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[Video] Conclusions Of The Ayodhya Judgment Not Matched By Its Reasons: Justice (Rtd)AK Ganguly

Arabhi Anandan
5 Dec 2019 12:50 PM GMT
[Video] Conclusions Of The Ayodhya Judgment Not Matched By Its Reasons: Justice (Rtd)AK Ganguly
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Former Supreme Court Judge Justice AK Ganguly opined that the conclusions of the Supreme Court Judgment in the Ayodhya Case are not matched by its reasons.Justice Ganguly was speaking on the topic 'The Consequences of Ayodhya Judgment of Supreme Court' in an event organised by South Asia Human Rights Documentation Centre."I am reminded of what was done by Justice Krishna Iyer, the great...

Former Supreme Court Judge Justice AK Ganguly opined that the conclusions of the Supreme Court Judgment in the Ayodhya Case are not matched by its reasons.


Justice Ganguly was speaking on the topic 'The Consequences of Ayodhya Judgment of Supreme Court' in an event organised by South Asia Human Rights Documentation Centre.

"I am reminded of what was done by Justice Krishna Iyer, the great Supreme Court judge, when the Supreme Court delivered the Shah Bano judgement, the then Central government wanted to pass a legislation and it did pass legislation to nullify the fate of the judgement and criticizing that legislative endeavour of the then Central government. Justice Krishna Iyer wrote an open letter to the then Prime Minister Mr. Rajiv Gandhi. And there he said, you have a duty to speak when it is a matter of national crisis, you owe a duty to speak, maintaining silence is a delinquency. Therefore I've come here inspired by what Justice Iyer said because I think as a former judge of the Supreme Court and as a very humble student of law I have a duty to speak on this occasion within a month of the delivery of the judgement."

Justice Ganguly started with saying that he has read the judgement, except the addendum. And that he has never heard in his humble career as a judge of 18 years that there can be an addendum to a judgement. He went on by saying that the judgement is running into more than 900 pages, it concludes with its relief. He added, "after the judgement concludes, there comes an addendum. It is neither a dissenting judgement or a concurring judgement. So I have not read the addendum. Reading more than 900 pages itself was a task and I have completed the task". He said, after reading the judgement, his first reaction in one sentence is that the conclusions of the judgement are not matched by its reasons, rather they're mutually destructive and also that while the reasons are along the side, conclusions suddenly comes in a different way.

He analysed the judgment further, by saying that this dispute about Babri Masjid cannot be considered in isolation on this judgement only. He said that there are two other Supreme Court judgements of great importance and that these judgements decides some controversies, like:

1) It is said that the mosque was built in 1528 AD by or at the behest of Babur which has been concluded. It is also said that the mosque was not built on a vacant land, there were underlying structures. This judgement discusses in great details, the excavations by the Archeological Survey of India. And discussing those in details and relying on them, the judgement mentions that there were some 12th century structures underlying underneath the Babri Masjid.

2) The Masjid was built on the 16th century, the structures underneath are of the 12th century. There is no history of the intervening 4 centuries. And the judges have concluded that it cannot be said that by demolishing a temple the mosque has been built. This is a conclusion of great importance, says Justice Ganguly, because, the previous judgment where the mosque was demolished, in Ismail Faruqui verdict, the government reference was precisely on this point which the learned judges refused to answer, but this has been answered now.

Now, the judgment has noted, several attempts of encroachment made by Hindus on this mosque. While explaining these aspects briefly, he mentioned that, it is said that in 1856 and 1857, communal riots took place as Hindus tried to encroach the land and the British government constructed the grilled brick wall outside the mosque, bifurcating the inner courtyard where the mosque was situated and the outer courtyard where the Hindus were offering their prayers.

Further on analysing the judgement, he pointed out that, according to the Supreme Court, in the present case, evidence is there of a construction of a wall separating the inner and outer courtyard and there was construction of a platform called Ramchabutra by the Hindus on the outer courtyard where it was considered as the place of worship by the Hindus. It was constructed in the year 1856 and 57, because the Hindus could not enter the mosque as the Britishers prevented them by constructing a brick wall with grill. Then in 1885, about 30 years thereafter, the Hindus filed a suit. This suit was filed by Mahant Raghubir Das, claiming a right to build a temple on the RamChabutra and seeking an injunction from others restraining him from constructing the temple. The suit was dismissed on the ground that to allow the construction of a temple on the proximity of a mosque, will create law and order problems. Then the Hindus challenged this decision by filing the first appeal which was eventually dismissed with the findings that the mosque was constructed 358 years ago and there will be law and order problem and the process cannot be reversed by allowing a temple to come up. Later, the second appeal was taken before the Judicial Commissioner of Oudh and the same was dismissed on 26th march 1986 holding that there is nothing to show that the Hindus (who is the plaintiff) is the proprietor of the land, which is a very important finding according to Justice Ganguly; and also that the mosque was in existence 350 years ago. He noted that, when the Hindus were prevented from constructing the temple, in 1934, there were communal disturbances and the mosque was damaged and it was restored by the British government and fines were imposed on the Hindus.

