The Barbarous Case of Babri Masjid - A Legal Analysis of the Ayodhya Verdict

A dispute with a history dating back to almost 500 + years, arching over 40 sittings in the Apex Court of India, giving rise to mayhems across almost half of India, attracting around half a million people into the tussle, claiming over 3000 humanlives, stirring up the political arena like never before, raising various legal, ethical, social and political questions,involving the sentiments of two of the biggest communities of the world, involving one of the most barbaric and nefarious conquerorsin the history of the world and also one of the most celebrated and worshipped Gods in the world, the Babri Masjid case is certainly a landmark case reflecting the amazing judicial prowess of the Supreme Court of India as well as its vulnerability, the fraternity as well as the cultural split in India, the apparent as well as hazy political arena of India and much more.

The Supreme Court of India on 9th November 2019 pronounced its long awaited verdict on the Babri Masjid case spurning down the verdict passed by its predecessor, the Allahabad High Court, and gave the matter its final shape by giving the possession of the entire 2.7 acre land to the Hindu - Ram Lalla Party along with an order to the government to form a trust within 3 months for the construction of the Ram Temple on the land. The SC also gave an alternate land in a prominent locality of Ayodhya measuring 5 acres to the Muslim community for a mosque to be built on it as restitution and dismissed the claim of NirmohiAkhada on the basis of them being barred by limitation and not being the Shebait of Ram Lalla.

The verdict was highly lauded and celebrated by the jurists, politicians, advocates and the public in general for being a verdict that puts a lid on the cheap political game and sensationalizing that had been going on for almost 7 decades, for being unanimously passed by the 5-jugdes constitutional bench headed by the then CJI RanjanGogoi and for being passed on the basis of evidence and merits of the case. The verdict, for those in its favor, is believed to have cemented the cracks between the Hindu and Muslim community and upheld India’s ‘Unity in Diversity’ and has marked the beginning of “Desh Bhakti and not Ram or Rahim Bhakti!” Notably, the judgment came out along with the opening of the Kartarpur Corridor which in itself is being considered as a stitch to the Hindu-Muslim conflict.

However, many stakeholders were disgruntled, mostly the Muslims, for obvious reasons. Largely, they had expected a better verdict in the sense that the vandalism and illegal demolition of the mosque should have been addressed more fiercely and the act of 1991 on the places of worship should have been amended to be given more teeth so that a proper sense of restitution could be felt by the Muslim community. For some, the resentment is that the very place where the mosque was built has been given to the Hindus despite clear evidence of the establishment being used as a mosque for over 4 centuries, continuous usage of it as mosque, subsequent illegal obliteration of the mosque by KarSevaks, and very weak archaeological evidence signifying that there was a Ram temple before the Mosque was built by Mir Baqi on the order of Babur, which somewhat signifies that the court took liberties with the evidence and based its decision more on the demography involved and less on the evidence thereof.

The whole verdict on the matter came out to be close to 6000 pages and in addition to that, it was not very evenly presented by the media, due to which some parts of it got over emphasized and some important parts did not come to light at all. Thus, hopefully this article will help the readers understand the judgment in a better and easier way. 

We shall sift about some important politico-legal questions that were raised (which are roughly equal to the questions that were answered) in the wake of this historic judgment and help you construct an informed opinion about this dramatic, divine and antique case. 

1. Role of Evidence in the judgment?

Notably, the constitutional bench treated this case like a writ petition and not an appeal. The bench took note of every evidence presented by the parties and addressed the same in the judgment in a very elucidative way. 
Another notable point in the judgment is that the judgment was passed in favour of the Hindu side on the basis of‘preponderance of evidence’ and not ‘proof beyond reasonable doubt’ which means that the perusal of the evidence showed that the probability of a previous Hindu establishment in the place of the Babri Masjid was more probable than not. This was so because the case was of a civil nature and not criminal where the case has to be ‘proved beyond reasonable doubt’ by a party to have the ball in its court.

