Opinion | Oh, Solomon!5 min read . Updated: 10 Nov 2019, 12:30 AM IST
The Allahabad High Court order, dividing the property among three parties, may have been a more equitable resolution
The knowledge that it had been the second longest hearing in the history of the Supreme Court, lasting 40 days, had whet our appetite and increased excitement over the rather mundane sounding property title case. In tune with our obsession with records, we were informed that this duration was surpassed only by the 68 days spent on the Kesavananda Bharati case, which laid down the doctrine of “basic features of the Constitution". Saturday’s Ayodhya verdict was integrally linked to secularism, considered a basic feature.
Jostling with near stampede conditions marked the beginning of the day’s event, as the hallowed portals of the Chief Justice of India’s (CJI) court remained closed till 10.10 am while the appointed judgement time of 10.30 am approached. It did not speak much of the managerial skills of our judicial administration. The general mood of the lawyers packed into the hall like sardines was, “Of course, it will be a consensus judgment that a Ram Temple will be constructed at the site." Colonial pomp and ceremony had meshed in well with indigenous features of Indian society, with five turbaned ‘darwans’ standing behind the five throne-like chairs for the judges.
We observed a document being signed by all five, establishing a rare consensus judgment on a genuinely contentious issue.
The Honourable CJI proceeded to read the salient and operative parts of the judgement in pin-drop silence. It was replete with such lines as, “By determining their limits, this Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another". We learnt that the Constitution did not make a distinction between the faith and beliefs of one religion and another, and judges are “not only tasked but sworn" to uphold constitutional values. It was reminiscent of school lessons: all forms of belief, worship and prayer are equal and that “those whose duty it is to interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation". Lawyers are a seasoned, experienced and cynical lot, familiar with such language.
The mood remained upbeat that the ruling would favour construction of a Ram temple, even as the Court declared that settled principles of evidence were applied to decide which party had established a claim to the disputed immovable property. While rejecting the argument on behalf of the Akhil Bhartiya Shri Ram Janmabhoomi Punarudhar Samiti that the Babri Masjid lacked the essential features of a mosque in Islamic jurisprudence, the Court enunciated that as a secular institution, it must steer clear of choosing one among many possible interpretations of a theological doctrine, and must “defer to the safer course of accepting the faith and belief of the worshipper", and ruled that the Masjid was a valid mosque. This had the effect of a googly.
Applying the same to the question of the birthplace of Lord Ram, the Court declared that evidence of worship at the Ram chabootra and the offerings had clearly established that Hindus believe he was born in the garbha griha (sanctum sanctorum), below the central dome of the Babri Masjid. The judgement went on to declare that the question of whether this faith and belief had a foundation in factual reality based on evidence was beyond the domain of the judiciary as a secular institution.
The Ram Janmabhoomi rath yatra, with violence in its wake, culminating in the demolition of the Babri Masjid on 6 December 1992, and the entire campaign has always maintained that the birthplace of Lord Rama was a matter of faith. Whether courts of law need to endorse this and base decisions on the touchstone of faith and belief is quite another question.
Departing from the domain of the evidentiary and factual as to the birthplace of Lord Ram, the Court confined the inquiry of evidence to practice, and declared that there was clear proof to indicate long and unimpeded worship by Hindus in the outer courtyard of the complex, which continued in spite of a grill-brick wall put up in 1857. The judgement also recorded a finding that it stood established that prior to the annexation of Oudh in 1857 by the British, Hindus had offered worship in the inner courtyard. It also declared that Muslims had not offered any evidence to show that namaaz was offered for more than three centuries since the construction of the mosque in the 16th Century till 1857. The evidence had been held to establish that Islamic prayers were offered from 1857 to 22-23 December 1949, when idols were surreptitiously placed in the mosque. Phrases like “appreciation of evidence" and “preponderance of probabilities" to reach conclusions, however, are hardly amenable to any precise objective criteria. Suffice to remember that instances abound where one court may award a death penalty and another may acquit the person on the same evidence.
Courts are approached for a remedy in case of a legal wrong. The findings of the apex court with regard to the Babri Masjid are unequivocal with respect to the placing of idols. The Court records the finding that the exclusion of Muslims from worship and possession of the property that took place on the intervening night between 22-23 December 1949, when idols were installed under the dome, “was not through any lawful authority", but through an act which was calculated to deprive them of their place of worship. In respect to the destruction of the Babri Masjid, in violation of an undertaking given to the apex court, the findings are again categorical that it was a calculated act of destroying a place of public worship and “an egregious violation of the rule of law".
As per the apex court, two wrongs stand established: the events of 22-23
December 1949 and of 6 December, 1992. The remedy offered for the findings of dual wrongs by the Court is the allotment of five acres of land for the construction of a mosque at another location in Ayodhya. The adequacy of the measure as reparation for the wrongs clearly recorded by the highest court of this land is a moot point and open to question.
Enunciations on secularism and balance apart, separating the chaff from the wheat, the judgement has decreed the title suit in clear terms and declared that the entire premises where the Babri Masjid stood, and the outer courtyard where Ram Chabootra stands, belong to the plaintiff, Bhagwan Ramlalla Virajman. Property so vested in the idol of a deity necessarily means that its possession and management are exercised through human agency. Thus has the space under dispute finally been handed over for the construction of the Ram Mandir. Perhaps, the Allahabad High Court order, dividing the property among three parties—the Sunni Waqf Board, the Nirmohi Akhara and Bhagwan Ramlalla Virajman—may have been a more equitable, Solomon-like resolution.
Rakesh Shukla is a Supreme Court advocate based in Delhi