A primer on the Babri Masjid case
By Gautam Pingle | Published: 11th August 2017 04:00 AM |
The three-judge Bench of the Allahabad High Court at Lucknow pronounced its 8,000 page judgement on the Ayodhya case in September 2010. Each of the three judges wrote his own judgement. There are four separate suits clubbed together.
The Nirmohi Akhada had claimed redress 400 years later. Justices D V Sharma and Sudhir Aggarwal agreed that its suit was therefore time-barred, but Justice S U Khan did not. Muslims had lost the site in 1949 and filed a petition in 1961, Justices Sharma and Aggarwal ruled the Waqf Board suit was also time-barred but Justice Khan did not. The other suit by a Hindu party was dismissed on grounds of poor and faulty procedure.
Only the suit filed by Bhagwan Sri Ram Virajman at Ayodhya was considered maintainable and that suit was decreed and relief sought given by Justices Sharma, Aggarwal and Khan.
Justices Sharma and Aggarwal agreed on many of the critical issues and differed on others. Justice Khan seems to have an opinion of his own most of the time but said that he tended to sail with Justice Aggarwal, and together with him issued the majority verdict.
Justices Sharma and Aggarwal ruled that there was no evidence that Babar had the structure constructed in 1528; Justice Khan ruled it had been done on Babar’s orders.
Justices Sharma and Aggarwal found that as Meer Baqui, a Shia Muslim, constructed the Babri Majid, it was a Shia structure. Justice Sharma ruled that the Sunni Board has no locus standi, as it is not a Sunni Waqf property. Justice Aggarwal thought it was not material to the case but anyway possession could not be given to the Sunni Waqf Board because the Shia Mutawalli was not a party. Justice Khan ruled it was not relevant.
Justices Sharma and Aggarwal alone found that Hindus used the property as a place of worship immediately prior to the construction of the Masjid. Justice Sharma alone ruled that under Islamic Law, the building was not a mosque in view of the undisputed fact that it did not have minarets and surrounded by a graveyard, while Justices Khan and Aggarwal ruled it was a mosque.
The Court had commissioned the Archeological Survey of India to survey the site, excavate it and report its findings. The Report consisting 574-pages was in two volumes —one text and the other entirely with photographs. Justices Sharma and Aggarwal ruled that the evidence established that the disputed mosque had been constructed on the site after demolition of a Hindu Temple. Justice Khan said that it was constructed over “the ruins of temples”.
Justices Sharma and Aggarwal found that the evidence of pillars inside and outside the building contained images of Hindu Gods and Goddesses. On this account, Justice Sharma held that the building couldn’t, by Islamic tenets, have the character of a mosque. Justice Aggarwal thought this last issue (of mosque with Gods and graveyards) was “redundant” as did Justice Khan.
In 1938, a Full Bench of the Lahore High Court laid down that: “When a mosque is adversely possessed by non-Muslims, that is to say Hindus, the Muslims lose all the right in the land and the building, including the right to worship”. There is a similar judgment of a Constitution Bench of the Supreme Court in 1994. Justice Khan accepted the case law but held both Muslims and Hindus had joint possession.
While all three granted relief claimed by Lord Rama, Justices Khan and Aggarwal decreed the suit only partially in His favour. Justice Sharma gave all the land to Lord Rama consistent with his findings on all issues.
Justices Sharma and Aggarwal, who agreed on most of the issues did not, however, agree on a common verdict. Justice Khan disagreed on most of the issues, however, but agreed with Justice Aggarwal to divide the land into three parts. They then gave one part each to the two plaintiffs whose cases were dismissed and one part to the only plaintiff (Lord Rama) whose case Justices Sharma and Aggarwal found it proper and maintainable.
Nevertheless, settled law prevents courts from giving relief not sought by a litigant without the agreement of all of them in a compromise petition. It also prevents giving reliefs to plaintiffs whose suits were dismissed. The overall judgment—though it lacked consistency and cohesion—is a matter settled law, not compromise.
Justice Khan had to deal with issues that went against undisputed facts, Islamic law and tradition and settled law in order to maintain some right of the Muslims to the site. He concluded his judgment with thoughts for all Indians—Muslims and others:
“Muslims in India enjoy a unique position. They have been rulers here, they have been ruled and now they are sharers in power. They are not in majority but they are also not negligible minority ... In other countries either the Muslims are in huge majority, which makes them indifferent to the problem in question, or in negligible minority which makes them redundant.
Indian Muslims have also inherited huge legacy of religious learning and knowledge. They are therefore in the best position to tell the world the correct position. Let them start with their role in the resolution of the conflict at hand.”
Seven years have now gone past waiting for the Supreme Court to address the appeal and bring closure to the issue.
Former Dean of Research at Administrative Staff College of India, Hyderabad