Ibad Mushtaq

| @imibad | November 11,2019

MORE than a century-old dispute; a battery of lawyers, from nonagenarian to vicenarian, representing various parties; an impugned judgment running in thousands of pages and evidence running in twice as many pages; various books, historical accounts, maps, reports; faith of two major religions of the country; several attempts at mediation and forty days of regular hearings before a 5 Judge Bench of the Supreme Court of India, which sometimes stretched beyond the regular court hours, has culminated into the 929 page judgment passed by the 5 Judge Bench of Supreme Court, which had earlier reserved its judgment on 16th October 2019, on the most contentious issue in the country at present, emotionally, politically and religiously – the Ramjanmabhumi-Babri Masjid dispute.

“The judgment is one. It is unanimous”, proclaimed the Chief Justice of India Ranjan Gogoi, before starting to read out excerpts from the judgment in the Chief Justice’s Court, on November 9, 2019 in the jam-packed courtroom. The common judgment has been authored by all the 5 judges that had heard the matter viz., Chief Justice Ranjan Gogoi and Justices S.A. Bobde, D.Y. Chandrachud, S. A. Nazeer and Ashok Bhushan. A 116-page addenda is also available with the judgment on the issue that whether disputed structure is the holy birth place of Lord Ram as per the faith, belief and trust of the Hindus. Interestingly, while the common judgment records that one of the judges, while agreeing with the reasons contained in the judgment, has recorded separate reasons on this particular issue, who amongst the 5 is that judge has not been disclosed, neither in the judgment, nor the addenda. This is in addition to the fact that in a departure from earlier judgments of the Supreme Court, the judgment in this dispute, though pronounced by the Chief Justice, does not disclose who the author of the judgment is.

 

Suit No. 3: Nirmohi Akhara

 

While proceeding with the batch of appeals, the Court in its judgment has found Suit No. 3, filed by Nirmohi Akhara to be barred by limitation. This conclusion is founded upon the premise that the Suit filed by the Akhara was to be governed by Article 120 of the schedule to Limitation Act, 1908, which was in force at the time when the property was attached and handed over to the receiver after placing of idols in 1949.

Having found that the claim of Nirmohi Akhara for management and charge rests on its assertion of being a shebait and that in the case of a shebait, the elements of office and of a proprietary interest are blended together, the court has held that the suit by the Akhara was a suit for restoration of management and charge and not one of possession and therefore will be governed by Article 120 of the Limitation Act, 1908, which prescribes a limitation period of six years and would not fall under Article 142 of the 1908 statute, which provided 12 years period for instituting a suit, thereby rejecting the arguments advanced by Sr. Adv. Sushil Kumar Jain with regard to Article 142 being applicable. Also rejecting the contention of Nirmohi Akhara that since it had been deprived of management and charge of the disputed site there existed a continuing wrong with a cause of action arising every moment, the court concluded that the cause of action for the suit arose on 5 January 1950 and the ouster of Nirmohi Akhara had taken place therefore, for purposes of Article 120, the Suit having been filed on 17 December 1959, it was barred by limitation.

Although Suit No. 3 was found to be barred by limitation, while analysing Suit No. 5, the Court noted that the maintainability of Suit 5 hinges on the question whether Nirmohi Akhara were shebaits, and whether they have acted in a manner prejudicial to the interests of the idol. The court further noted that what had been argued by Mr. Jain in support of the contention that the Akhara was a de facto and undisputed shebait of the suit property were stray acts or intermittent acts of management which would not vest a person with the rights of a de facto shebait.

 

Suit No. 5: The Deities

 

Before adjudicating upon the rival contentions in the suits, the court has discussed elaborately, the aspect of juristic personality of the first and the second plaintiffs in Suit No. 5, the claimed deities Bhagwan Shri Ram Lalla Virajman and Shri Ramjanmabhumi, respectively. While not going into the aspect of faith and belief of the worshippers of Lord Ram in detail, the judgment recognized the juristic personality of the first plaintiff by holding that first plaintiff has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent any express dedication or trust. Thereafter the court has proceeded to analyse the claim of the second plaintiff being a deity in its own and signifying the spirit of the divine. The judgment while not denying the significance of the worship of the birthplace of Lord Ram, has noted that recognition of the religious significance of a place as a place of public worship is conceptually distinct from recognising the place as a juristic person. The Court held further that absent a manifestation, recognising the land as a self-manifested deity would open the floodgates for parties to contend that ordinary land which was witness to some event of religious significance associated with the human incarnation of a deity is in fact a Swayambhu deity manifested in the form of land. The judgment notes that in the legal disputes dating back since 1885 with respect to the premises, it has been treated as an immovable property and that at no point until Suit 5 in 1989 was ever a claim was made with regard to conferment of juristic personality on the land itself.