According to Justice Ganguly, the Britishers are the colonial masters since they protected the rights of minorities better than the present constitutionally formed government where secularism is the basic feature. He further added that, even though secularism was not a basic feature under the Government of India Act back then, they wanted to maintain peace, law and order. He went on quoting the Ayodhya judgement where it was mentioned that, after the Constitution was adopted on 26th November, 1949, on the night between 22nd and 23rd December, 1949, Hindus idols were surreptitiously placed inside the mosque. An FIR was launched for desecrating the mosque alleging the commission of offences under the IPC sections 147 (rioting), 295 (defiling a place of worship) and 448 (house-trespass) by the SI of police. And in that connection, a report was given by the Waqf commissioner. The report has been referred to by the learned judges in the concluding portion. Justice Ganguly went on quoting some of the important parts of the report where it says, "the State authorities acknowledge the threat posed by the members of the Hindu community to the mosque and opposed the people from going there to pray. We, the State authorities could see the potential desecration and attack on mosque and the worshippers, but to no state avert such an incident". He further pointed out from the report, that from the internal communication of the officials of the State, it is clear that the desecration of the mosque was planned as the Superintendent of police had informed the Deputy Commissioner, the plan of the Hindus to force the entry to the mosque with the intention of installing idols. The desecration on December 22-23 midnight 1949, was a planned attack the seeds of which were sown with the customs dated March 19, 1949, when the temple of Ram janmbhoomi was for the first time mentioned and not from time immemorial. This is the report of the Waqf Commission And as a last attempt, the mosque was demolished on December 6, 1992.

Further he referred to the judgement of the Supreme Court's 5 judge bench, Ismail Faruqui's case. It was not a unanimous judgement. What was challenged in Ismail Faruqui's case after the demolition of the mosque, were two things; one was the special reference, the presidential reference under article 143 of the Constitution. Whether a Hindu temple or a Hindu religious structure existed prior to the construction of the Babri Masjid in the area where the structure stood. This was the reference which the court refused to answer. The reasons over these issues which the suits are pending , now been decided by the present judgement by saying that no Hindu structure existed and no Hindu structure was demolished to construct the mosque. The other question which was challenged before the Supreme Court in Ismail Faruqui case was the constitutional validity of an act of acquisition of the land under the Land Acquisition Act, which the government did after the mosque was demolished. Three judges mentioned that the acquisition is valid and two judges said that it is not valid because its a place of worship where the namaz is offered therefore it is not valid.

Justice Ganguly further discussed this judgement by referring the excerpts of Chapter 7 of Hindu Law & The Constitution, authored by him where he says, that the demolition of Babri Masjid structure at Ayodhya on 6 December, 1992 was the most reprehensible act. The perpetrators of this deed, struck not only against a place of worship but also at he principles of secularism, democracy and the rule of law enshrined in our Constitution. He quoted "What happened on 6 December 1992, was not a failure of the system as a whole but was the wisdom inherent in India's Constitution, the power of tolerance and brotherhood and compassion that was so vividly formed the life of independent India. It was a great pity, that the constitutionally elected government could not discharge its duties in a matter of sensitiveness of magnitude and therein lies the failure, therein lays the betrayal. What was demolished was not merely an ancient structure, but the faith of the minorities in the state of justice and fairplay of the majority. It shook their faith in the rule of law in the constitutional processes. A 500 year old structure which is defenceless and its safety was the sacred trust in the hands of the State Government was demolished, this is how the Supreme Court looked at it, the previous Supreme Court in Ismail Faruqui case. Even then, the majority judgement in Ismail Faruqui upheld the acquisition internally on a very strange ground, that this offering of namaz in a mosque is not an essential tenet of Islam". He added, "I think everybody present here will be shocked. How could the court hold that. A mosque is not an essential part of the practice of the religion of Islam and namaz prayer by Muslim can be offered even in open, therefore it can be acquired. But this has also been negatived in the present judgement. What has been said in the present judgement is that, which has been stated in 114 and 115 pages in the judgement, that the true test is whether those who believe in worship have faith in the religious efficacy of the place where they pray. The belief and faith of the worshipper in offering namaz at a place which is for the worshipper of a mosque cannot be challenged. We must firmly reject any attempt to leave the court to interpret religious doctrine in an absolute and extreme form and question the faith of worshippers nothing will be destructive of the values underlying Article 25 of the constitution".