Coming on to the evidence presented before the court, the Ram Lalla party majorly took support of the 3 reports of the Archaeological Survey of India which were formed after a comprehensive excavation and study of the site by a team of archaeologists consisting of prominent archaeologists like KK Muhammed. The excavations uncovered a few things that reasonably pointed towards a Hindu establishment if not specifically a temple of Lord Ram. The survey found 12 pillars supporting the mosque built in the way they were built by the Hindus in the 10th century. Terracotta idols of two humans were also found in the excavation which indicated towards them being the idols of Ram and Sita or Shiva and Parvati. The walls of the Mosque also had Lotuses carved on them which also signified more of a Hindu establishment than a Muslim one. In addition to that, the archaeologists also found a cradle-like structure near the spot that is considered to be the spot where Lord Ram was born. In addition to this, the Supreme Court also took note of the fact that many writers and travelers had mentioned in their records that the city had been celebrating the birth of Ram since a very long time before the Masjid was built. A stone slab was also found with inscriptions on it in Devnagri.

In addition to this, the court took note that the Muslims did not possess the site exclusively but shared the same with the devotees of Lord Ram who had been offering prayers at the outer compound and even in the inner courtyard, whereas, the Muslims offered prayers in the inner part of the premises. The court also observed that the Muslims offered Namaz at the Mosque only intermittently and not incessantly through time. In fact there was no evidence of the site being used by the Muslims as a mosque from 1528 to 1857. This became largely the point which shaped the judgment into favouring the Hindu side.

Another point of view was shared by a well-known yogi, mystic, a thinker and an authorSadhGuru. He pointed out that the Babri Masjid was a sign of domination and barbaric murder of millions of people by Babur, a Mongol who invaded India to conquer it, whereas, Lord Ram, a ‘maryadapurush’ or a man of ethics is a symbol of love, respect, humanity, bravery, good rule, justice and equality and thus building a Lord Temple should be given thrust over a memoir of a Babur-like person. 

However, the other side of the coin has its own weightage. The critics claim that, first of all, the SC has accepted that there was a mosque built at the site in 1528 and was used for almost 200 years (1857 to 1949) if not 400 until desecration in 1949, intermittently though. Secondly, the architectural techniques have changed through the times and the history of India has been turbulent one. Many rulers and communities came and perished and each of them introduced different styles of architecture and thus the pillars from 10th century cannot be held to be Hindu just because such pillars were frequent in Hindu establishments in the recent centuries. In addition to that, the archaeologists identified the structural formations at the site more with a Shiva temple than a Ram temple.In addition to that the Lotus patterns on the walls of the mosque do not necessarily indicate that there was a Hindu establishment at the disputed site as Lotus has been one of the frequent features in many of the architectures built by Muslims as well, for instance TajMahal.

The resenting population also raised a very prominent point that the Muslims used the Mosque as a place for offering Namaz and possessed it peacefully, whereas, the KarSevaks in 1992 illegally attacked the mosque and levelled the same with utmost savagery and thoughtlessness. Now, whatever may have been the original establishment, the act of the KarSevaks was illegal, unlawful and unconstitutional and for that the verdict should have inclinedin favourof the SuniWaqf Board. Plus, the establishment of Mosque was a definite fact whereas, the presence of Ram Mandir is just a probability. 

2. What about the verdict passed by the Allahabad High Court? 

The matter was before the Allahabad High Court for almost 8 years and the verdict was passed in 2010. The Hon’ble court passed the verdict dividing the disputed land in equal parts between the three parties to the case i.e – Ram Lalla represented by Mahant Suresh das and Ors, the Sunni Waqf Board and the NirmohiAkhada. 
The Supreme Court overruled this judgment by saying that this solution was legally unsustainable and would leave all the parties unsatisfied leaving the scope and high probability of the matter getting aired and catching fire again.

Those in favour of the verdict passed by the Supreme Court of India were of the opinion that the place of establishment was of significance only for the devotees of Lord Ram as it was considered to be his birth place, whereas, the placement of Mosque was random and if the archaeological evidence was to be considered it was built in the place of a temple, not precisely Lord Rama’s, demolished on the orders of Babur ( Which also could not be definitely proposed by the ASI and thus could not be the basis of the judgment) as a symbol of domination, cruelty and massacre. In addition to that, the Supreme Court has not only granted a random land but a land in a prominent area and that too measuring almost the double the area of the Babri Masjid (2.7 Acres).

Those in the favour of the judgment passed by the Allahabad High Court and against that of the Supreme Court are of the opinion that the verdict passed by the Allahabad High Court could have been an easier, more satisfying and more of a decision that epitomizes unity and fraternity. In addition to that, the place in itself held a religious significance and any alternate site given to the Muslims would not suffice.

