| @ | February 21,2019

Khuda ka ghar hai Mandir bhi khuda ka ghar hai Masjid bhi

Mujhe to mere Hindu dharm ne bas ye sikhaya hai

 

Nahi hai dharm hargiz wo faqat andhi siyasat hai

Tujhe tera ye dars-e-shaitaniyat tujh ko padhaya hai

 

IT was through the aforesaid couplets that the famous Urdu poet Jagan Nath Azad had criticised the demolition of the Babri Masjid in 1992, staunchly advocating that be it a mosque or a temple, both are places of God, that it is not a religion but mere blind politics that would teach the satanic lesson of such barbaric actions. What Azad couldn’t anticipate, however, was that the actual ‘Andhi Siyasat’ or blind politics would begin almost two decades later in the civil suits concerning the Ram Janmabhumi-Babri Masjid land dispute.

The latest in the series of such political actions in the seven decade old dispute is the plea by the Indian Government before the Supreme Court for release of the excess land acquired by the Acquisition of Certain Area at Ayodhya Act, 1993 and vacation of the stay, by a five judge bench of the Supreme Court in 2003, granted in the case of Mohd. Aslam Vs. Union of India [(2003) 4 SCC 1], specifically barring any “religious activity of any kind by anyone either symbolic or actual including bhumi puja or shila puja”, from taking place in the adjoining land acquired by means of the 1993 Act, a demand oft-repeated and oft-denied.

 

Background of the case

 

The December 6, 1992 demolition of Babri Masjid led to horrendous communal clashes across the country. Resultantly, President’s Rule was imposed in the State of U.P. During this period, the Central Government promulgated Acquisition of Certain Area at Ayodhya Ordinance on January 7, 1993 which was later replaced by The Acquisition of Certain Area at Ayodhya Act, 1993 [hereinafter referred to as the “1993 Act”], by virtue of which 67.703 acres of land in and around the disputed complex was acquired by the Central Government.

The objects and reasons of the said legislation, citing widespread communal violence and deaths post-demolition, provided that the said dispute had affected the maintenance of public order and harmony between different communities in the country and as it was considered necessary to maintain communal harmony and the spirit of common brotherhood amongst the people of India, the disputed land and certain area surrounding it was being acquired to ensure the aforesaid objects.

The 1993 Act came to be challenged before the Supreme Court in Dr. M. Ismail Faruqui Vs. Union of India [(1994) 6 SCC 360], on the ground that the acquisition of the disputed area was unreasonable and non-secular whereas acquisition of the surrounding area is unnecessary being unrelated to the dispute. The five-judge bench upheld the validity of the 1993 Act and observed that while the claim of the Muslims was to the disputed area, the area surrounding it belonged majorly to Hindus.

It was further observed that the acquisition of the surrounding area was incidental to the main purpose and the intention of such acquisition was that in the event Muslim parties succeed in the adjudication of the dispute their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by exercise of rights of ownership of Hindu owners of the adjacent properties.

A decade later, on March 13, 2003, the Supreme Court while admitting a writ petition concerning certain activities in the adjoining land, issued an interim order directing that during the pendency of the petition, “no religious activity of any kind by anyone either symbolic or actual including bhumi puja or shila puja, shall be permitted or allowed to take place.”  This order attained finality when a five-judge bench, while disposing the petition affirmed the same and directed its compliance during the pendency of the suits before the High Court. The Court, while relying heavily upon the observations made in Ismail Faruqui (supra) and on the object and purpose of the Act of 1993, observed as under:

“12. The preamble to the Act itself discloses that the objective of enactment is maintenance of harmony between different communities in the country and to maintain public order. If the acquisition has been effected on that basis not only of the disputed land but also of adjacent land, this thread will run through the entire proceedings and we must bear in mind that when the dispute is not yet finally resolved, maintenance of communal harmony and peace is absolutely needed. It is no doubt true that when passions run high, demands are made for several types of activities being carried on in the adjacent land. If any such activities are carried on in such land, even before the resolution of the dispute pending before the Court, it may affect the harmony and tranquility that has prevailed for so long” (emphasis supplied).

 

 

 In 2010, the Allahabad High Court gave its voluminous judgment in the suits relating to Babri Masjid-Ram Janmabhumi, dividing the disputed property in three parts. In the appeals filed against the said judgment, the Supreme Court on May 9, 2011, ordered a stay on the operation of the High Court judgment, and directed that status quo be maintained with regard to the disputed property as well as the adjoining area, as directed in the cases of Dr. M. Ismail Faruqui (supra) and Mohd. Aslam (supra), respectively, thereby reiterating its previous considerations of maintenance of public order, communal harmony and tranquility.

As the judgment in Ismail Faruqui (supra) had clear bearing on the main issue, therefore the three-judge bench headed by the former Chief Justice of India Dipak Misra, and Justices Ashok Bhushan and Syed Abdul Nazeer, before adverting to the main appeals, heard at length the question of referring the judgment in Ismail Faruqui (supra) to a larger bench, particularly certain observations made in para 82 that “there can be no reason to hold that a mosque has a unique or special status”, which, it was argued, required reconsideration before the final adjudication of the appeals.

On July 27, 2018, the three-judge bench held in M. Siddiq Vs. Mahant Suresh Das, that there was no necessity for reconsideration as the impugned observations had been made in the context of acquisition and are to be read in that light only and not as general observations that a mosque can never be an essential part of Islam.

The case will be heard on February 26, 2019 onwards.

After much speculation when the appeals against the 2010 High Court verdict were listed on January 10, 2019 before a constitution bench of five judges, it was pointed out that one of the judges in the bench had represented a party in a criminal case relating to the Babri Masjid demolition. The matter was therefore directed to be listed before a different bench, which the said judge was not a member of.

In the meanwhile, the Central Government filed an application in Mohd. Aslam (supra), praying that the excess land acquired by the 1993 Act be restored to the original owners and the stay imposed therein be vacated. While making the demand, the Government relied upon a representation made to it by the Ram Janmabhumi Nyas, which owns about 42 acres of land out of the 67 acres land adjoining the disputed area and in the same breath stated that the Government has no objection if such land is released to the RJB Nyas.

The application states that the stay granted by the Supreme Court in Mohd. Aslam (supra), was supposed to be operational only till the adjudication of the suits by the High Court and that as per Ismail Faruqui (supra), the superfluous land, once it was decided how much land would be required for implementation of court orders, shall be returned to the original owners of such land.

Interestingly, this move is also supplemented by a separate petition challenging the 1993 Act all over again, by seven persons, having their residences in Lucknow, claiming that their right to worship in the makeshift temple in the disputed site and in the adjoining area is being violated by the operation of the 1993 Act. While the application by the Union of India in Mohd. Aslam (supra) is yet to be listed before the Supreme Court for orders, the petition challenging the 1993 Act came up for hearing before two-judge bench of the Chief Justice of India, which directed that this petition be listed before the bench hearing the main appeals.

Although the Supreme Court had observed in Ismail Faruqui (supra) that once the required area of the acquired adjoining area is ascertained, the superfluous land should be returned to its owners, it is surprising that the application by the government is completely silent on the ascertainment of the required area.

If the operation of the stay and the acquisition was meant only till the adjudication by the High Court, the timing of the present demands for the release of the adjoining land, after almost a decade of the High Court verdict, certainly raises eye brows on the intent of the demands, especially since the Supreme Court has been trying to keep the civil suits from turning into a political pursuit.

 

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