He added, "the Supreme Court in the present judgement has not accepted the majority reasoning therefore, the minority view is virtually accepted by this judgement. What was stated in the minority judgement in Ismail Faruqui is that, the object is to preserve and protect all religions and therefore adherence of the religion of the majority of the Indian citizens, make a claim upon an assail the place of worship of another religion and by dint of numbers create conditions that are conducive to public order and it is the constitutional obligation of the state to protect the place of worship and to preserve public order using for the purpose of such means and forces of law and order as are required. It is impermissible under the position of the constitution for the state to acquire the place of worship to preserve public order. To condemn the acquisition of a place of worship in such circumstances, is to face the principle of secularism from the Constitution. This was the minority view".

He further added, today minority view stands upheld because the Supreme Court has held that you cannot test the correctness of the worshippers who are offering prayers in place. He opined that, "If I offer my prayer in place and call it a mosque, that cannot be questioned by the court. With the previous findings of the learned judges of the majority view, that offering prayer in a mosque is not an essential tenet in Islam, which in my very humble criticism is an absurd view has not been accepted today. Today, the minority's view in Ismail Faruqui stands vindicated. So these are the issues why the reasons are not matching the conclusion of the present judgement.

"Now, we shall see what happens after holding on this. This present judgement is repeated with observations that we cannot decide title on the basis of faith and belief. These had been said repeatedly throughout the judgement. And as said, it has been also held that the mosque was not build by demolishing a temple. But, kindly see the conclusion, the Muslim community offered prayers in the disputed structure as evident from the agreement, in 26 July 1936 by payment of arrears and salary to the Pesh Imam, the testimonies of the witnesses, acceptance during the course of arguments by the plaintiffs of suit no.5 that namaz were offered in the mosque till 16th Dec 1949. It was said in the Waqf Commissioner's report as mentioned in the judgement, that the rights which the Hindus claim are based purely on the illegal acts (quoting from the judgement) :

a) Preventing or harassing muslims when they proceeded to the mosque to offer namaz.

b) Destroying a part of the mosque in 1934 leading to repairs and the imposition of fine on the Hindus;

c) Desecration of the mosque on the 22/23 December 1949; and

d) Demolition of the mosque on 6 December 1992 in violation of the status quo orders of this Court.

This disputed structure has in consequence has always been a mosque which remained in possession of the Muslims from 1528 until the desecration the 22/ 23 December 1949. Even then namaz was offered. These are the findings in the judgement". He further mentioned certain portions of para 798 of the judgement, where it says, after setting up of the grill- brick wall, the structure of the mosque continued to exist and there is evidence to indicate the namaz was offered within its precincts. The report of the Waqf inspector of December 1949, indicated that the Muslims were obstructed in free and unimpeded access to the mosque for the purpose of offering namaz. However there is evidence to show that namaz was offered in the structure of the mosque, the last Friday namaz was on 16 December, 1949. Muslim never abandoned the mosque, the exclusion of the Muslim from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of Muslims on that occasion was not by any lawful authority but through an act which was calculated to deprive them their place of worship. During the pendency of the suit, the entire structure was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.

He further opined, "the allotment of land to the Muslims is necessary and on these findings the conclusion comes. The allotment of land is necessary because on a balance of probabilities, the evidence in respect of the possessory title claim of the Hindus to the composite whole of the disputed property stands on a better footing. How does it become a better footing? Hindus have always encroached upon it illegally, the mosque always existed. Does the demolition of the mosque, constitute a better footing of the possessory title of the Hindus? An act which has been so wrongly condemned by the Supreme Court judgement in Ismail Faruqui. The Muslims were dispossessed as per the finding of the judge (5 judge bench) from the desecration of mosques on the 22/23 December 1949 which was ultimately destroyed on 6 December 1992. Again it is mentioned that there is no abandonment of mosque by the muslim. Then the court in exercise of its power under Article 142 of the Constitution to ensure that the wrong committed must be remedied. And, how is it remedied? It is necessary to provide restitution to Muslim community for the unlawful destruction of their place of worship that is done by giving them a place at a separate 5 acre land". He questions, "is that the way a justice has to be done? Throughout the judgement is loaded in favour of the Muslim, that is the fact and about this destruction of the mosque. He points out one more judgement, in Ismail Faruqui's case of the Supreme Court in State v. Kalyan Singh delivered on 19 April, 2017. Over the destruction of the masjid, there are criminal cases, in fact two sets of cases, one against the kar sevaks and one against a few of the very well known names in the Indian politics, Advani, Murali Manohar Joshi, Balkrishna Thackarey, Kalyan Singh and others. Suddenly the CBI court drops charges against these people and proceeded against the kar sevaks. Against that, a revision was moved to the High Court, and the High Court rejected it. Then CBI came to the Supreme Court. In the present case, Supreme Court reverted the High Court judgement and directed that there should be a joint trial, withdrew the case that was pending and not making any progress in Rai Barelly and directed a joint trial at Lucknow. The judgement was delivered by saying that, crimes that shake the secular fabric of the Constitution of India, have allegedly been committed almost 25 years ago i.e., the demolition of the mosque. The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the aforesaid alleged offenders in a joint trial.

