Introduction
India in the late 1980s was recovering from horrors of
emergency, redeeming its social-political endeavours and constitutional
governance. It was a phase where even the courts in India took “activism” as
only virtues to brush off the blot of credibility and inability to secure
rights of Individual. This was an era of coalition politics where amidst
political in-stability India was moving away from nationalisation to
liberalization when the opening of the market became quintessential for its survival.
It was poised on the path of development when an unprecedented, unfortunate event in Ajodhya, Uttar Pradesh took place which changed the course of
policies, way of politics, elections and affected generations in India. This
event of desecration of Babri Masjid on 6th December 1992 changed
fortunes of India from liberalization to Politics of “Mandal-Kamandal” which
became the only narrative of big political parties thriving on which some went
on govern India.
It was on 8th November 2019 when finally
the Constitution Bench of ex CJI Ranjan Gogoi, J SA Bobde, J D Y Chandrachud, J
Ashok Bhushan and J Abdul Nazeer in M.
Siddiqui v. Mahant Suresh Das[1]
laid the long-standing title dispute
which was religious and “political fodder” to rest by unanimously directing
Construction of Temple and Allocating a separate 5 Acre land to Sunni Waqf
Board for construction of the mosque, invoking Article 142 of the constitution.[2] In
allowing to temple to come up the Supreme Court has chosen the path of “peace” for
communal harmony and Justice but the bitter truth is that legal principles in
here seems to be compromised and the decision appears to be on “faith”. While
the decision undoubtedly puts a full stop to the “specific” issue urbanely it
is yet dubious that this may impact communal harmony. The Judgement therefore
like every other is subject to critique on spokes of law and has received a
backlash over choosing faith over the law as soon as it was read out[3].
In its 929 run page, no conclusive and the compelling argument were put out for the justification of the decision and
while it started with “Court does not decide title on the basis of faith or
belief but on evidence” the judgement itself does not appreciate the “rule of
evidence”. This judgement, therefore, looks more like a Supreme Court’s Balancing
act which is jeopardized and compromised.
It is pertinent to highlight the object and lay the
course of this article at this stage.While we try to dwell into the legality of
the Judgement on settled principles of law, the endeavour is not to try finding
answers to controversial questions pertaining to the existence of structure “historically”
or on religious curves thus not enquiring into faith or belief and try to
understand the inconsistency in
appreciation of evidence and the conclusion.
The Build-up
This case is an example of ‘changing status quo’ and
the question for the judges was to determine the dispute on land where the structure already exists. Historically there are questions on its inception but
the court in its observation accepts “It was a mosque which existed for over
450 years” which is well before the independence when we did not have a
instrument or document to self-govern.
However, “On 15th
August 1947, India as a nation realised the vision of self-determination and on
26th January 1950 we gave ourselves the Constitution of India as an
unwavering commitment to the values which define our society”
What laid the foundation to this dispute and forms as the important incident is sine qua non for the understanding of the complex issue?
It was on midnight of 22-23 December 1949 when Hindu Idols were surreptitiously
placed inside Babri Masjid by 50-60 persons and an FIR under section 147, 295,
448 of Indian Penal Code was lodged. This incident was followed by a disruption
in offering prayer in the structure thereafter. The court in paragraph 798
observes that, “The ouster of the Muslim
on that occasion was not through any lawful authority but through an act which
was calculated to deprive them of their place of worship.
This incident and observation become crucial because
this was not only against the law but also it deprived the Muslims of a mosque
which had been constructed well over 450 years ago. This became a pertinent
point for determination on “possession” which we shall see later.
Secularism and Place of Worship Act 1991
India homes the word “secular” in the preamble and the
observation made by the judges in this judgement also affirms to the “Secularism
as Constitutional Principle”. In Paragraph 83 of the Judgement the courts
accepts the observation of J BP
Sanjeeva Reddy in S R Bommai v. Union of
India[4]
“How are the constitutional promises of social justice, liberty of
belief, faith or worship and equality of status and of opportunity to be
attained unless the State eschews the religion, faith or belief of a person
from its consideration altogether while dealing with him, his rights, his
duties and his entitlements? Secularism is thus more than a passive attitude of
religious tolerance. It is a positive concept of equal treatment of all
religions. This attitude is described by some as one of neutrality towards
religion or as one of benevolent neutrality. This may be a concept evolved by
western liberal thought or it may be, as some say, an abiding faith with the
Indian people at all points of time. That is not material. What is material is
that it is a constitutional goal and a basic feature of the Constitution as
affirmed in Kesavananda Bharti [Kesavananda Bharti v. State of Kerala, (1973) 4
SCC 225: 1973 Supp SCR 1] and Indira N. Gandhi v. Raj Narain [1975 Supp SCC 1:
(1976) 2 SCR 347]. Any step inconsistent with this constitutional policy is, in
plain words, unconstitutional”
Secularism, therefore, is as quintessential to the
Indian constitutions as any basic principle as it empowers and underlines the essence of inclusiveness of society, the “Idea of India”. To avoid any such
coerced conversion of any existing place of worship, the government in 1991
passed “Place of worship Act”. This was an effort to, in future, by mandating
that the character of a place of worship of shall not be altered and it seeks
to “impose a positive obligation to maintain the religious character of every
place of worship as it existed on 15th August 1947. The idea of The act is to strengthen the secular principles of the Constitution, however, “The
disputed Babri Masjid” was kept out of the scope of the Act which raises doubts
on the intent of the act and the political will.
