The Muslim community and all justice-loving people of the world were highly disturbed with the final per curiam judgment delivered by the Supreme Court of India on the Babri Masjid title suit in November 2019. The entire legal process followed by the Muslim leadership and respected by the Indian Muslim community in India for their claim over the Babri Masjid undoubtedly strengthened the rule of law in the country. Muslims honoured the judgment regardless of its outcome, and there was no rejection or agitation against the judgment. Now, nearly five years later, former Supreme Court Judge Justice Rohinton Fali Nariman, whilst delivering the first Justice A.M. Ahmadi Memorial Lecture on ‘Secularism and the Indian Constitution’ has vindicated the Muslim position over the Babri Masjid demolition and sparked fresh debate on the issue.
Reminiscing the Babri Masjid title suit
Justice Rohinton Fali Nariman, a distinguished jurist and scholar, holds a law degree from Campus Law Centre (CLC), followed by an LL.M from the prestigious Harvard Law School. He was a judge of the Supreme Court of India from July 2014 until August 2021. During his tenure, he authored 360 landmark rulings in constitutional, commercial, and criminal law. His admirers call him “India’s Chief Justice who wasn’t”.
Addressing an august gathering of eminent intellectuals and judges at the Ahmadi Foundation, Justice Rohinton Nariman offered a profound exploration of India’s secular framework, its historical underpinnings, and the judiciary’s role in upholding constitutional values. He delved into the historical interplay between secularism and religion in India, emphasising the principle of equality before the law and the need for state neutrality in religious matters.
Justice Nariman critically analysed the Supreme Court’s judgment on the Ayodhya title suit, highlighting the contentious reasoning employed in reconciling historical injustices with present-day legal adjudication. He pointed out contradictions in the judgment, such as acknowledging the desecration and illegal demolition of the Babri Masjid while awarding the disputed land to the Hindu side, which, he argued, undermined secular principles and the rule of law. His remarks hold grave importance as it substantiates the Muslim position regarding the judgement.
A travesty of justice
On how secularism lost badly in the Ayodhya judgment, Justice Nariman lamented, “One would have thought they will rebuild the mosque. But it was we will give them some land to build a mosque on their own. In my humble opinion, it was a great travesty of justice that secularism was not given its due at all by these judgments.”
On the court’s findings regarding possession, Nariman said, “Despite the finding that Muslims were praying from 1857 to 1949, the Court said they cannot say they were in exclusive possession and this side was disputed. Court said it was disputed in the sense that egregious attempts were made to dislodge them contrary to rule of law, which is the finding of the court. Three times it happened. It happened in 1857, 1934, and 1940. They go on to say that therefore, we cannot say that this side is undisputed. Whatever this means. Since this side is now undisputed, we cannot say they have exclusive possession of the inner side. Therefore, this is one composite whole and we now jump to the conclusion that the composite whole now belongs to Hindus.”
On the historical context of Babri Masjid and prayer
Justice Nariman dwelt extensively on the history of Babri Masjid saying, “The mosque itself was built in 1528. Then, the mosque continues as a mosque until, there was trouble in 1853. This is the first time there is trouble. After there is trouble, just as the Crown is due to take over in 1858 from the East India Company, a wall is built by the British between the inner and outer courtyard. Inner courtyard was the precincts of the mosque and the outer courtyard was just outside the precincts. After that British wall, prayer was conducted by both sides. So, outer courtyard, the prayers were conducted by Hindus and inner courtyard by Muslims. So, it’s a recorded fact that prayers were conducted on both sides right from 1857 until 1949. In 1949, 50-60 people stormed the mosque and put idols as a result of which, all Muslim prayers ceased.”
On the Babri demolition conspiracy case (on those accused of demolishing the masjid), he regretted the fact that “it took him (the judge) 3.5 years to go to judgment and you know what he did – acquitted everybody. And after acquitting everybody, he retired and was made UpaLokayukta in the State of Uttar Pradesh.”
Importance of the Places of Worship Act
Justice Nariman also discussed the Places of Worship Act, 1991, as a critical legislative measure to preserve the status quo of all religious places as of August 15, 1947. He underscored the dangers of reopening historical grievances to shape the future, invoking the Act as a safeguard against the politicization of religion and the erosion of secularism.
He pointed out, “We find today, like hydra-heads popping up all over the country, there is suit after suit filed all over the place, not only concerning mosques, but also dargahs. And according to me, the only way of countering this – because all this can lead to communal tension and disharmony, contrary to what is envisaged both in our Constitution and the Places of Worship Act. The only way to scotch all this and cauterise all these hydra-heads is by applying these five pages in the (Babri) judgment (which upheld the Places of Worship Act) and having it read out before each District Court and High Court because these five pages are a declaration of law by the Supreme Court which is binding on them. Once it is done, it is clear that the Places of Worship Act will take its due course… If the Act were to be applied as stated in this judgment itself, it will easily cauterise all these hydra-heads which are popping up one after the other.”
Justice Rohinton Nariman had the courage to call a spade a spade. Hope the judiciary and those in governance have the courage and integrity to preserve the places of worship of religious minorities in India. It is a litmus test for India’s democracy. One that may well decide its place in history.