On the issue of limitation, the Court found Suit 5 not to be barred and within time. The Court has held that by virtue of the deity not being a party to the earlier suits, its interests and concerns were not being adequately protected in the earlier suits including those instituted by the Hindu parties. While analysing the issues in Suit No. 5, the Court has also considered the report of the excavation of the disputed site by the Archaeological Survey of India (ASI). Agreeing largely with the interpretation of the ASI report by Justice Sudhir Agarwal in the 2010 Allahabad High Court verdict, the judgment holds that the Babri mosque was not constructed on vacant land and that as per the findings of the ASI there existed an underlying structure beneath the disputed site which was not of Islamic origin. On the basis of the remnants excavated by ASI, the Court has observed that some of the artefacts could may as well have belonged to Buddhist or Jain structures but were certainly not of Islamic origin. While coming to these conclusions, the judgment has accepted the the conclusion which drawn by the ASI that the nature of the underlying structure and the recoveries which have been made would on stylistic grounds suggest the existence of temple structure dating back to the twelfth century A.D., as being a conclusion which, on a balance of probabilities, is supported by evidence.

After the analysis of the ASI report however, the Court has thought fit to give three caveats – Firstly,that though the excavation has shown the existence of a circular Shiva shrine dating back to the seventh to ninth century A.D, the underlying structure belongs to twelfth century A.D. The circular shrine and the underlying structure with pillar bases belong to two different time periods between three to five centuries apart, observes the judgment; Secondly, that there is no specific finding in the ASI report that the underlying structure was a temple dedicated to Lord Ram; and thirdly, that the ASI has not specifically opined on whether a temple was demolished for the construction of the disputed structure.

Dealing with the unanswered question of demolition, the judgment holds that the existence of the ruins of an underlying structure cannot be a reason in itself to infer that the structure had been demolished for the construction of a new structure which rests on its foundations. The judgment notes that the ASI has desisted from giving a specific finding on whether the underlying structure was demolished to pave way for the construction of a mosque. Major reliance had been placed in Suit 5 on the accounts of various travellers and the gazetteers in support of the contention for the existence of a practice of worshipping Lord Ram at the disputed site. Upon an analysis of such accounts the judgment observes that the same have been dealt with caution. It has been observed that the statements contained in travelogues as well as the contents of gazetteers are indicative of opinions on matters which are not amenable to be tested by cross-examination and in a dispute pertaining to possession and title between parties, historical accounts cannot be regarded as conclusive, the Court must decide the issues on the basis of credible evidentiary material.

 

Suit No. 4: Sunni Central Waqf Board

 

Suit No. 4 was filed by the Sunni Central Waqf Board on 18 December 1961 seeking a declaration to the effect that the disputed structure was a public mosque known as Babri Masjid and for delivery of possession. Before delving into the issues and the findings by the High Court in Suit No. 4, the judgment has first dealt with the primary dispute relating to the characteristics of a valid mosque. This was necessitated due to the arguments by Mr. P.N. Mishra appearing for Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti, one of the defendants in Suit No. 5, who in his contentions, relying majorly on Islamic texts including the Holy Quran and interpretation of Hadiths, had proposed that the disputed structure lacked the basic essentials of a valid Islamic mosque as per Islam.

After analysing his submissions in this regard the judgment opines that whether the building could be a mosque in accordance with the tenets of the Shariat was of no significance since the conduct of those who believed and worshipped would be the determinative factor for determining the nature and use of the property in question. It further observed that the extreme and even absolute view of Islam sought to be portrayed by Mr P N Mishra does not emerge as the only available interpretation of Islamic law on a matter of theology. Hence, in the given set of facts and circumstances, it is inappropriate for this Court to enter upon an area of theology and to assume the role of an interpreter of the Hadees. The true test is whether those who believe and worship have faith in the religious efficacy of the place where they pray. Unhesitatingly rejecting the arguments advanced by Mr. Mishra, and terming any attempt in leading the court to interpret religious doctrine from an absolute and extreme standpoint while questioning the faith of worshippers, as being destructive of the values underlying Article 25 of the Constitution, the Court held that being a secular institution, set up under a constitutional regime, it must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.

