MUSLIMS TO KNOCK DOORS OF THE HIGHEST PALLADIUM OF JUSTICE

While bowing our head in reverence to Judiciary, which has saved the honour of plural polity many a time in Independent India, we beg to differ with the shocking verdict of the Lucknow bench of the Allahabad High Court, delivered on September 30.

Written by

Dr. S. Ausaf Saied Vasfi

Published on

August 16, 2022

While bowing our head in reverence to Judiciary, which has saved the honour of plural polity many a time in Independent India, we beg to differ with the shocking verdict of the Lucknow bench of the Allahabad High Court, delivered on September 30.

It is an insult not only to Muslim intelligence but to the intelligence of several, fair-minded legal experts, archaeologists and historians. The stunning verdict goes to justify what the Saffron forces did during their divisive journey from Somnath to Ayodhya and what they ultimately did on December 6, 1992.

Legal Experts 

This is panchayati justice which takes away the legal rights of Muslims and converts the moral sentimental entitlements of Hindus into legal rights, so reacted the Senior Advocate Mr. Rajeev Dhawan who also termed the verdict as “astonishing” and said “it is essentially and effectively in favour of the Hindu groups. There is an act of generosity that the Muslim community has been included. Speaking at length, Mr. Dhavan said: The destruction of the Babri Masjid on December 6, 1992 had taken place on a Muslim site, and this fact could not be disputed and rendered invisible by pretending that Muslims were not entitled to the site in any way. If this panchayati solution is to be endured, the degree of Muslim entitlement should have been left intact so that the site belonged to them, and added: destruction of the Masjid was akin to the demolition of the Buddha statues at Bamiyan in Afghanistan and people would say that India’s secular justice was majoritarian in nature, without lending dignity to India’s minority.

Endorsing Mr. Dhavan’s views, another Senior Advocate Mr. P.P. Rao, said: “It is difficult to appreciate how the property can be divided by the court while dismissing the suits. This is nothing but a panchayati type of justice. If the court accepts that the Waqf Board is entitled to one-third of the land, it can’t dismiss the suit. If the court dismisses the suits, it can’t give only a portion of the land. The court has gone beyond the prayers in the suits. When no one had asked for division of the land, how can the court divide the land into three portions? There are prima facie grounds for the parties to go for appeal to the Supreme Court as all of them are aggrieved over the division of the property.”

Supreme Court lawyer-advocate Mr. Prashant Bhushan said: from a legal point of view, the verdict was an absurd judgment. “Because title to any land or a property is lost after 30 years in adverse possession and hence even if a there was a temple 400 years ago, that title was lost way back.” The fact that it was the birth place of Hindu god,  lord Ram, is no way can be a basis to decide the ownership of the title, Mr. Bushan said. Nor does a particular religion or belief in particular faith help decide a title suit, he added.

Equally disquieting is the fact, as reiterated by Mr. Zafaryab Jilani: The verdict is “against the settled principles of law”.

Key Point

Before attempting an analysis of the too lengthy judgment, let us note its key points:

  • The bench said the entire disputed land should be divided into three equal parts, each to be given to Sunni Waqf Board, Nirmohi Akhara and the parties representing ‘Ram Lalla Virajman.’ T
  • The majority verdict held that the area covered by the central dome of the three-domed structure where the idol of lord Rama is situated belongs to Hindus
  • Nirmohi Akhara to be allotted share that includes the areas of Ram Chabutara and Sita Rasoi.
  • Mr. Justice Sharma ruled that the disputed site is the birth place of lord Ram and that the disputed building constructed by Mughal emperor Babur was built against the tenets of Islam.

Important Question

Instead of going into the argument of the learned judges, we feel prudent to ask, as also taken exception by legal wizards: Had their lordships been asked to stipulate which and how much land will be given to which party? Have the learned judges not gone beyond their brief? Was the dispute about the title or quantum of area of the land to be distributed among the disputants?

Two) Under what logic or rationale the spot where the idol of lord Ram had been surreptitiously put, has been given to the Hindu brethren?

The court has declared that a particular spot is where a divine or semi-divine person was born and where a new temple is to be built to commemorate the birth. This is in response to an appeal by Hindu faith and belief. Given the absence of evidence in support of the claim, such a verdict is not what one expects from a court of law. Hindus deeply revere Rama as a deity but can this support a legal decision on claims to a birth-place, possession of land and the deliberate destruction of a major historical monument to assist in acquiring the land?

The verdict has created a precedent in the court of law that land can be claimed by declaring it to be birthplace of a divine or semi-divine being worshipped by a group that defines itself as a community. There will now be many such janmasthans wherever appropriate property can be found or a required dispute manufactured. Since the deliberate destruction of historical monuments has not been condemned what is to stop people from continuing to destroy others? The legislation of 1993 against changing the status of places of worship has been, as we have seen in recent years, quite ineffective.

Three) What Mr. Justice Dharam Veer Sharma has said is not based upon facts. He said: “the disputed structure was constructed on the site of the old structure after demolition. The Archaeological Survey of India has proved that it was a massive Hindu structure.”

Mr. Justice Sharma unfortunately ignores concrete historical evidence, so feel historians, like Mr. Irfan Habib, Mr. D.N. Jha and Mrs Supriya Verma. To quote press report by Priseilla Jebaraj:

“It’s not a logical judgement with so many parts going 2-1. One does not accept the logicality of the judgment” said Irfan Habib, a noted historian and a former Chairman of the Indian Council of Historical Research, who earlier taught at Aligarh Muslim University. He noted that the verdict seemed to legitimise the events of 1949, when an idol was placed inside the mosque, by constant references. On the other hand, by minimising any mentions of the demolition of the Babri Masjid in 1992, the court seemed to be disregarding it. He also expressed surprise that two judges questioned the date of construction of the Babri Masjid, as well as the involvement of Emperor Babar or his commander Mir Baqi, since there had been clear inscriptions to this effect before the demolition. To quote him “Things that are totally clear historically, the court has tried to muddy.”

