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print version(From : Mail Today, 4 October 2010)
Evidence
Then from the Hindu side came 16 witnesses ( covering 2735 pages), then 3 more witnesses ( 293 pages) then 20 witnesses ( 2662 pages). There were 3 further lots of Hindu witnesses divided into 3 witnesses ( 701 pages), 3 more ( 454 pages) and at the end 4 more ( 423 pages).
The part of the case dealing with the ASI excavation produced 8 witnesses for the Muslims ( 2216 pages) and 4 witnesses for the Hindus ( 1209 pages).
There were a huge number of exhibits of unequal importance including those of travelers, schools of architecture, ordinary textbooks, the Imperial Gazetteer produced by the British and so on. A huge amount of this evidence was entirely speculative, relying on dead authors whose views may well have been partisan. Historians and archaeologists writing books are rarely confronted with such vast contentious material to attract their professional attention. The Muslims correctly argued that the entire theory of destruction of a Hindu temple by Babur is traceable to the Imperial Gazetteers which are not based on any historical source but on local belief.
It is tolerably arguable that the three judges, faced with the gigantic task of presiding over this mass of materials and documents, lost the wood for the trees. By contrast when the Privy Council dealt with the loss of the Shahid Ganj Mosque to Maharana Ranjit Singh, and this was accepted in a judgment of 1855, it wrote a six page unanimous judgment saying that it was too late to open any controversy. The site now belonged to the Sikhs and the 19th Century judgment was binding ( in lawyer’s language res judicata ).
The easiest thing in the world for the three judges would have been to follow a similar course for the Babri Masjid site, grant legal title to the Muslims, accept the 1881 judgment as res judicata and declare that the Muslims had not lost the site between 1949 and 1961 by which the time limitation had past; and the Hindus could not claim adverse possession.
Curiously none of the judges accepted this simple argument which would have disposed off the case.
It cannot be overlooked that this was a title suit. Most of the other issues were not legal issues in a strict sense. Justices Khan and Agarwal treated the case as a partition suit dividing the property which nobody had asked for.
This division was not just amongst the communities, but gave a portion to the Nirmohi Akhara who but for being a litigant, would not have figured in the calculations. Justice Sharma did not accept this ‘ partition’ approach and denied the title to the Muslims altogether, deciding nothing in favour of the Muslims at any point. He even concluded that Muslims cannot even use the open site to offer prayer. Since the title was the main issue, it seems incongruous to find Justice Khan saying that there was no direct evidence that the disputed site on which Babur built a mosque belonged to Muslims.
Partition
He concluded that the Hindus and Muslims were in joint possession; and, the Muslims had failed to show the title as a matter of evidence. The judgment gets curiouser because Justice Khan does not believe that Babur destroyed an existing Hindu Temple to build the Mosque which was then, a vacant site.
The argument of Justice Agarwal proclaims that the disputed structure was itself the deity; and ‘ as per faith and belief of the Hindus’ it was theirs. He had a very elaborate system of partition which gave the inner courtyard to both the communities, parts of the outer courtyard ( including Ram Chabutra, Sita Rasoi and Bhandar) to the Nirmohi Akhara and parts of the outer courtyard to the Akhara as well. The consolation of the Muslims, in this judgment, was that they would get at least one- third of the site. Separate entries would be provided for everybody. Never in legal history has a title suit been converted into a partition suit in this way.
The judgment appears to go on the assumption that there was a period when everything was hunky- dory between the two communities who at some times in the past prayed simultaneously, side by side, in peace. Can Hindu sentiment and the occasional simultaneous prayer by both communities be the basis of partitioning a title suit? If so, many sites may be in peril from many communities who are able to demonstrate some firm mythical belief connected with the site. Judges should not try being historians and archaeologists.
None of the facts were proven even on the balance of probability test. Particularly disturbing is the acceptance of the ASI Report which made unscientific excavations that there was a Hindu Temple there in 1526. This would make the site haraam ( prohibited) for the Muslims and prevent them praying there at all.
Commentators have contrasted the narrow legal argument ( that the Court outreached itself) against the consequentialist contemporary requirement of peace.
This was to show that discontent with the judgment is limited to nit- picking by lawyers. This is not the case. The legal argument serves as a foundation for the social argument that the 1992 demolition was not justified because there was no legal Masjid on a Muslim legal site. In this way, the judgment legitimates the Hindu claim to downgrade the barbaric brutality of the December 6, 1992 destruction.
Appeal
Even though the BJP politicians are now generously prepared to admit that the destruction was unfortunate. Their political fortunes were built on provoking hate. The ‘ historic revenge’ argument which animated BJP- Sangh Parivar politics seems to have gone.
For the future, people will wonder whether India’s secular rule of law favours the majority whose common sentiment claims are elevated to legal rights and disfavours the minority whose legal and religious rights are derecognised.
It was possible to recognise both the Muslim Mosque and the Hindu right to prayer and leave it to the communities to work out the solution. Instead we have three clumsy judgments based on doubtful legality and portraying majoritarian solutions.
Maybe on appeal, the Supreme Court will be able to clear up this mess and secure ‘ peace and honour’ on a more just and secular basis. With this controversy over, Parliament’s law of 1991 that all other sites will observe the status quo which prevailed on August 15, 1947 should be respected. Bad theology, doubtful law and false ideology do not portend well for the future.
The writer is a Supreme Court lawyer
