India has a secular democratic constitution which mandates the State to maintain equidistance from all the religions. It also, at the same time, confers special rights and privileges on the religious minorities in egalitarian spirit. Supreme Court is the chosen Institution for upholding the Constitution because this is the oath expressly subscribed to be a judge. In this article, the attempt is to examine whether the "Masjid judgment" measures up to the above principles of our secular and democratic Constitution. An in-depth analysis of the judgment would show that it does show a definite majoritarian tilt, which has crept in sub-silentio. Some may disagree but this is my reply to them. I have, therefore, made a detailed analysis keeping in mind the historical perspective which is necessary.
The undeniable position was that the masjid was established in 1528, by one Mir Baki under the patronage of Babur. Consequently, it came to be known as Babri Masjid with "Allah" inscribed at crucial places on the outer walls, signifying that it is "God's abode". What can be the natural objective of construction of a mosque like any other abode of God? The objective could not have been to initiate worship of the Hindu Gods and it would, therefore, be irrational to assume that the Hindus worshipped in the Masjid during the Mughal rule. The logical presumption would be that only those for whom the Mosque was built worshipped in it by offering 'namaz'. The Mosque being a community phenomenon, only Muslims could have been in possession, worshipping all throughout for more than 300 years till the riots of 1855-58.
There is no evidence of any dispute before 1855-58 rioting and forced entry into the Masjid courtyard. Construction of a 'Chabutra' took place in the outer courtyard and an 'idol' was placed on it. All this happened, at the fall of the Mughal empire and the commencement of the British rule. It will be Important to note the sequence of repeated exercise of force by the Hindu community:
These instances make it apparent that the entry of the majority community into the mosque, their subsequent possession and worship, were facilitated by encroachments based on force and violence. Supreme Court has noticed this in clear terms, yet for some reason it hesitated to proclaim it as forceful encroachment. Instead it proceeded to adjudicate on the acquiring of the possessory title based on these forceful encroachments respectfully called possession.
Five suits were filed, of which 4 were on behalf of the Hindu Community, while one was representative of the Muslim community. In the said suits, the following issues basically arose.
Importantly, only Muslims had claimed title based on hostile possession and not the Hindus.
So far as the case of the Hindu community is concerned, the Court has given clear findings against them. It was held that the claim of the Hindus, based on faith and belief, could not be adjudicated by the Court. Likewise, the claim of rectifying a historical wrong is also incapable of adjudication under the law. The Court further went on to state that the Hindus principally relied upon the report of the Archeological Survey of India(ASI) but the said report, after extensive excavations, does not at all establish that there was a pre-existing Temple which was demolished and destroyed for construction of the Mosque. The Mosque was not built on the ruins of the Temple. The Supreme Court further found that there was nothing to show that there existed a Ram Temple constructed in the 12th Century AD as claimed and it continued to exist for more than 300 years before the alleged demolition. In the end, it was also found as a fact that the construction of the Mosque in 1528 was undeniable and admitted between the parties.
Having declined the claim of the Hindus based on a historical wrong. The court proceeded to adjudicate on the issue of the possessory title of the Hindu community. The title that was based, as indicated earlier, solely on the instances of encroachment, violence and rioting from 1855 onwards. It is important to notice that by this time the Mughal era had ended and the British had taken control. This is important because it is impossible to imagine that a Mosque that was created for the Muslim community in the year 1528 was in the possession of the Hindu community who worshipped therein. The majority community had, bit by bit, post 1855-58 forced itself into the Mosque, displacing the Muslim community and eventually leading to its demolition. Change of ruler changed the entire concern of the administration. The forceful Hindu incursions into the Mosque were constantly overlooked by the British only to buy peace and calm. Maybe the Britishers had their game of divide and rule in mind. Whatever be it, the fact remains that the administration was loathe to intervene due to clear absence of secular aspirations. In course of time, the emboldened Hindu community dispossessed the Muslim community completely from the disputed Mosque.
The case of the Muslim community was dealt by the Supreme Court with the following findings:
It is, therefore, apparent that the case of the Muslims had been entirely accepted when the Court recorded a finding that not only the placing of idols under the Dome but also the demolition of the Mosque, were illegal acts on the part of the majority community.
