THE Supreme Court of India’s judgement in the Babri Masjid case does no credit to the court’s reputation. It comes in the wake of its studied denial of redress to the Kashmiris after the Modi government’s outrageous attempt on Aug 5 to destroy the very identity of Kashmir.
The judgement flouts every canon of the centuries-old format of judgements. With British rule came courts which followed the British practice in writing judgements. One judge writes it, the others record their concurrence or dissent. The law reports faithfully record them. Reasons for dissent are always set out. Concurrence can dispense with the reasons but they are sometimes recorded. All this is imperative because transparency is a guarantee of integrity.
In the Babri Masjid case, the five-member bench purported to render a unanimous judgement signed by all. But, contrary to the practice in English courts, to which we are heirs since the 18th century, the supreme court’s judgement in this instance does not record the author of the judgement. It simply records the judgment and signatures of all five to provide an appearance of unanimity.
At the very end of this 929-page judgement comes this strange paragraph: “One of us, while being [sic] in agreement with the above reasons and directions has recorded separate reasons on ‘whether the disputed structure is the birthplace of Lord Ram according to the faith and belief of the Hindu devotees’.” The reasons of the learned judge are set out in an addendum.
Cases are decided according to the law not faith.
This strange document begins by reproducing that issue differently in these words: “Whether disputed structure is the holy [sic] birthplace of Lord Ram as per the faith, belief and trust of the Hindus?” Such inaccuracy is inexcusable in the pronouncement of any court of law, especially in the judgement of the highest court of the country.
This addendum runs into 116 pages and ends with these revealing words: “It is thus concluded on the conclusion [sic] that faith and belief of Hindus since prior to the construction of Mosque and subsequent thereto has always been that Janamasthan (birthplace) of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above.” One would be justified in retorting. ‘So what?’ Cases are decided according to the law and evidence; not faith.
The Babri Masjid was built by Mir Baqi, a commander in Babar’s army, in 1528. During the night of Dec 22-23 1949, idols of Ram were placed in it and Muslims were excluded completely.
Section 145 of the Criminal Procedure Code provided for just such an offence. A magistrate inquires as to the fact of possession and restores the property to the person in whose possession it was. The encroacher is left free to file a regular civil suit on title. But in this case the mosque was not restored to the Muslims; instead, a receiver was appointed and clothed with a scheme for administration.
Muslims were excluded and it is a strange coincidence that every judicial pronouncement since went against Muslims — from district courts, the high court to the supreme court.
The masjid was demolished by the goons of the RSS, BJP and Shiv Sena on Dec 6, 1992. Criminal proceedings launched against the leaders — L.K. Advani and the rest have made scant progress. There now comes the supreme court’s strange verdict strangely expressed with a stooge addendum which belies its unanimity.
The court holds that the idols were indeed planted inside the mosque on Dec 22-23, 1949, and holds also that the demolition on Dec 6, 1992, was against the ‘rule of law’. But it does not restore the masjid to the victims of those two crimes. It rewards their perpetrators’ successors in interest with possession of the land on which the demolished masjid stood. It caps this order with a direction to build a temple to and frame a scheme for its management. Muslims are fobbed off with pretentious balancing — they are awarded five acres of land on which to build a mosque.
Barring a few ever-present Uncle Toms among Muslims, writers and public figures of repute have rejected this offer. A heartening feature of the debate since is that non-Muslim writers and intellectuals of standing have censured the verdict as being influenced by the move of the majoritarianism sweeping India today.
The judgement makes more than one reference to the case of the Shaheed Gunj mosque in Lahore. Unlike Ram whose historicity is contested by some Hindus — notably C. Rajagopalachari — there existed an authentic deed of Waqf. The venue was occupied by Sikhs when they conquered Punjab in the 19th century. Muslims sued for its recovery much later and lost in all the courts.
There were demands by Malik Barkat Ali and K.L. Guha for legislation to override the Privy Council’s judgement. The premier Sikandar Hayat Khan refused. Quaid-i-Azam Mohammad Ali Jinnah and the Muslim League backed him. The gurdwara remained.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, November 16th, 2019