New Delhi: Does allowing the Nirmohi Akhara as 'shebait' (caretaker of deity) at the disputed side in Ayodhya means the Muslim side accepts that part of the Babri mosque was a temple, the Supreme Court asked on Wednesday after Muslim parties offered to concede the right to the Hindu body.
On the 19th day of the hearing, a five-judge Constitution bench, headed by Chief Justice Ranjan Gogoi, dedicated a majority of the hearing to debating the plea by Muslim parties, represented by senior advocate Rajeev Dhavan, conceding the rights. The Akhara claims to be the shebait of Lord Ram in the Ayodhya title dispute, to manage the deity's daily affairs.
At the beginning of the hearing, Justice Ashok Bhushan asked Dhavan, "When you accept shebait rights, then you accept that part of the mosque was temple, otherwise what is shebait there (at the disputed site) for?"
The counsel replied it depends on which part of the site. He submitted that it was decided the shebait has a right to pray, and the prayer was only taking place at the Ram Chabutra and Sita ki Rasoi in the outer courtyard.
Dhavan stressed that being the shebait does not entitle the Akhara to the possession or the title of the property, and that its role is limited to management and charge of the temple, as they have been joint users of the property with Muslims.
The court the said that if Muslim parties accept the shebaitship of the Akhara, then it leads to presence of the idol, which is the deity, but Dhavan reiterated that the Hindu group are entitled to management rights.
At this, Justice S.A. Bobde, one of the judges on the bench, said they (the Akhara) say the management rights of a temple, but Dhavan contended that it is the outer courtyard where the prayers by Hindus were taking place, and no prayer was offered by them inside the inner courtyard.
Justice D.Y. Chanderchud also intervened, saying that shebait rights are in relation to idol of a deity, and when the Muslims concede that the Akhara has this right, were they admitting there were idols in a part of the outer courtyard and thereby that part is not a mosque or cannot be a mosque?
In response, Dhavan contended that there "a reality which exists in India where temple and mosques apparently exist in compromised space", and referred to it as the contemporary aspect of co-existence of different religions.
He also added that deity has limited juridical rights, and shebait has a right to pray, but the Hindu body was never given title. "If Hindus were to go to the railing (which restricted the entry in the inner courtyard) and pray, does that give them title to the property?" he asked the court, adding that these are hard realities.
The court queried whether he was referring to the identity of the mosque in the Indian context or the Gulf context, and how can they (mosque and temple) coexist, and Sufism is more predominant in India. To this, Dhavan replied that which law would they apply, and would Quranic law apply in modern circumstances?
Justice Chandrachud said that at a place involving coexistence, Muslim parties cannot claim exclusive rights. Dhavan said that title is central to the issue, and they may coexist.
"Some people come and say we have been praying here. I say pray," he said. When the court noted that the Akhara, in their suit, claimed the entire mosque area including the inner and the outer courtyard, Dhavan said that it was only given rights to pray and had no title, and their pleading is about the management and charge.
Dhavan also argued on the form of manifestation of god cannot be equated with the general claim to title. "Deity is an owner through fiction and it is not the owner in primary sense. Ownership is not rested in the idols," he submitted.
At this, the court cited the Hindu parties' point that there cannot be co-existence, and one party has to go.
In a written response to a submission made by Akhara, Dhavan said that till 1855, Hindus and Muslims alike used to worship in the mosque/temple, citing the Gazetteers quoted by the Hindu body.
"In British rule, a railing had been put up to prevent disputes. It is within this railing that the mosque exists and that is where the Muslims pray. Whereas the Hindus pray outside the fence where they have raised a platform," he claimed.
The Muslim parties claim that the Ram Chabutra in the outer courtyard was the birth place of Lord Ram and in justification, they cite Jesuit missionary Joseph Tiefenthaler, who mentions a 'bedi' (cradle) where "Beshan (Vishnu)" was born in the form of Ram, and a witness in the case also states that Ram Chabutara was also called 'bedi'. This shows that the Hindu belief was that Lord Ram was born on Chabutara, they said.
"Since 1934, regular Friday prayers have been taking place in the mosque and this has been admitted even by the Nirmohi Akhara. In view of the foregoing it is clear that there was no temple at the disputed site and that the disputed structure was a mosque where continuous namaz was taking place," said Dhavan.
According to the Gazetteer cited by Muslim parties, the mosque has two inscriptions, one on the outside and other on the pulpit, both in Persian and bearing the date 935 Hijri, and there is no doubt on the authencity of the inscriptions.
They also claim through evidence that it is apparent that the Nirmohi Akhara has been acting as shebait, it was acting as a shebait only with respect to the Ram Chabutara. The arguments will continue on Thursday.