Coming to the possessory title which the Court explored after rejecting the claim of the Hindus, the sum and substance of all the recorded findings is that both the Muslims and the Hindus carried on their worship and possessions in the earlier stated positions. The outer courtyard being in the exclusive possession of the Hindus, while the Muslims continued to offer Namaz in the inner Courtyard till 1949. Therefore, their possession cannot be denied so far as the inner courtyard is concerned. It was a case of both the communities being in possession of the Mosque jointly, though in their respective areas. This joint possession continued till the demolition of the Masjid.
Having collated the facts and findings recorded by the court, it would be extremely relevant to notice the inconsistencies and the incongruities in its verdict. The first anomaly is that after finding that the Masjid was undeniably constructed in 1528 not after demolishing the Ram Temple, that it was as per Islamic tenets and continued to be so, and that the ASI report does not establish the case of the Hindus based on faith and belief, the Court poses the question "Whether Muslims worshipped in the Mosque from 1528 to 1855/58 riots and were in its possession?". Apparently, this was a wrong question posed and, therefore, the court came to a wrong answer. Having found that the Mosque was erected in 1528 not after destroying the Temple, there could not have been any doubt about the possession and worshipping of the Muslims in the Mosque. Surely, the Hindus could not have been worshipping in the Mosque from 1528 to 1855/58 riots. This was a clear case where a legal and natural presumption should have been raised in favour of the Muslims for whom the Mosque was constructed. Surprisingly, the Court did not draw the legal presumption under Section 114 of the Evidence Act. Why? Could be anybody's guess. The need for presumption was further necessitated by the fact that it was never the claim of the Hindu Community that they were either worshipping in the Mosque and were in its possession prior to 1855. Their whole claim is based on possession post 1855. The right and the fair approach would have been to draw the legal presumption and, thereafter, analyze the evidence on record to see whether the said presumption in favour of the Muslim community was rebutted by the other side. The Court is disturbingly silent about the absence of evidence showing possession or worship of Hindus between 1528 to 1855/58. This silence is difficult to gauge.
The next incongruity appears to be that after noticing that the Muslims have never abandoned their claim over the Mosque and continued to worship in it upto 1949, the date of the desecration of mosque, the Court failed to record a similar possessory title in their favour as co-owners despite noticing that the Muslims had been, bit by bit, pushed out by force by the majority community. If such an illegal and unauthorized possession based on force could fetch possessory title to the Hindus over the outer courtyard, then there is no reason why a joint possessory title could not have been recognized in favour of the Muslims. There is silence once again. On the face of its findings, referred to above, the Court thereafter attempted to settle the issue on the principle of justice, equity and good conscience embedded in Article 142.
The last incongruity and irrationality results due to the faulty application of the principle of equity, justice and good conscience as well as Article 142. Having recorded their findings as above, it appears that the judges were having difficulty in reconciling the conclusions, on facts and issues, to the result they had in mind. It almost appears that the court did formulate their declaration before deciding on the facts and issues. The court tried to get over it by resorting to the principle of justice, equity and good conscience, as well as doing complete justice under Article 142 of the Constitution. A mere reading of the judgments would disclose that the declaration in favour of the Hindu community over the disputed site not only appears to be abrupt but also inconsistent and incongruous.
Every Judge of the Supreme Court takes an oath to uphold the Constitution but strangely this verdict does raise an issue "have they?". Article 142 is a principle of justice and equity, to enable the court to do a complete justice between the parties to the dispute. Pushing out the Minority Community of their possession on the Mosque, by surreptitious placement of idols in it in the year 1949, followed by its illegal demolition in the year 1992, certainly deserved much better equity and justice than dispensed to them. De-recognizing even a partial claim to title of the Muslim community tantamounts to pushing them out with aid of State force.
There can only be two reasons for giving exclusive control and rights to the Hindus over the disputed land where once stood a Mosque. It could either be that the members of the bench of the Supreme Court did suffer from a majoritarian tilt, or it could be that they thought like an administrator, this being a plausible way of buying peace as the Britishers did. Apparently buying peace becomes the principle of equity and good conscience to temper with justice. Perhaps based on the assumption that since both cannot survive together, the minority position must yield to the wish of the majority, irrespective of the illegalities. My question is "what principle of equity and good conscience, or doing of substantive justice under article 142 would sanctify this?". In either of the cases, the minority suffers even though our secular and democratic Constitution mandates equality for all religious groups, especially the minorities on whom it confers special rights. The court may have to answer if this is this the way to honour our holy bible, the Indian Constitution and its secular spirit. The verdict does set a shaky and questionable template for the future.
Views are personal only.
(Author is Senior Advocate at Supreme Court of India)