Faith vs. History

“The historical evidence has not been taken into account,” said D.N. Jha, History professor at the Delhi University. Noting the judgement’s mention of the “faith and belief of Hindus” in reference to the history of the disputed structure, Dr. Jha asked why the court had requested an excavation of the site. “If it is a case of ‘belief’, then it becomes an issue of theology, not archaeology. Should the judiciary be deciding cases on the basis of theology is a question that need to be asked,” he said.

Professional archaeologists also noted that the judges did not seem to rely heavily on the Archaeological Survey of India’s court-directed excavation of the site in 2003, at least in the summaries of their verdict made available after the judgement.

ASI Ignored

“Somewhere, there is doubt about the credibility of that report,” said Supriya Verma of the Jawaharlal Nehru University, who acted as an Observer during the ASI excavation. She noted that neither Justice Sudhir Agarwal nor Justice Dharam Veer Sharma even referenced the ASI report to support their conclusion on the existence of a temple on the site before the mosque was built.

“It is almost as though they themselves were not convinced by the evidence. They are clearly conceding that there was no archaeological evidence of a temple or of its demolition. It is a judgement of theology,” she said.

Another observer of the ASI excavation, Ms. Jaya Menon of the Aligarh Muslim University, noted that the ASI report itself did not provide any evidence of a demolition, and only asserted the existence of temple in its conclusion. “So I don’t know on what basis they made their judgments.” She said. The ASI report had been criticised by many archaeologists for ignoring evidence such as animal bones, which would not have been found in a temple for Ram and the existence of glazed pottery and graves which indicated Muslim residents.

Disturbing Dimension

Yet another disturbing dimension of the judgment that seeks to give credence and precedence to “faith” or “astha” over law and reason rather commonsense. In the words of Mr. Siddhartha Varderaja (The Hindu, October 1):

“… the Hindu plaintiffs in the case have a claim to the disputed site because “as per (the) faith and belief of the Hindus” the place under the central dome of the Babri Masjid where the idols of Ram Lalla were placed in 1949 is indeed the “birthplace” of Lord Ram.

For every Hindu who believes the spot under the central dome of the Babri Masjid is the precise spot where lord Ram was born, there is another who believes something else. But leaving aside the question of who “the Hindus” referred to by the court really are and how their actual faith and belief was ascertained and measured, it is odd that a court of law should give such weight to theological considerations and constructs rather than legal reasoning and facts. Tulsidas wrote his Ramcharitmanas in 16th century Ayodhya but made no reference to the birthplace of Lord Ram that the court has now identified with such exacting precision five centuries later… The “faith and belief” that the court speaks about today acquired salience only after the Vishwa Hindu Parishad and the Bharatiya Janata Party launched a political campaign in the 1980s to “liberate” the “janmasthan.” In 1993, the Supreme Court wisely refused to answer a Presidential Reference made to it by the Narasimha Rao government seeking its opinion on whether a Hindu temple once existed at the Babri Masjid site. Yet, the High Court saw fit to frame a number of questions that ought to have had absolutely no bearing on the title suit which was before it… One of the questions the court framed was “whether the building has been constructed on the site of an alleged Hindu temple after demolishing the same.” Pursuant to this question it asked the Archaeological Survey of India to conduct a dig at the Centre. Not surprisingly, the ASI concluded that there was a “massive Hindu religious structure” below, a finding that was disputed by many archaeologists and historians… The territory of India – as of many countries with a settled civilisation as old as ours – is full of buildings that were constructed after pre-existing structures were demolished to make way for them. Buddhist shrines made way for Hindu temples. Temples have way for mosques. Mosques have made way for temples. So even if a temple was demolished in 16th century to make way for the Babri Masjid, what legal relevance can that have in 21st century?

Extra-Legal

To Muslims it is an extra-legal verdict based upon myths and legends which have no place in law and legality. The verdict is not based upon points of law.

The 160 million Muslims find themselves confronted with an uncomfortable position after the unhinging judgment. Excruciating pressure is being built upon them to surrender their claim on their shrine. The moving sprit behind the first national shame, Mr. L. K. Advani believes that Muslim co-operation in building a magnificent Ramjanmbhoomi Temple would open a new chapter in national integration. The art of sadistically scoffing at Muslims should be learnt from our Saffron leadership. Amongst Muslims themselves there are the Jawed Akhtars and Zoya Hassans who dish out uncalled for advice. Without suspecting their intentions, we submit it doesn’t behove them because they are just ignoramus about the subject.

Another cutting remark against Muslims being heard these days is; Muslims should not put hurdles in the “story of India”, that is progress of the country. We ask; does justice to an aggrieved minority reverses the progress. Is going to the apex-court affect the rising curve of our GDP, exports, seat in the UN Security Council, might of our Military, Airforce and our navy and our nuclear capability? Is avoidably waging tongues also an argument!

Our government has been found reluctant to punish those who wilfully broke down the mosque although Mr. P. Chidanbram, admits “it was a criminal act.” The point is why the findings of the Justice Liberhan Commission not being implemented and shall, in the changed circumstance, those will be implemented when that very criminal act has been legitimised by the Allahabad High court?

All the umbrella organisations of Muslims like the A – I Muslims Personal Law Board and the A.I Muslim Majlise -e- Mushawarat want to go to the Supreme Court, which is the last and the highest palladium of justice. They have been making it known since the very beginning that they would whole heartedly accept the apex court verdict, even if it happens to be against them.