Mohammad Naushad Khan analyses the recent statement, though not formal, made by Chief Justice of India Jagdish Singh Khehar, asking the stakeholders of Babri Masjid case to settle the dispute through negotiations, and emphasises that justice should not be driven by any ideological supremacy.
The idea and the spirit of justice are guided by the belief and hope that justice should not only be done but also be seen to have been done. Justice is primarily based on facts and goes beyond religious and philosophical leanings and certainly not driven by any ideological supremacy.
In any case, judiciary should neither be pressurised by the majoritarian mindset nor should it bend towards the feelings and aspirations of any other community, including minorities. By any yardstick, the faith of one cannot supersede another’s. Any settlement, either in or out of the court should satisfy all the stakeholders that it is done primarily based on facts and reasoning and not on faith and fiction. Decades down the line, the Babri Masjid issue has been made complicated by political posturing and religious passion. The Apex Court should not be influenced by the political clout but it should decide the dispute purely on the merit of justice. In the Babri Masjid case, justice has been already delayed but it ought not to be denied. This is where the Allahabad High Court judgment earlier failed to convince all stakeholders despite its balancing order which had something for all the parties in the dispute.
Dr. S.Q.R. Ilyas, Joint Convener, Babri Masjid Action Committee, member of the Central Advisory Council (Shoora) of Jamaat-e-Islami Hind, working committee member of All India Muslim Personal Law Board (AIMPLB) and General Secretary of All India Muslim Majlis-e-Mushawarat, in his reaction to the statement and the offer made by the Chief Justice of India, told Radiance, “Look Subramanian Swamy is basically not a party in this case rather he is just an intervener. The day, when he went to the Supreme Court there was not any case and therefore none of the stakeholders was called there. Altogether there are 14 parties as litigants in the case.”
On the Chief Justice of India Jagdish Singh Khehar’s statement, he said, the suggestion made by the Chief Justice of India was informal. He said it is a very sensitive and complicated matter and therefore it would be better if all concerned parties try to find out a solution through dialogue. He also said that if necessary, he would also be an arbitrator in that.
Referring to past initiative for any out-of-the-court settlement, Dr. Ilyas said Muslim Personal Law Board and Babri Masjid Committee had been involved in the dialogue process many times where people of the stature of prime minister were also involved. The dialogue process began during the regimes of Prime Ministers Chandra Shekhar, Narasimha Rao, Atal Behari Vajpayee and VP Singh. But all these efforts failed and nothing concrete came out. The reason was that the other party always started the dialogue by saying it is a mandir and idol is there; you can build a masjid at any other place. So if the dialogue is based on this very point then it will never be successful.
While reminding the historical journey behind the dispute, he claimed, in 1528 when the masjid was built, it was an undisputed land. From 1528 to 1949 there was no dispute or any claim over the mosque. There was a chabootra (platform) outside the Babri Masjid where a Ram Lalla idol was placed surreptitiously and the Hindus started worshipping Ram Lalla there. The point to be noted here is that in 1885 Nirmohi Akhara filed an application demanding a shed on the top of the idol to protect it from rain and other seasonal vagaries. Notably, Jai Kisan, who himself was a pandit, rejected the application by saying that just adjacent to that there is Babri Masjid where five-time namaz is offered and if bhajan kirtan starts then the namazis in the mosque will be disturbed. In 1885 there was no talk of any such disputes.
On 22 December 1949 some anti-social elements placed the idol inside the mosque during the night. And on the very next day, the magistrate locked the mosque, claiming it to have become controversial. Till 1949 there was neither any controversy nor any dispute at the Babri Masjid site. And nobody even talked or raised the issue that Lord Ram was born here itself and this is the Ramjanmabhoomi. There was a mosque where namaz was offered until 22 December 1949 and the Ishaa namaz was held on that day. In that mosque, the idol was placed then locked, again unlocked and darshan began and on 6 December it was finally demolished and a makeshift temple was erected forcefully. So the aggrieved party is the Muslims in this case.
While reacting to the recent offer made by Subramanian Swamy, he said, on the one hand, Subramanian Swamy is talking for an out of the court settlement and speedy trial and on the other hand saying that Muslims can build a mosque on the other side of the Saryu river. If not then in 2018 we will come up with a law and will build a mandir after that. If such is the motive, what is the use of talks and what it would lead up to? As far as All India Muslim Personal Law board is concerned, it has always maintained that either it should be solved through court or through dialogue. But in both circumstances, it should be based on facts and not merely on faith or belief.
On the role of the BJP, he said, BJP and its affiliates have always maintained that mandir will be built there. So they are in power both at the centre and state, so they may try pressure tactics. The matter is in the court and I am of the opinion that if the court will decide on the basis of merit then we will certainly get justice. Subramanian Swamy went to the court for speedy hearing but the court has reminded its limitation regarding manpower and resources and therefore day to day hearing may not be possible. It will take its own time. If you want to find out any solution then try to find out through talks.
Dr. Ilyas also said, BJP is in a hurry to build Ram Mandir in its tenure and that is why Subramanian Swamy wants a speedy and day-to-day hearing. We also want it but it should be based on facts and evidence. If the BJP which is in power tries to do it either by hook or by crook, such a motive will not be applicable in a democracy and nobody is above law and constitution. No matter, which political party is in power and how big the mandate is, it has to abide by the Constitution of the country.
Another viewpoint was put forward by Dr Tasleem Rahmani, president Muslim Political Council. Dr Rahmani, while talking to Radiance, said the statement of CJI Jagdish Singh Khehar should be seen in many perspectives and Muslim stalwarts fighting Babri Masjid case shall take it seriously. There is already the verdict of Lucknow Bench of Allahabad High Court that admitted the claim of both parties and divided in three parts: one given to mosque meaning thereby the claim of Muslims has been admitted by the court but Muslims didn’t accept this share then what’s the CJI is suggesting?
Rahmani further said: Justice Khehar is known as a balanced man. It must be noted that his term is going to end on 17 August 2017 just after 5 months; after him Justice Gogoi will be the next CJI for a term of approximately three years. Obviously, this case is not going to be settled within 5 months even if it is heard on a day to day basis. Then its final verdict will come out in the era of Justice Gogoi.
He further said, let the court decide the case once for all and let the world see whether Indian secular Democratic court decides it on the basis of some religious belief or pronounces as per the law of the land.
On the entire political development and the fate of the judiciary, Constitutional expert Fali S. Nariman in his article, “Lest we crawl”, in the Indian Express on 25 March has written something which is certainly an eye-opener and the way forward under every circumstance and would remain relevant for decades to come. ‘The lesson, then, for us lawyers is loud and clear (like the UP election results). As Learned Hand, one of America’s greatest judges (who never sat on its Supreme Court) once said, “Do not rely too much on the courts to save your liberties – instead rely on yourselves.” In the end, not political parties but only civil society acting in a spirit of constitutionalism can sustain and preserve our non-sectarian constitution.’