TWO INTERPRETATIONS of the phrase ‘possession of land’ are being forwarded by the Supreme Court of India – first, that the ‘land’ and the ‘structure’ built over it are two separate entities, and second, that the ‘land’ and the ‘structure’ built over it should be considered one and the same. The second understanding, that ‘land’ includes things embedded in the earth such as scaffoldings for a building, has been a well settled principle of property law for centuries. The first formulation, however, is a recent development stemming from novel interpretations by the Supreme Court without any prior judicial basis.In the Babri Masjid-Ram Janmabhoomi(2019) decision, the Supreme Court adopted the first logic that separates a ‘structure’ from its ‘place’. Elsewhere, one of us has highlighted this as the ‘Ayodhya logic’. The Court tacitly accepted the argument that since the ‘place’ belongs to the Hindus and the ‘structure’ belongs to the Muslims, the latter could be shifted to a different location. The argument that the ‘place’ belonged to the Hindus was accepted on three grounds – that Muslims could not furnish a “specific grant of the land underlying the mosque as a foundation of legal title” (para 783), that between 1528 and 1856-1857 Muslims could not provide evidence to establish “possessory control over the disputed site” (para 786), and, that there was no evidence of Muslims “offering namaz in the mosque” during the said period (para 786). The argument that the ‘structure’ belonged to the Muslims was anyways evident. .The Supreme Court, it seems, deliberately chose to remain ignorant of the facts which remained undisputed for more than three centuries..The Supreme Court, it seems, deliberately chose to remain ignorant of the facts which remained undisputed for more than three centuries. It underscored the argument that while Hindus were dispossessed of the place (by Babri mosque), the Muslims were dispossessed from the structure (due to demolition). The logic, therefore, required that Muslims be allocated a separate land to build a mosque.In the words of the Supreme Court, “The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992.” (para 800)Interestingly, this dichotomy between ‘structure’ and ‘place’ is not followed in the instances of demolition. Taking suo motu cognizance of the bulldozer actions, the Supreme Court in In Re: Directions in the Matter of Demolition of Structures (2024) equated bulldozer actions with lawlessness and a ruthless state of affairs. While acknowledging the fact that demolitions could be based on legitimate grounds, the Court issued pan-India guidelines stating that no action should be carried out by the State without strictly adhering to the due process of law.Having said that, the Supreme Court did not pass any order to compensate the victims of such demolitions. It also did not acknowledge that the demolitions largely targeted Muslims. The largely toothless Order issued by the Court, has already seen violations, followed by strong response from the Court..In arriving at the said Order, arguably the Supreme Court was, inter alia, guided by the unitary understanding of ‘structure-place’, assuming where the land is occupied illegally, the structure is also illegal (or vice versa), and its demolition does not call for any compensation. If the Ayodhya logic defines our understanding, the “dispossession from land” should be separated from the “dispossession from structure”. Therefore, the destruction of the structure, even if standing on land illegally occupied, could have been compensated, as the existence of the ‘structure’ is separate from the ‘place’ (land) on which it stands.If, however, the Ayodhya logic does not define our understanding on the point, it should either be highlighted as wrong interpretation or an exception to the general understanding of property law. While it seems the former would most likely be unacceptable to milords, accepting the latter would be tantamount to violating the principle of secularism, for it specifically targets the Muslim identity..A Crisis of Resistance: Aftermath of the Ayodhya Judgement.Some pertinent questionsThe Supreme Court’s approach raises the question: should the classical understanding of property law, which understands the ‘structure’ and the ‘place’ as constituting a whole, be defied in instances where religious places are under discussion? Should the ‘structure/place’ dichotomy not apply in instances of demolition of urban spaces where destruction of personal property, especially homes, has the effect of destroying the civic identity of the families? In both instances, why is the Muslim identity at the centre of this fragmentation of the understanding of law? Is such reading not detrimental to the overall understanding of property law at its very base? Finally, what impact does such a reading of law have on