services of the official translator and ordered the State of Uttar Pradesh to translate the depositions.

It was a big challenge to translate the documents. Hindi to English translation is easy to do. But in this case, many documents were in other languages.

For Urdu, we found a person in Gujarat who could also knew Arabic and Persian. We had a lot of difficulty with private translators who were available in the Supreme Court. Many of them work on translations in our normal matters. But in this case, most of them washed their hands clean, saying it is not possible because the language was very difficult for them.

During the hearing, there was some friction between Rajeev Dhavan and CS Vaidyanathan. Did it affect the matter?

Not at all, we are all trained professionals. We all say something in the flow of the matter, but it was never on a personal level or aimed at anybody. It certainly did not affect the matter at all.

We always followed that principle that “do as adversaries do in law, strike mightily but eat and drink as friends”.

There were times when Dr. Dhavan had received threats. His clerk also allegedly received threats for being associated with the Muslim parties in the case. Did such instances affect the proceedings? 

Dr. Rajeev Dhavan stood like a rock. He had been threatened on many occasions. One such occasion was when he received threats from a Professor against whom we filed a contempt petition. He [the Professor] apologized before the Court and both the Court and Dr. Dhavan accepted his apology and the matter was closed. I heard that his clerk received some threats on his mobile phone.

“Rajeev Dhavan stood like a rock.”
“Rajeev Dhavan stood like a rock.”

As a Muslim lawyer appearing in this matter, not a single call was ever received by me or by my colleagues working in my office. Dr. Rajeev Dhavan received several phone calls, but he never asked for security.

In fact, the worst was when someone called him and said “Jab aapki arthi niklegi usme bhi Ram nam Satya hi bola jayega.” (Lord Ram’s name will be chanted even at your funeral).

But these things did not affect us. Dhavan said,

“I am not appearing for a particular party. I am appearing in my own cause. I am appearing to protect the Constitutional mandate.”

Coming to the judgment itself, do you think it was balanced?

No. This judgment is full of contradictions. It holds many things in favour of my clients. But ultimately, the Court gives the land to someone else who had committed all the illegalities.

A classic example is when they hold that the Mosque was vandalised in 1934 and the British had taken measures to get it repaired and maintained. They also held that idols of Ram Lalla were surreptitiously and unlawfully placed inside the inner dome of the Babri Masjid on the intervening night of 22nd and 23rd of December 1949.

Further, they also held that inspite of the undertaking given to the Supreme Court, the Mosque was demolished in 1992, in blatant violation of the undertaking.

We have a lot of respect for the Supreme Court and its judges. But I am reminded of the quote- “the Supreme Court is supreme but not infallible” 

So I am asking myself this question – if the Babri Masjid had not been demolished on 6th of December, 1992, had the  present judgment still been delivered by the Hon’ble Supreme Court, even after acknowledging that the rights of the pro temple parties were based on the illegalities committed by them in 1934, 1949 and 1992. 

The Court has relied on the preponderance of probabilities and they have based a lot of their findings on oral and documentary evidence. How far do you agree?

That itself has many contradictions. The pro-temple parties always said that there was a temple below the Babri Masjid and Babur had demolished that temple – which was a 12th century temple – to build the Babri Masjid. The Supreme Court, as far as the ASI report (is concerned), has held that Hindus have not been able to explain the existence of the 12th century temple at the time of construction of the Babri Masjid, almost after 400 years. Therefore, the Court has held that there cannot be a conclusion that a temple was demolished for making a mosque.

Regarding preponderance of probabilities, the same is only for evidence with respect to the outer courtyard. They themselves admit that on December 16, 1949, Friday prayers were offered by the Muslims in the Mosque. Certainly, the Friday prayers were offered inside the mosque within the inner courtyard. 

So, therefore, this finding of the Supreme Court on the preponderance of evidence can only lead to the conclusion that Hindus had a prescriptive right as far as the outer courtyard was concerned.

The Supreme Court itself said that the Hindus committed illegalities and placed idols inside the Mosque. By this judgment, somebody who committed all the illegalities has become the owner of the land and the real owner of the land has been ousted.

“By this judgment, somebody who committed all the illegalities has become the owner of the land.”
“By this judgment, somebody who committed all the illegalities has become the owner of the land.”

The five acres of land offered as an alternative is of no value. The Muslim parties had not fought for a piece of land but for a mosque.

The Supreme Court has also concluded that the Muslim parties failed to prove that they had exclusive and uninterrupted possession to the inner courtyard. Do you think that the argument of adverse possession advanced by the Muslim parties backfired?

Adverse possession was an alternate argument. Our frontal argument was that this was a Mosque built in 1528 and for four centuries, the Mosque stood there. On the day the Constitution of India was adopted, this Mosque was there.

The Hindu parties have themselves stated that they were offering prayers at the grill railing outside, the letter of Sri KK Nayar in November 1949 mentions a dispute between Hindus and Muslims, as Muslims were offering Namaz inside but were not crossing the outer courtyard after removing shoes, all this shows that the inner courtyard was being used exclusively by Muslims. Further, the finding that the Hindus were in exclusive possession cannot be sustained as the inner courtyard could not have been accessed without crossing the outer courtyard.