On the issue of limitation the Judgment found the Suit No. 4 to have been filed within the prescribed period of limitation being covered by Article 142 of the Limitation Act, 1908, which provided a period of twelve years for instituting a suit. Opposed to the finding of the Allahabad High Court which had found Suit 4 to be barred by limitation, applying Article 120 of the 1908 statute, the Supreme Court has held that the suit in essence and substance was governed by Article 142 and that the suit, having been filed on 18 December 1961 was within a period of 12 years from 23 December 1949 and hence within limitation.

While dealing with the aspects of possessory title of Muslims over the suit land and its dedication as waqf by user, the Court while pointing out that there is no evidence of possession, use or offering of worship in the mosque prior to 1856-7 has held that no conclusion can be drawn that prior to 1857, the disputed site was used for worship by the resident Muslim community. Analysing the evidence and the contentions further, the judgment points out that the evidence adduced did not demonstrate that the entire disputed property was utilised by the resident Muslim community to the exclusion of others and that it was evident and admitted that the outer courtyard was in fact used by and was in the possession of the devotees of Lord Ram, thereby rejecting the contention with regard to declaration of the disputed property as being a waqf due to long use. The Court has further elaborated that the consequences which would be borne out in recognition of the entire disputed property as waqf by user was a mirror image to the claim of the plaintiffs in Suit 5 of recognising the land itself as a juristic person inasmuch as the consequence of both would be the destruction of the rights of another community to offer worship by virtue of the internal tenets of a specific religion which have been recognised for a specific purpose.

In a similar manner the alternate plea in Suit No. 4 of adverse possession and that based on the doctrine of lost grant was also rejected by the Court in its judgment pronounced on Saturday. The judgment observes that a person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous – possession which meets the requirement of being‘nec vi nec claim and nec precario’.  In the foregoing analysis under the head, the Court while pointing out the impossibility of proving the case of open and uninterrupted possession has observed that despite the existence of the structure of the mosque, possession as asserted by the Muslims cannot be regarded as meeting the threshold required for discharging the burden of a case of adverse possession. In arriving at the conclusion, judgment notes that the Suit No. 4 was instituted seeking declaration and possession of the entire property marked by letters ABCD in the schedule map in the plaint, which included both, the inner and outer courtyards and that the evidence in the records indicates that Hindus, post the setting up of the railing have been in possession of the outer courtyard.

 

Analysis on Title & Reliefs

 

On comparing the rival contentions in Suit 5 and Suit 4, the Court has noted that the disputed site has witnessed a medley of faiths and the co-existence of Hindu and Muslim practices, beliefs and customs, that the distinctive features of the site, embodying both Hindu and Islamic traditions led to the creation of a space with an identity of its own. While pointing out the shared co-existence of both communities in using the disputed site, the Court in the ultimate analysis has found that a reasonable inference based on a preponderance of probabilities can be made that there was continuum of faith and belief of the Hindus that the “Garbh-Grih” was the place of birth of Lord Ram both prior to and after the construction of the wall (Seperating Ram Chabutra and the inner courtyard). The use of the area within the railing by the Muslims was contentious and their access to the inner courtyard was landlocked; the only access being through the two gates to the outer portion and the area which were in the control of the Hindus. However, while holding that the Hindus had a better title inasmuch as their use of the outer courtyard was continuous, the court has also noted that preventing the Muslims from accessing the disputed premises could not mean that they had no claim to or had abandoned the disputed site. However, the judgment notes, that the case relates to deciding the title of the entire composite structure.

The Judgment therefore holds that on the balance of probabilities, there is sufficiet evidence to indicate that the worship by the Hindus in the outer courtyard had continued unhindered while on the other hand the Muslims while using the inner courtyard as a mosque had not offered any evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century, again holding that evidence, on a preponderance of probabilities, would establish worship by the Hindus prior to the annexation of Oudh by the British in 1857 and setting up of the grill-brick wall separating the two courtyards. However, terming the placing of idols in 1949 under the central dome of the Babri Mosque and the consequent ouster of Muslims as desecration of the mosque and an act which was calculated to deprive them of their place of worship and taking into account the subsequent demolition of the structure in 1992, the judgment observes that the Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.

Resultantly, while Suit 5 has been decreed, Suit 4 has also been partly decreed by Court in directing the allotment of alternate land to the Muslims for the construction of a mosque and associated activities, using its powers under Article 142 of the Constitution of India thereby holding that “Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.”

Also read: Babri conundrum: Ismail Faruqui verdict and the need for reconsideration

Also read: [Book Review] Babri Masjid: 25 Years On…, Edited by Sameena Dalwai and Ramanathan, Indian Journal of Secularism, Special Issue

Also read: Babri Masjid case: Case coming up before SC on eve of 25th anniversary of demolition, what lies ahead?

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