Ayodhya Judgment creates rights based on illegal acts, incorrigible in light of settled law: Peace Party of India moves curative petition

Dr Mohammad Ayub, the president of the Peace Party of India, has filed a curative petition questioning the correctness of the Supreme Court’s November 9, 2019 judgment in the Ayodhya case, which saw Court holding that the title to the disputed site at Ayodhya vests in the Hindu parties..The development follows after the Supreme Court dismissed a batch of review petitions filed in the matter in chambers last December..Whereas the curative petitioner was not a party to the Ayodhya case, he has submitted that he is pursuing the cause, given that the November 9 judgment affected the sentiments of the larger community and religion. In this regard, the curative petition states, ."... the judgment impugned passed by this Hon’ble Court dated 09.11.2019 was not only a descriptive judgment which describes various historic facts and dealt with the approval pertaining to the same, but also affects the sentiments of large number of persons of one community & religion. Due to this reason petitioner herein as a responsible and law abiding citizen of his native area and also as a socially active figure attempting continuously to raise the bonafide cause on his part.".The November 9 judgment itself has been challenged has having several errors, both legal and factual, on the face of the record which go to the root of the matter..… the judgment relies upon patent errors and creates rights based on illegal acts which is incorrigible in light of settled law…Curative Petitioner.Ayub adds that the judgment also entails a violation of natural justice principles and that there is a case made out for the matter to be reviewed in open court..In particular, Ayub has disputed the correctness of the Supreme Court’s findings on title, arguing that the Bench has erred in holding that the Hindus were in exclusive possession over the disputed property (the outer yard) and that the Muslims did not have such possession (in the inner yard)..He goes on to argue that on a balance of probabilities, the evidence presented by the Muslim parties in suit number 4, particularly on title or possession of the dispute site, stands on better footing. .Further, observations made that the Muslims have not asserted their title over the property have also been disputed by the curative petitioner. Therefore, the issue must be held “in favour of the Muslims who were in lawful possession til the premises were attached”, the petition asserts..Another contention advanced is that the Hindu parties in Suit no. 5 have not discharged a burden of proof that fell upon them to claim possessory title..“The Hindus as the Muslims alike were supposed to establish their Possessory Title”, the petitioner highlights. He adds further that,.“The evidence presented by plaintiffs in Suit 5 must also be scrutinized through the same lens which has been used to appreciate the evidence in support of Suit 4. Anything short of this would be manifestly arbitrary and be a violation of Article 14 of the Constitution of India … The burden of proof to establish a positive case lies on the plaintiffs in Suit 5 in terms of Sections 101 to 103 of the Evidence Act 1872.”Curative Petitioner.Moreover, the Ayub has also questioned the Supreme Court’s ruling in favour of the Hindu parties, given that it Bench acknowledged that the Muslims were illegally “deprived of the [Babri Masjid] mosque". Inter alia, the petition states,.“The connivance/negligence of the authorities which led to the desecration of the mosque and violation of this Court’s order which led to its demolition have been held to be illegal acts. No right can flow from such illegal and reprehensible acts of 22nd and 23rd December 1949, when the mosque was desecrated by surreptitiously installing idols inside it, and thereafter, the planned demolition of 6th December 1992.”Curative Petitioner.In this regard, it is also stated that,.“… the judgment holds that Muslims were in possession of the Mosque till it was desecrated and the Hindus came to be in possession of the Mosque by illegal acts and the same cannot be equated to lawful possession. It is unprecedented, unconscionable and against the principles of Rule of Law to equate the two and hold that the evidence in favour of plaintiffs in Suit 5, stands at a better footing than that of plaintiffs in Suit 4, when it comes to establishing possession of the inner courtyard.”.Ayub contends that in effect, the ruling goes against settled principles of law which are recognised in maxims such as Ex dolomalo non orituractio i.e. (no right of action can have its origin in fraud) and Ex turpicausa non oritur action (from a dishonorable cause an action does not arise). In view of these principles, the petitioner has argued,.No right of action an have its origin in fraud, and the claim of plaintiffs in suit 5 cannot stand without the illegally desecrating the mosque in 1949 and demolishing it in 1992. What relief would this Court have given if the mosque still stood at the disputed site?Curative Petitioner.Further, the petitioner has also questioned if “illegally shifted idol(s) claim and be accorded the status of a juristic personality?”.Among the other submissions made by Ayub in his curative petition, the curious form in which the November 9 judgment was drafted also finds mention. .It may be recalled that the Ayodhya Judgment, rendered by a five-judge Constitution Bench of the Supreme Court, did not record a specific author for any part of the judgment. Rather, the judgment was simply signed off by all the judges, signifying that they were in agreement on verdict. It is unclear who authored the judgment for the majority..Ayodhya Verdict: Who is the author of the judgment?.Further, an addenda was also made to the judgment, again without mention of a specific author, apart from the unanimous verdict, in the same judgment..The curative petitioner has now questioned the existence of this addenda as well, apart from questioning the drafting of the judgment itself. In this regard, the curative petition states,.“The purpose of such an addenda is unknown. Does it form a part of the judgment and law under Article 129? In normal practice, an addenda specifies if it’s an integral part of the main document. A reasonable inference that can be drawn is that since there is no such declaration, it is not an integral part of the judgment. However, it begs the question- what is the purpose of adding an addenda, if the judgment is unanimous and not a concurring opinion?”.The petition has been filed by Advocate Abhinav Shrivastava..[Read the Curative Petition]