3. What about the amendment in the Places of Worship Act of 1991 and those who took part in the illegal demolition of the Babri Masjid?

The Places of Worship Act of 1991 was a special act passed in 1991 to interdict the conversion and manupulation of places of worship which were built before 15th August 1947. The Babri Masjid case came before the local court in 1949 and was decided after almost 70 years in 2019. In the meantime many eminent politicians were head-on in the political game trying to pull the bowl of voters to their own side of the tray. After the Shahbano case, the lower court had given the orders for the gates of the Mosque to be opened up for the Hindus to worship, which was apparently the result of strings being pulled by the then government’s pull-man - Rajiv Gandhi (The then PM of India). 

In response to the same, many eminent personalities like Lal Krishna Advani, Uma Bharti and Atal Bihari Vajpayee tried to galvanize votes and support from the Hindu community in the name of the reclamation of the disputed land for Ram Lalla. L.K Advani organized the popularRathYatra from Somnath in Gujrat to Ayodhya for the same purpose. 

During one of the meeting of KarSevaks near the Mosque on 6th December 1992, the crowd went out of control and entered into the mosque, outnumbering the police force, and flattened the mosque within a matter of few hours. As many as 2000 people were killed in the riots that broke out all over the country. 

This act was, for obvious reasons, highly condemned and the criminal cases were booked against many politicians who took part in the same and in fact, to a very huge extent, the Babri Masjid case has gained the stature that it has today due this condemnable act of the BJP leaders and for the same reason the justice to the Muslim community had to be the priority of the court. Now, the Muslim party was right to expect the restitution with respect to this illegal act by asking the court to punish those who were a part of the event which took a historical place of worship from them, with a more severe punishment than just 3 months imprisonment as the Places of Worship Act, 1991 provides. 

The Supreme Court did not talk about this act, the persons involved or any amendment that it thought was necessary to be made to the act in the verdict which did not hit attune with the expectations of many spectators. 
Those in favor of the verdict say that there is a separate suit going on in the lower courts on the matter and thus it was not necessary for the Supreme Court to opine on the same in this verdict. Further, the parliament will make changes to the Places of Worship Act 1991 if it deems necessary to do so. In addition to that, the persons involved in the unconstitutional act of demolition of Babri Masjid were not only charged under the provisions of the Places of Worship Act but also many other provisions of the IPC which provide for quite severe punishments and penalties.

4. What happened to the claim of the third claiming party NirmohiAkhada?

Nirmohi Akhada is one of the 12 Akhadas recognized by the AkhilBhartiyaAkhadaParishad. It is a group of ascetics who are worshippers of Lord Ram. They live their lives as saints and as protectors of the followers of Ram. This group claimed Shebait rights in the Ram Janmbhoomi-Babri Masjid case and prayed for the rights of management and ownership of the disputed property, more specifically of the Chabutra adjacent to the disputed site. 

The Allahabad High Court in its verdict made the NirmohiAkahada a party to the division and granted 1/3rd of the property to the group. However, the Supreme Court held that the NirmohiAkhada had no Shebait (management rights) in the property as it is not a worshipper of the Ram Lalla. In addition to the Apex Court said that the NirmohiAkhada was barred by Limitation by 3 years. 

5. What is the legal status of the idol of Ram Lalla in the case?

Part ‘J’ of the judgment exclusively discusses about the questions relating to a juristic personality and explains the concept in detail. TheRam Lalla idol which was one of the parties in the suit as ‘Bhagwan Sri Ram Virajman’ was not contended against by the opposite party as to whether it could be considered as a juristic person (one that can hold duties and rights and can sue or be sued) or not, and thus SC did not meddle withit. However, the disputed land ‘Asthan Shri Ram JanmBhumi’ was not considered to be a juristic person or party to the suit and was rejected by the SC with the reason that“material manifestation is a pre-requisite for anything to be conferred upon with the title of a juristic personality” which can, on the other hand, be conferred upon the Ram Lalla Idol as ‘Bhagwan Sri Ram Virajman’ due to the fact that it is worshipped by the devotees with faith and belief believing it to be representing the divine lord.

6. Was the Islamic Law or Ismail Faruqqui Judgment taken into consideration by the Supreme Court?

The Muslim parties who resented the judgment demanded that the Islamic Law or Sharia should also have been taken into consideration by the SC, according to which a Mosque is the place of God and so cannot be shifted to some other place or given to someone else. In addition to that, a mosque is of great significance in the Muslim law like any other religious structure is to such religion. 