The Supreme Court held that our suit was within limitation. They held that the other party was an aggressor who committed all the illegalities including violation of Supreme Court orders. Then they award the whole land to the party who committed the illegalities.

In fact, when we were hearing the judgment being read out, we thought that the Court was deciding in our favour but ultimately, when the final order came, it was the opposite. But we (lawyers) are officers of the Court and respect the Court and its decisions.

Do you think this case will now pave the way for more disputes at Mathura and Kashi?

I don’t think so, because the 1991 Act (Places of Worship Act, 1991) is in place now. That Act is also mentioned in the judgment.

But my worry is that if you allow any vandalism to be given legal clothing, then tomorrow people who don’t respect the law might try to do this. I hope this judgment becomes a mandamus against all those who wish to disturb the harmony of this country and wish to violate the mandate of secularism.

Internationally, this judgment will be criticised because the Court has rewarded someone’s illegal actions. Further, while the judgment frequently states that it is not going to decide the issue on the basis of someone’s faith, but it maybe perceived like that.

Now that the case is over, can you tell us what happened in the mediation proceedings?

I was part of the mediation proceedings. I represented two of the clients and we went for several sessions. Complete confidentiality was to be maintained and we maintained it, but some parties did breach it. 

Sri Sri Ravi Shankar had told me and my client Arshad Rashidi, that “you please give this land and we will say that this land belongs to Muslims and we will build the Ram temple on that. We will write that the Muslims gave this land.” 

Sri Sri Ravishankar, who was part of the Mediation Committee said, “<em>you please give this land and we will say that this land belongs to Muslims and we will build the Ram temple on that. We will write that the Muslims gave this land.”</em>
Sri Sri Ravishankar, who was part of the Mediation Committee said, “you please give this land and we will say that this land belongs to Muslims and we will build the Ram temple on that. We will write that the Muslims gave this land.”

They went to that extent. They said that we will allot a separate land for the Mosque somewhere in the vicinity. In fact, now the Supreme Court has also said the same thing, and has ordered that land be given in another prominent locality, not mentioning that the land be given from the adjacent acquired land.

This dispute was a proceeding under Order I Rule 8. It was between two communities and it was not the private property of any individual. So, all litigants on behalf of the Muslim parties could not have agreed to give the Mosque to someone else.

We, therefore, told the Mediation Committee that as persons representing the community, we had no authority to do that. We said that this is not our personal property nor that of Jamiat Ulema-I- Hind nor of  AIMPLB or any other body and no one had the authority to barter it for something else.

From day 1, the Mediation Committee has been saying that Muslims should give up their claim and should take up alternate land. We had not agreed to it. There should be a mandate for all other Mosques of the country as they are protected by the Places of Worship Act,1991.

The Court should have purely decided the matter as a title suit and should have decided on the basis of merit. The preponderance of evidence was certainly in favour of the Muslims. The Supreme Court has committed a grave error, but we respect the decision of the Court.

The Supreme Court said that the Central government should come up with a scheme for facilitating the construction of a temple and provide alternate land for Muslims. In a secular State, can a Court pass such orders?

I will reflect on the five acres first. The Supreme Court has set aside the High Court order as far as the limitation is concerned. It has said that the suit is within limitation so they have partly decreed the suit. The Court has said that it is exercising its powers under Article 142 and because it is partly decreeing the suit, it goes on to direct that five acres of land be given by the Central government or the state government at a prominent place. This, according to me, is a travesty of justice. The Muslim community will not accept it in all likelihood.

Now, as far as the disputed land is concerned, under Article 142 they should have said that the Babri Masjid belonged to the Muslims and hence the land on which the Masjid stood is being given to the Muslims. Article 142 is to do complete justice but in this case while the Court has exercised this jurisdiction, complete justice has not been done.

As far as the outer courtyard is concerned, because Hindus have been exercising perspective rights over the same for a very long time, the Court could in the exercise of its Article 142 jurisdiction give the same to Hindus. Hence, it could have directed both communities to co-exist.

In the conciliation proceedings, Muslims had agreed to give the outer courtyard. The Supreme Court had taken that report from the Mediation committee. It could have given the outer courtyard along with 5 acres to the Hindus.

On the direction of the Court to facilitate building of a temple…

I do not wish to comment on this. They have given this direction in view of Section 6 & 7 of the Ayodhya Act, 1993.

Do you think the Muslims will not accept the alternate site?

Yes. Because we were not fighting for a piece of land, we were fighting for a Mosque that was taken away from us. According to us, it is a wrong judgment. The Court went in favour of a party who committed all the illegalities.

The judgment has no single judge named as its author.  Do you think that is peculiar?

There is nothing illegal about it.  It is unique. The reason could be that they had very limited time and they had to write a very important judgment.

After the hearings were concluded, the five Hon’ble judges did not sit on many days. They might have spent the time together writing this judgment.

Another interesting aspect is that one of the judges has written an addendum but who wrote the addendum has also not been revealed. It is a unique experiment. According to me, they did it because they had very little time.

Another unique thing they have done is that they have delivered a judgment on a Saturday.

How do you perceive the media attention the case got? Do you think the media was responsible when it came to reporting on the hearing and judgment?

The media could have been more objective. They should not take sides. But we live in a free country and we cannot throttle the media and it should be the fourth estate.

Do you think the Court should review its judgment?

Yes.