In one of the most important and much anticipated judgments in India’s history, the five-judge Constitution bench of the Supreme Court (SC) put an end to the more than a century old dispute that has torn the social fabric of the country. In a landmark verdict announced on November 9, the court awarded Hindus control of the disputed site.
Muslims, on the other hand, have been compensated with five acres of land at an alternative site in Ayodhya for building a mosque. In a unanimous decision over the site claimed by both Hindus and Muslims, the five-judge bench asked the government to set up a trust that will construct a temple. The verdict, it is hoped, will bring closure to a long and arcane legal wrangle that could not be resolved after several mediation efforts.
In 2010, a three-judge bench of the Allahabad High Court had ruled that the disputed 2.77 acres of Ayodhya land be divided into three equal parts. But the SC, relying largely on evidence and staying away from history, theology and travelogues, has held that the Allahabad High Court was wrong to divide the land between three main parties as the complex was a composite one.
The court said that the 2003 Archeology Survey of India’s (ASI) report can’t be dismissed as conjecture or just guesswork and junked the theory of pre-existence of an Idgah at the disputed site. The judgment noted that the ASI report merely says the mosque was not built on vacant land and there was an underlying non-Islamic structure of large dimension. However, the ASI did not touch upon how that structure went to ruins.
The court agreed with the reasoning of the Allahabad High Court that “when a structure has been constructed several hundred years ago, it is difficult to conclude with any degree of certainty whether the underlying structure on whose foundation it rests had collapsed due to natural causes or whether the structure was demolished to give way for the structure of a mosque.”
Reasoning further, the court observed that a huge structure like a temple under the mosque can’t be the basis of claiming ownership of the disputed land now. “Historical records and travelogues show that the Hindus prayed around the disputed site.
But these must be dealt with circumspection. Court must go by evidence,” the judgment said, adding further that there is no evidence of ownership of land between 13th and 16th century.
The mosque was built in 1528. A dispute arose in 1856 between local Hindus and Muslims over the manner in which the inner and outer courtyards were being used. This means that Muslims and Hindus have been praying there from time before.
Therefore, what the court leaves unaddressed is the purpose the mosque served between 1528 and 1857. The court says there is proof that Muslims worshiped there from 1857 till 1949 when they were illegally ousted “through an act which was calculated to deprive them of their place of worship”.
How did the court then decide that the disputed land, comprising the inner and outer courtyard be earmarked for the temple, while offering the Muslims only an alternative location elsewhere? The basis seems to be an unimpeded right in outer courtyard for Hindus and a contested right in the inner courtyard for Muslims which, on a balance of probabilities, won the whole site for the Hindus.
However, the court categorically asserts that “the Muslims have been wrongly deprived of a mosque which has been constructed well before 450 years ago.” It also accepts that it was a mosque throughout its lifetime and thus, by definition, would have belonged to Ayodhya’s Muslim residents.
Yet because the Muslim plaintiffs were able to provide no evidence to prove their exclusive possession, the court handed the site over to the Hindu plaintiffs.
Incidentally, as some experts have pointed out, nowhere have the Hindu plaintiffs, other than the Nirmohi Akhara, which the court ousted, been asked to demonstrate exclusive possession of the site.
The case before the SC was essentially a civil title dispute and not a matter of faith and belief. While awarding the disputed land to Hindus, the SC also said that the placing of idols inside the mosque was an “act of desecration” and the SC has to remedy this wrong.
Therefore, it ruled that in a secular nation Muslims must get a land to build a mosque. The SC also held that the demolition of the Babri mosque in 1992 was illegal and a criminal act.
It appears that while deciding the decades-old case which has been a polarising and divisive issue and has had a huge political and social impact, the court has taken into account the present day political and social reality. Therefore, given the sensitive nature of the case and its implications, the court may have also been influenced by the majority community’s belief.
According to Faizan Mustafa, a constitutional expert and vice chancellor of NALSAR University of Law, Hyderabad, the judges tried their best to have a kind of a balance but ultimately it's the mystery of the faith over rule of law, because they (judges) said that “we can't be doing anything about the Hindu belief and if they believe that Ram was born here...we have to accept it.”
Terming the verdict controversial, Mustafa says belief is good for the purpose of religion. “But can it become a basis to resolve property disputes?” he asks. It is probably for this reason that the judgment did not go down well with the Sunni Waqf Board, one of the litigants in the case, which expressed dissatisfaction with the verdict.
However, the Waqf Board’s decision not to go for a review petition is in line with their earlier stand that whatever the verdict, they will accept it.
This was however, not the case with the Hindu plaintiffs who have always stood by the argument of faith as a non-negotiable ground for building a temple at the site. It is good that for the sake of peace and harmony, the Muslims have accepted the verdict.
However, the verdict will remain a matter of debate for years to come because it raises several questions. In a secular nation which does not discriminate against any religion, have the Muslims been given justice? Or have they have been give some compensation in exchange for justice? Did violence, intimidation and years of harassment and ultimatums based on faith have a bearing on the case?
The writer is an independent Mumbai-based senior journalist.