The Ayodhya Verdict And Doing ‘Complete Justice’
Madhav Godbole, who was Union Home Secretary when the Babri Masjid was demolished, on the Supreme Court’s Ayodhya judgment.
The judgment of the Supreme Court in the Ram Mandir - Babri Masjid case, pronounced on Nov. 9, 2019, has made history. This long-standing communal dispute had held India hostage for seventy years since independence. Several questions are being raised on the judgment of the court but most of them do not do full justice to the highest court.
The Washington Post article, ‘India’s Supreme Court endorses right-wing vision relegating Muslims to second-class citizens’ (Nov. 11, 2019) is one of them. The injustices suffered by Muslims cannot be attributed to the Supreme Court. However, one question which needs to be asked is whether the court has given justice to the Muslims in accordance with the responsibility cast on the Supreme Court of “doing full justice in any cause or matter pending before it”, under Article 142 (1) of the Constitution of India.
The court has appropriately highlighted that as the final arbiter it must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another. The Constitution of India does not make a distinction between the faith and belief of one religion and another.
The court has also stated unambiguously that the court does not decide on a title based on faith or belief but based on evidence. The law provides parameters as clear and profound as ownership and possession. In deciding title to the disputed property, the court has applied settled principles of evidence to adjudicate upon which party has established a claim to the immovable property.
In this light, it will be appropriate to first take a look at the court’s findings. The net result, as it emerged from the evidentiary record, shows that:
1. The disputed site is one composite whole. The railing set up in 1856-57 did not either bring about a sub-division of the land or any determination of title;
2. The Sunni Central Waqf Board has not established its case of a ‘dedication by user’;
3. The alternate plea of adverse possession has not been established by the Sunni Central Waqf Board as it failed to meet the requirements of adverse possession;
4. The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship;
5. The Hindus and the Muslims have contested claims to the offering of worship within the three-domed structure in the inner courtyard. The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims. There is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh State by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857, after the construction of the mosque in the sixteenth century.
6. The existence of the structure of the mosque until Dec. 6, 1992 does not admit any contestation. The submission that the mosque did not accord with Islamic tenets stands rejected. The evidence indicates that there was no abandonment of the mosque by Muslims. Namaz was observed on Fridays till December 1949, the last namaz being on Dec. 16, 1949;
7. The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on Dec. 6, 1992, constituted a serious violation of the rule of law; and
8. Consistent with the principles of justice, equity and good conscience, the relief has to be moulded in a manner which preserves the constitutional values of justice, fraternity, human dignity and the equality of religious belief.
It is important to note that the court has held that the mosque was demolished in contravention of the orders of the court to maintain the status quo. The court has also held that during the pendency of the suits, the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque that had been constructed well over 450 years ago. These findings are important to consider the adequacy of justice meted out to the Muslims.
Attention must be invited to the considerations which weighed with the court in giving relief to the Muslims even though they had failed to establish their title to the land under the three domes of the mosque. Even then, the court felt that in the exercise of its powers under Article 142 of the Constitution, it must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its people.
Here, one enters the area of value judgment.
The Supreme Court had monitored the happenings in Ayodhya by holding day-to-day hearings for nearly ten days before the destruction of the Babri Masjid. The court had obtained an assurance from Kalyan Singh, the then chief minister of Uttar Pradesh, to protect the masjid. In spite of this, when the Masjid was wantonly demolished, the court was rightly disturbed.
Justice Venkatachaliah, who presided over the hearing on Dec. 6, 1992 evening, had remarked: “Unfortunately, we were not able to assess the magnitude of the problem. Only thing we can do now is to restore all the three domes at the earliest.” No such order was passed by the court but, soon thereafter, the then prime minister, PV Narasimha Rao, made a categorical announcement in Parliament that the government will rebuild the mosque.
During the hearing on Sept. 14, 1994, in the Supreme Court on the Ayodhya advisory opinion reference under Article 143 of the Constitution, the Solicitor General of India made a statement on behalf of the government of India which, inter alia, averred that the government was committed to the construction of a Ram temple and a mosque.
Against this background, the court could have asked that the mosque, for which a five-acre plot is ordered to be given, should be rebuilt by the government.
This was the minimum that should have been done to mend the hurt caused to the Muslim psyche. The court could have also declared how important it was to strengthen the secular forces in the country and to avoid a recurrence of such cases in the future. Considering not just the legal but also the moral authority of the Supreme Court, this would have gone a long way to reassert secularism as a part of the basic structure of the Constitution.
Madhav Godbole was Union Home Secretary (1991-1993), and Secretary, Justice, Government of India; and is the author, most recently, of ‘The Babri Masjid - Ram Mandir Dilemma: An Acid Test for India’s Constitution’ (2019).
The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.