What the Supreme Court did was to give the following directions; the Court of Sessions, will frame an additional charge under Section 120B i.e., criminal conspiracy againstMr. L.K. Advani, Mr. Vinay Katiar, Ms. Uma Bharathi, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari Dalmia. and other provisions of the Penal Code mentioned in the charge sheet filed by the CBI against several other names. And also against Mr. Kalyan Singh who was the then Governor of Rajasthan. The Supreme Court said, Mr. Kalyan Singh being the Governor of Rajasthan is entitled to immunity under Article 361 of the Constitution as long as he remains as the Governor. The Court of Sessions will frame charges and move against him as soon he ceases to be the Governor. Justice Ganguly added, "such is the enormity of the crime that shook the conscience of the Supreme Court and how the trial is conducted". Further on examining the judgement in the case of State v. Kalyan Singh, he quoted, "the Court of Sessions will transfer the proceedings from Rae Bareilly to Lucknow and frame additional charges within four weeks and take up all the matters on a day to day basis and also that the case shall not be adjourned on any ground except when the Sessions Court finds it impossible to carry on the trial for that particular date. In such an event, next hearing must be done on an approximate date and reasons for the same shall be recorded in writing. And the Supreme Court directed the Sessions Court to complete the trial with a period of 2 years from the date of receipt of the judgement". He added, "Supreme Court was so shocked by the enormity of the crime that it gave such extraordinary directions. And this is a decision binding on the statement of the CBI which is a Central Government agency. And now the Central Government has directed to frame a scheme on the same plot of land. Kindly consider the contradiction, in one way, the Supreme Court directing the trial to be conducted with such seriousness and to be completed within two years, and not sparing anybody, even the Governor because it shook the secular fabric of the country and the other way, for the same plot of land, the act of demolition is considered a better claim to get a possessory title and the Central Government is directed to hand over the land to the parties demolished it.

In this trial, all the accused persons are Hindus. It is also considered in the judgement, that all the accused are Hindus, i.e., Vishwa Hindu Parishadh (VHP) and its allied organisation for the restoration of a site which is said to be the birthplace of Shriram in Ayodhya which has not been proved. What has been proved is, no temple was demolished to construct the mosque, till 6 December 1992. The site was occupied by the structure erected in 1528. The VHP and its allied organisation said its the birthplace of Sriram and the temple was destroyed on Babur's command and masjid was erected in its place. This claim by VHP and its allied organisation has been relied on the present judgement on the basis of excavation by the Archeological Survey of India which has been accepted by the court. Where is the claim of the better possessory title by the Hindus? he asks, and for doing this, the Hindus have to face a trial and the Supreme Court has not spared anybody and that the present 5 judges bench, without referring to these judgments delivered the judgement. The judgement has devoted more than 100 pages to decide whether a hindu idol is a legal personality and to decide that, they've gone to the extent of deciding whether a ship, a company is a legal person and nothing else is considered. And ultimately the bench said there is no expressed or implied dedication of the land.

Lastly, on speaking about the Ayodhya judgement, Justice Ganguly said,

" I am not criticizing the judges. They are learned people. I am just trying to find answers on the basis of what has been said by the Supreme Court and I will just explain to you just one article of the Constitution. Art. 26 of the Constitution which has not even been referred by the Supreme Court. It cannot be disputed that when the Constitution came in 1950, the masjid stood, every member of minority saw that there is a masjid because the Supreme Court has said in Ismail Faruqui, that this is a mosque of special importance to the Muslims, well known mosque of special importance"

He explains, "on that date what is the right of the Muslims, the members of a minority community? Now, comes the role of Article 26 (which is Part C, Fundamental right) of the Constitution, where it says; subject to public order, morality and health, every religious denomination or any section thereof shall have a right to establish and maintain institutions for religious and charitable purposes. The masjid was not established on that day, but on that day it was there to maintain and it is subjected to only three things, i.e., public order, morality and health.

He also quoted the case of S.R. Bommai v. Union of India, where the judgement was delivered after the Babri Masjid was demolished, the portion where it mentions about secularism, it says, " As stated above, religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution. We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism. It is our cardinal faith. Any profession and action which go counter to the aforesaid creed are a prima facie proof of the conduct in defiance of the provisions of our Constitution". While expressing his grief regarding the judgement, he said, " with great respect to the learned judges, I cannot reconcile with the concluding part of the judgement and the reasoning and the way the demolition of the mosque. This dispute has been considered by previous benches of the Supreme Court".

Justice Ganguly concluded the address by a very pity observation made by Justice Frankfurter in the case, Dennis v. United States,

"History teaches that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competent political economy and social pressures"

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