A five-judge bench of the Supreme Court unanimously gave a court decision favouring the “Hindu” parties and compensating the “Muslim” parties in a long-drawn battle over the Babri-Masjid land on 9th November, 2019. The court had clearly stated that it would only be dealing with the issue as a civil title dispute and not delve into any other aspect of the issue. The verdict which finally settled one of the most controversial and disturbing issues has been largely celebrated and welcomed, with most applauding the apex court for giving “something” to both the parties and burying the issue to the ground so that Indians could finally move past the vindictive politics of Babri Masjid-Ram Janmabhoomi conflict in Ayodhya. Despite the largely positive acceptance of the verdict, there has been a section of lawyers and scholars who found the judgement to be legally and logically unsound and some of them have even filed review petitions in the Supreme Court. In this article, I aim to address some of the points that have been raised against the verdict and present a case against the judgement.
In its final verdict, the court gave the Hindu parties exclusive ownership of the disputed land and compensated the loss of the Muslim parties by directing the state to allot them a five-acre prominent land for building a mosque.
On the face of it the judgement seems unconvincing, the court acknowledged that Babri Masjid did exist on the land and was demolished illegally in 1992 and yet it ends up rewarding the participants of the illegal destruction, the ‘Hindu’ parties. Thus in a way, rights the wrong done by thousands of ‘kar sevaks’ as it vindicates their stand that the land indeed belongs to Ramlalla and his Hindu devotees. Even though the court has time and again through its judgements reiterated the doctrine, that no person should reap the benefits of its illegal acts.
Various historians including professor Romila Thapar has documented that the belief that Ram was born in Ayodhya is not ‘without a doubt’, as some sects and books within the larger Hindu community have different theories over the birth of Ram, moreover there is no documented proof or corroborative evidence from which it can be adduced that there was a Ram temple at the exact same place as the Babri Masjid or that Ram was born there. The court relies on the faith of a religious community to come to the conclusion that Ram was born in Ayodhya over the historical fact and evidence of the existence of the mosque. While the Hindus were asked to present evidence of their faith, the Muslim parties were expected to prove the “practice” of their faith at the place of worship.
The court reached the conclusion of the title dispute by weighing the evidence/proof adduced by the parties showing their worship on the disputed land over centuries. But, it unfairly places a higher value to one side over the other by saying that the Hindus had been able to prove the possession of land and worshipping in the outer courtyard since 1857 and in the inner courtyard before 1857, whereas the Muslim parties have failed to adduce any evidence to prove their possession of land for offering prayers in the inner structure between 1528 and 1857. This seems problematic as it was well established before the court that Babur, a devout Muslim had built the mosque in 1528. The court also accepted that the mosque has existed for well over 450 years, so ‘the possibility of the Babri Masjid having had no Muslims to pray in it during Mughal times is a simple piece of Judicial fancy’ as stated by historian Irfan Habib. It is to be noted that neither parties were able to prove exclusive possession or ownership of the land and yet the court in its verdict gifts one party the exclusive access to the land for worship and ownership.
The court also erroneously used the several instances of the attempted desecration of the place of worship of Muslims as evidence of Hindu worship and ownership of the inner courtyard. This claim was backed up by the fact that in March 1861, Mohd Asgar and Rajjab Ali joined in complaining against the erection of a chabutra without permission near Babri Masjid, and other such instances where the Hindu worshippers violated the sanctity of the Muslim place of worship. The Court in its final conclusion, identifies the acts of December, 1949, as the desecration of the mosque and holds that it was in violation of the Muslim’s rights to worship in the mosque. However, the claim made indicates that the acts of desecration of the mosque was seen as a righteous assertion of claim by the Hindu parties over the mosque area of worship and the court fails to see it as the co-existence of dual worship or the violation of access to worship to the Muslim parties
The court should not compare the practice and expression of one faith with another faith as they can differ, especially not when deciding over a title dispute. The way in which the court proceeded while deciding on the ‘title dispute’ becomes problematic as its language and tenor suggests as if it is a battle between the two communities, it time and again refers to the two parties as the “Hindus” and “Muslims” conveniently ignoring that not all members of the said communities hold the same view or demands as the parties to the suit. The court also goes ahead and directs the government to build a temple and appoint a trust where ‘Nirmohi Akhara’ is given appropriate representation, for a court in a secular country to demand construction of a temple and inclusion of a religious denomination in a trust goes against our constitutional principles. The court was called to settle a civil title dispute not to not settle a religious one.