This Babri case is going to be a landmark to show as to whether the country shall be governed by Rule of Law or by the concept of majoritarianism where rights of minority is not recognised. Rule of law recognises rights of every citizen and require stringent action against those who take law in their hands. All the wrongs committed to the Masjid by the followers of `Lord’ Ram has been finally upheld by the present judgement. The judgement recognises the said serious offences to the Masjid and still gives entire land to the temple. This judgement has certainly created confusion amongst the mind of many. Despite giving findings that it was a Masjid, at least, from 1856 till 1949, when unscrupulously idols were placed inside the Mosque; can the court exercise its discretionary power to give away title to the other contesting party because a weak and conflicting evidence suggests that the land is believed to be the Place of Birth of Lord Ram? No. This would be against settled law. Five acres of land offered to the Muslims is not new to them. Muslim community has rejected such offers.
M R Shamshad
(Supreme Court Advocate)
NEW DELHI, NOVEMBER 20—In 1857, the US Supreme Court decided in Dred Scott v. Sandford, that the Constitution of the United States was not meant to include American citizenship for black people, and therefore the rights and privileges it confers upon American citizens could not apply to them. It was wrong proposition but binding on the US citizens till the time the US Constitution was amended. Similarly, our Supreme Court decided ADM Jabalpur case in 1976 taking away fundamental right of the citizens. It was an erroneous and ridiculous proposition but that remained effective till very recently, when that judgement was overruled. Babri Masjid’s Judgement of the Supreme Court is present days Dred Scott proposition.
This Babri case is going to be a landmark to show as to whether the country shall be governed by Rule of Law or by the concept of majoritarianism where rights of minority is not recognised. Rule of law recognises rights of every citizen and require stringent action against those who take law in their hands. All the wrongs committed to the Masjid by the followers of `Lord’ Ram has been finally upheld by the present judgement. The judgement recognises the said serious offences to the Masjid and still gives entire land to the temple. This judgement has certainly created confusion amongst the mind of many. Despite giving findings that it was a Masjid, at least, from 1856 till 1949, when unscrupulously idols were placed inside the Mosque; can the court exercise its discretionary power to give away title to the other contesting party because a weak and conflicting evidence suggests that the land is believed to be the Place of Birth of Lord Ram? No. This would be against settled law. Five acres of land offered to the Muslims is not new to them. Muslim community has rejected such offers.
It is another matter, though important, that a long pending issue with serious ramifications has been given finality by the Highest Court, subject to the review to be filed, if any. Judgement has various findings and observations which are correct and ensuring the values of the system. However, the outcome is against the cause of the Masjid. There are already innumerable findings recorded in the history of the Supreme Court. Despite the said fact, mob lynching happens; couples are attacked in the name of alleged `love jihad’etc.
Whoever says that if Muslims had surrendered or gifted the land, that would have given quietus on the claims on other religious places, are either ignorant or does not believe in Rule of Law. Those who are ignorant, I say there is law of Parliament which protects the ‘religious character of a place of worship existing as on 15.08.1947 and the same shall continue as it existed on that day’. There was exception of Babri Masjid issue in the Act, this litigation was permitted to continue. No leader of Hindu religious group, including the present government, took stand that they will respect this law and purported claims of Hindu parties on other religious places of Muslims shall be dealt with appropriately in terms of this law. This was not for Muslims to go and beg to their Hindu brothers.
Apart from this category of people, remaining are those who do not believe in the Rule of Law of the country because, irrespective of existence of 1991 legislation, the Rule of Law of this land demands that nobody should be permitted to touch or convert any place of worship of one religious denomination to the another by force or by judicial pronouncements, let alone by demolishing them or by violating the express undertaking given to the Highest Court of the country. We cannot take pride in our democratic set up if our leaders, institutions and government officials do not respect Rule of Law. In this case, from 1949 till 1992, all of them have, regretfully, not been able to uphold Rule of Law. This case shall be landmark in the Indian judicial system to examine the concept of Rule of Law. None of the violators of the Rule of Law has admitted this fact despite the order of the Highest Court. Few of them have taken pride in it, many found big great political fortune. That is unfortunate for the entire system and direct attack on the judicial process.
Article 25 of Constitution of India gives every citizen right to profess, practice and propagate religion subject to public order and other part of the Constitution. In this case, in the name of astha(belief), well designed public order issue was created and the state authorities played in their hands firstly to place the idol inside the mosque in 1949 or demolition of mosque in 1992. This is unfortunate for any democracy ruled by Rule of Law. By this, the State is free to treat different religion differently because of the public order requirements? If Public Order becomes the issue to govern the governmental issue, there shall be no place for the Rule of Law.
We are at the juncture where the politics, and to a great extent bureaucracy and police, are trying to make the concept of secularism irrelevant for the minorities and a strong sword for the majority. We can only hope that the observations of the Supreme Court in relation to Temple’s claim and finally handing over the Masjid land to the Temple at this location shall not give strength to the movement of various parties, who are eying on different religious places of Muslims at various places in Country. Every religion is based upon belief system. Belief may be found in religious books or in long practised act of the followers. In this case, there is Balmiki Ramayan which gives inference that Lord Ram was born in Ayodhya. Muslim Community has no quarrel with the said belief of the followers of Lord Ram. This stand of Muslim side is also recorded in the High Court judgement. Thereafter, you have religious experts, who testify in court about the era of Lord Ram. Some say, 16 to 17 lakhs years before, some say more than one crore years before. Nobody has a case that era of lord Ram existed as recently as 1000 years before or even 5000 years before.
Now come to the practice of the locals about the Janmbhoomi. Before 1855, a temple called Janmsthan Temple, which is 60 meters away from this site, was believed to be the birth place of Lord Ram. That temple is still a live Temple. In 1855-1856, due the mischief of the Britishers, Ram Chabootra was set up and that started to be believed as Janmsthan. There were litigations in 1890s by Chabootra Janmsthan claiming Chabootra to be ‘Janmsthan’ accepting the mosque. Chabootra lost the case. Thereafter till 1949, the Masjid remained a live Masjid. Some say, after 1934, only Friday prayer were held till 1949, many testified that 5 times Namaz was offered till 1949. And in December 1949, you start having belief that below the Central dome of three dome live Masjid, Lord Ram was born. Within 200 years you confine your belief from entire Ayodhya to 60 meters away in Janmsthan Temple, then you take it to the outer courtyard of the Mosque by constructing a Chabootra and finally in 1949, inside the Masjid? Does this not reflect the aggression on religious belief of Muslims in the name of Lord Ram? It does. Sad, this has got judicial sanction of the highest court of the country.
*The author is Advocate on Record, Supreme Court, who appeared in the Babri Masjid case.