The Supreme Court did not take the Islamic law into consideration in this case as the question was a constitutional one and constitutional law would prevail over the Muslim Personal Law in any case. Moreover, in 1994 the SC ruled that Mosques are not significant in the Islamic culture and the Namaz can be offered at any place irrespective of the fact that it is a Mosque or not. The same decision was also reappraised and upheld by the SC in the case of Ismail Faruqqui in 2018. 

7. What’s Up with the All India Muslim Personal Law Board? Will and should their rejection of the land given to Waqf Board or their review petitionbe considered by the Supreme Court?

AIMPLB is an NGO which was established in 1973 for the purpose of protection of and ensuring the continuous applicability of the Muslim Personal Laws in India as many Muslims practiced the Hindu customs before 1937. The group has been active in the matters involving Muslims and their rights in the country and have also been influential in many matters. 

AIMPLB in the Ayodhya case has tried to become a party to the case through a review petition pleading that they should be allowed to plead as well being an affected party in the case, however, their claim was rejected by the Supreme Court. 

Now, the organization has taken up to the media and claimed that it speaks on behalf of the Muslim Community and that the Waqf Board should reject the 5 acre land given to it by the SC. Those in favour of the party are of the opinion that the party should be granted the right to plead in the case so that it can file a review petition which it cannot do it unless the court allows it as AIMPLB has no locus standi in this case. 

Those against the same are of the opinion that the party has a very weak claim and also should not be granted the right to file a review petition as it will just unstitch the situation and will lead to more and more turmoil and political hocus-pocus. 

8. Was ordering 5 acres land in favor of the Waqf board within the power of the Supreme Court

Yes, the Supreme Court has special powers under article 142 of the constitution of India which provides that the SC can pass such decrees or orders as it deems fit to do complete justice and that such orders shall be operative and enforceable in the whole of the territory of India. 

9. Is this actually a closure or there is a scope for more litigation on the case?

Howsoever explanatory, lengthy and beautifully carved out may the verdict given by the Apex Court be, there are few leaks out of which one can see the smoke rising again and there are more than fair chances that the Muslim institutions and opportunists will try to get this issue re-examined by the court or take advantage for their personal gain by hook or by crook. 

Although, a verdict of the SC cannot be appealed against in any court for obvious reasons yet there are provisions for a review petition that can be filed against an order of the Apex Court as well. Such re-examination falls under article 137 of the Indian Constitution, Section 114 of CPC and also under Order 47 of the CPC, apart from above the matter can be referred to a larger Bench also, if deemed fit and necessary, to deliver complete justice.

However, reviews are rarely entertained by the apex court as they are not a right given to the parties but the discretion of the court. 

Another relief may be a curative petition by the Waqf Board. The Doctrine of Curative petition was unveiled in the case of Rupa Ashok Hurra vs Ashok Hurra and Ors in 2002. A curative petition can be filed in the Supreme Court for a decision of the Apex Court to be revised in case there has been a gross injustice meted out to either of the parties due to the error in the judgment. However, the process of filing a curative petition is a tedious one and may even attract an exemplary penalty by the court if the court finds no merit in the case. 

Thus, legally and hopefully this seemsclose to a‘closure’ but still not completely it.The pressure of the population on the government and subsequently on the courts may also play a role in stirring up of the case if not any other legal remedy. It is going to be very interesting to see what happens next. What kind of effects will this verdict have on the Kashi and Mathura disputes or on the criminal case pending against the people behind the demolition of the Babri Masjid? How is it going to shape the Indian polity in the coming future? 

Being a citizen of India and aware of how diverse and dynamic this country is, I don’t think it prudent to paint an all rosy or a shady picture of the future of this case based on just the apparent competence of our judicial system from top to bottom or the infamous skills and needs of our politicians to milk out a matter until it can no longer divert the people from the real issues.So the question still lingers – MandirKahanBanega?

What do you think? What is your opinion on what else could have been the solution to this issue? Could the land be put to a better use? Transformed into a heritage site with all the religious places of worships at one site? Or could it just be turned into a school, a hospital or a protected little forest? How do you predict or expect the future to be? Also, let us know if you can think of any other question regarding the verdict?

 

Raghav Arora 
on 22 November 2019
Published in Others
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