The arguments in the case were manifolds and here we
try to highlight the discrepancy in Courts Observation, a departure from settled
principles of law and in placing a particular faith at a higher pedestal.
The ASI Report
The Archaeological Survey of India was tasked to submit
its report on the structure beneath the Masjid and determine the title. However, there was no evidence available on (i) the cause of the destruction of the
underlying structure and (ii) whether the pre-existing structure was demolished
for the construction of the mosque. It observed that there was a non-Islamic structure
beneath but did not admit on the structure being a Temple. Therefore the finding of
title could not be based in law on archaeological findings which have been
arrived by ASI. (Refer to Page 907) In simplified words, the court could not
find the ASI Report conclusive for determination on what structure was lying
beneath the ‘tangible’ and ‘visible’ Babri Masjid.
The question of Restitution
The Muslims were dispossessed upon the desecration of
the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December
1992. There was no abandonment of the mosque by the Muslims. The Court in
Paragraph 801 agrees that the Destruction of The Mosque in 1992 was unlawful
and hence it is necessary to provide “restitution” to the community. In this
furtherance, it invoked Article 142 to give 5 Acre of lands. It may look reasonable
but legally it is nothing close to the accepted and used definition of
restitution. Restitution in its classical sense “restoring its original sense”
as observed by many jurists over the years and not “compensate” the victim.
Here the court departed from its true meaning of “Restitution” in invoking article
142 to allow 5 Acres of land to Waqf Board and defeats the settled legal
principles and has erred in the jurisprudential interpretation as the status quo was not actually 'restituted'
The doctrine of Adverse Possession
Often said as 9/10th of ownership, Possession
as per Salmond is “most basic relation
between men and things. The possession of a material object can be said to be
continuing exercise of a claim to the exclusive use of such object” To
prove possession of Physical control (Corpus Possessions) and Intention (Animus
Possesidendi) is imperative. In this case, there was a plea of “Adverse Possession”
. To make a successful claim of Adverse possession, the person making such a claim shall establish both, possession which is peaceful, open and continuous and possession which meets the
requirement of being nec vi nec and nec
pecario.
In paragraph 748 the court rejects the plea of adverse
possession of the Waqf board because it could not adduce evidence of the land
belonging to it exclusively and continuous possession beginning from the time the mosque was built. It conveniently ignored the reason for breakage of “continuity”
which was desecration and conversion of the place of worship, which is a separate
observation the court observed as illegal.
Preponderance of probability
To a very long time in the text of judgement it
appears none of the party has made a conclusive claim and the decision would
be on “better evidence” until it invokes “Preponderance of probability”. POP is
a well-accepted doctrine which endeavours to balance the evidence and weigh it
accordingly, it accepted that there is clear evidence to worship by the
Hindus in the outer courtyard continued unimpeded in spite of the setting up of
a grill brick wall in 1857. It is also notable that the place of worship was
shared by both parties but two instances; first setting up idols in 1949 and
destroying the dome in 1992 made the other party devoid of the place of worship.
When a structure is physically standing, Generally it should be the onus of the party
contesting the ownership to prove its claim. Here the court with these words “The
Muslim has offered no evidence to indicate that they were in exclusive possession
of the inner structure prior to 1857 till the date of construction” ruled in the favour
of the temple by not taking the above two instance, co-existence post-1857 into
account and reversing the onus
Conclusion
The idea here is to understand the legality of the
judgement and place it contextually with constitutional principles and rule of
evidence. It, on the one hand, denied Juristic Personality to Ram Janambhoomi,
Barred the claim of Nirmohi Akhara, Accepted that the Muslim by an act of
destruction are devoid of the place of worship, Rejected ASI Report 2003 yet
shifted the onus to the Waqf to claim its ownership. The Supreme court may
have done an act of balance to put this dispute to the grave for larger good but it
is highly problematic to place faith over others by it and it may mark an end to
the long-standing dispute however legally it would not go as very well-reasoned the judgement of SC and should not be referred to as "good precedent" rather shall be
left in isolation as an extraordinary judgment in view to streamline the communal
tension in the country.
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