the citizenship rights of Muslims?With a grand temple built at the ‘place’ in Ayodhya, it would be worth pondering if the ‘structure/place’ dichotomy still holds its ground in law. The petition challenging the validity of the Places of Worship Act, 1991 is pending before the Supreme Court. The arguments of the petitioner seem to be buttressed by the ‘structure/plac’e dichotomy. .Should the ‘structure/place’ dichotomy not apply in instances of demolition of urban spaces where destruction of personal property, especially homes, has the effect of destroying the civic identity of the families?.Structure/Place logic in proposed Waqf (Amendment) BillBeyond the ‘structure/place’ dichotomy lies the desire to redefine ‘ownership’ over land. In the proposed Waqf (Amendment) Bill, 2024, cleared by the Cabinet and scheduled for debate during the current Parliamentary session, the Government has made attempts to redefine the age-old principle that peaceful possession is the mark of ownership over land. Where peaceful possession over land for a substantial period is presumed to create title over it, the requirement of evidence (registration) is nothing short of inverting the logic – presuming that peaceful possession was an ‘adverse possession’ to begin with. The logic at work here is again the same – to disregard the existing structure and to make claim over the place. There have been instances where registration documents are expected to establish claim over place and to counter the presumption of illegality.Interestingly, a mere claim to ownership seems to trump the very fact of physical possession of the land itself. The centuries old principle which protects physical possession against any such claim, except the one coming from the owner, seems to lose its value. The presumption that the claim is made by the real owner of the property is, therefore, established. An extension of this argument would presume that Muslims could not have been the real owner of the land over which such waqf is established, unless established through law..The dispossession of Muslim citizenship under the CAA is again based on the logic of dispossession from land..Structure/Place logic in Citizenship LawIs the dispossession logic at play a new argument? The answer would be no. The argument goes back to the question of Muslim citizenship in India in the backdrop of the framing of the Constitution. The contested nature of Muslim citizenship allowed the State to tie the question of identity with national security in order to challenge the claim of belongingness – the securitisation of citizenship as it emerges from a combined effect of the Citizenship (Amendment) Act, 2019 and the Supreme Court’s Mohammad Salimullah (2021) judgement. The top Court in the case had observed that the ‘right not to be deported’ (non-refoulment principle in international law) attracted for the Rohingya refugees was ancillary to the ‘right to reside and settle’ in India under article 19(1)(e) of the Constitution. The Court’s Order seemingly justified post-partition anxieties that have defined Muslim citizenship in the country, albeit in an indirect fashion..Transformations in Indian citizenship: Tryst with arbitrariness.The dispossession of Muslim citizenship under the CAA is again based on the logic of dispossession from land. While one may argue that a person has stayed on this land for generations, the requirement is to demonstrate the tie with the land based on the birth certificate, mention in the electoral list or any other national identity document. This is akin to detaching the ‘structure’ (civic life of a citizen) from the ‘place’ (decades long presence in India). The requirement of the proof of birth would first establish the domicile and then only one would be guaranteed the protection of civic life. Instrumentalisation of lawWhile the existence of law is one aspect, the ability to access and engage with it is another. In legal discourse, all laws are interpreted and applied through public arguments, often before judicial and other forums. The assertion of rights and the availability of remedies for legal violations depend on three key parameters. First, the doctrinal understanding of what constitutes law at a given time. Second, the accessibility of public institutions where the legal arguments are articulated. And third, the ability to participate in public conversations on law without obstruction.All these pathways are being systematically eroded for Muslims in India, leading to a dilution of their legal and social identity. Through a combined reading of the judiciary’s interpretation of the Ayodhya dispute and Places of Worship Act, State-sponsored demolitions of Muslim homes and the CAA, our argument illustrates how this erosion is not only legal but also deeply intertwined with the broader social identity of the Muslim community.
