What are the key legal takeaways from the 1,045-page judgment delivered by the Supreme Court on November 9? And can the verdict on the title suit to the land where the Babri mosque once sto od be challenged? Outlook asks former additional solicitor general and Supreme Court lawyer Sidharth Luthra, NALSAR University of Law vice chancellor Faizan Mustafa, Supreme Court lawyer Vikas Singh and advocate Eijaz Maqbool, who represented a Muslim litigant in this case.
1. How different is the Supreme Court verdict in spirit from the Allahabad High Court judgment of 2010, which was criticised for its attempt at conciliation?
Faizan Mustafa: The Allahabad High Court judgment was wrong on the law as it was not a partition suit and relief cannot be given to a party whose suit is barred by limitation. But the judgment was good as it tried to preserve our composite culture at the disputed site. The relief was better than the Supreme Court judgment. The apex court criticised the Allahabad HC for giving relief to parties in limitation, yet it accommodated Nirmohi in the trust. This judgment is more about the practical difficulties in dividing the disputed site as no party would have been able to enjoy the land in peace. It is a practical solution for closing this dispute.
Sidharth Luthra: The Supreme Court decision is in two parts. First are the findings on pleadings and evidence as is the norm in a civil suit. The court found that possession of the outer courtyard was with the Hindu parties and the inner area was not exclusively with the Muslim party. Holding that the plot of 1,500 sq m was indivisible, and after recognising that the structure destroyed was a mosque and namaz was offered until 1949, the court moulded relief under Article 142 of the constitution (inherent powers) and gave the Muslim parties 5 acres as restitution on account of their rights.
Vikas Singh: The judgment of the Allahabad High Court was an attempt at conciliation because the disputed site itself was divided into three parts. On the other hand, the judgment of the Supreme Court is not an attempt at conciliation. It has clearly decided on the conflicting claims and held that Hindus have a right to claim the disputed site as the birthplace of Ram and construct a temple there. While deciding on the issue, the apex court has relied upon the evidence of the Muslim parties themselves, who had complained even way back in 1857 that Hindus were coming into the mosque to offer prayers for centuries. The court also relied upon the evidence of certain travellers.
In allotting land to the Muslims, the Supreme Court has not resorted to conciliation. It has only tried to undo the wrong caused to Muslims by the demolition of the mosque. To correct the said wrong, the court exercised its extraordinary power under Article 142 to allot a 5-acre piece of land, almost double the size of the plot on which the mosque stood. The premise of such use of extraordinary power is embedded in Indian jurisprudence to the effect that a trespasser also has a right to remain in possession until evicted in accordance with the law.
Eijaz Maqbool: The Allahabad High Court directed the division of the suit property between the contesting parties in an attempt to pacify the issue by giving a certain portion to each contesting party. However, no such relief was claimed by any of the parties from the court at any point of time. It was purely an attempt at conciliation, but contrary to the rights of the Muslim community vested in the suit property. Now, by way of the present verdict, the Supreme Court has offered alternate land to the Muslim community and representation to the Nirmohi Akhara in the proposed trust, which is also self-contradictory.
The Muslim community was litigating for its rights to the very land that was the subject matter of the case and never pleaded for any alternate land. Therefore, the granting of alternate land to the community cannot be justified when the specific land they were litigating for was not decreed in their favour.
The fallacy of the judgment is reflected in the following question: If the Babri Masjid had not been demolished on December 6, 1992, against the clear orders of the Supreme Court, then would the Supreme Court today, by this judgment, have directed the destruction of the mosque for handing over the land to Ram Lalla?
2. Has the majority’s faith been treated as more important than that of a minority?
FM: Yes, this is the real effect of the judgment. The court, however, has said it is not deciding on the basis of faith, but on evidence. You cannot have different rules of evidence for various parties. The judgment is unfair as it has put too heavy a burden on the Sunni Waqf Board and too light on Suit 5. The message sent by the court will raise more questions. Many experts would see a sort of effort in upholding the beliefs of one group over another. To justify its stand, the court has widened the ambit of freedom of religion. It will create problems in cases involving gender injustices under religious beliefs and laws.
SL: It is not a case of majority or minority. The suits have been decided on an interpretation of evidence and pleadings, and not faith. This is within the domain of the court. The ultimate relief of allocation of land, however, is based on Article 142’s inherent powers to do complete justice, i.e. what the court believed was a workable solution to an issue of title suits.
VS: The Supreme Court has not decided the case on the basis of faith. It has decided the case on the basis of evidence led in the matter which proved beyond doubt that the Muslims never had exclusive possession of the mosque and as per the stand of the Muslims themselves, the Hindus always offered prayers in the Babri Masjid on the basis that it is the birthplace of Lord Ram. The court also noticed the report of the Archaeological Survey of India, which was submitted after the demolition of the mosque. The report stated there was a large structure that could be clearly said to be of Hindu origin under the mosque. The court also accepted evidence laid by various parties to suggest that Hindus believe the Babri Masjid site to be the birthplace of Lord Ram. On the other hand, the Muslims had no claim to the effect that the particular site was of some religious significance for them. It was not as if the Muslims had a faith that the Babri Masjid was constructed on a site that had some special significance to the Muslim community or Islamic religion. The Muslim community contested the case throughout on the only premise that there was a mosque at the site, which the Hindus had no right to demolish.
EM: Faith and belief ought not to be taken into evidence while determining the issue of title, ownership or possession. If this is done, it will result in devastating consequences in matters relating to proprietary rights in future. No doubt the verdict holds the faith of the Hindu majority as more important than that of the Muslim minority, purely on the basis of conjectures and surmises corroborated by faith and belief. This is completely contrary to the settled principles of law.
3. So God is a juristic person with the right to sue. What about Varanasi, Mathura?
FM: There is actually nothing new in this finding. The law is settled on the issue—Hindu idols are juristic persons who can own properties; they can also sue and be sued. The court has quoted the Places of Worship (Special Provisions) Act of 1991 to state that no future claims can now be made. But nothing really prevents Parliament from repealing this Act.
SL: By the 1991 law, the character of any place of worship as on August 15, 1947, will not be changed. Under Section 5 of that law, only the Babri Masjid or Ram Janmabhumi was left out of its purview ,and hence the issue was determined by the court.
VS: The fact that God is a juristic person will have no consequence for any of the other contentious sites in India. Moreover, that God is a juristic person has already been decided by several earlier judgments of the Supreme Court and it does not in any manner enunciate any new jurisprudence on the subject.
EM: Pertinently, the contention of the Hindu parties was based solely on the ground that the land itself was a deity, i.e. swayambhu, and therefore, had a right to sue for its rights. However, the Supreme Court did not decide this in the affirmative. Instead it declared the idol, which was admittedly shifted from the outer courtyard to the inner courtyard on the intervening night of December 22-23, 1949, as a juristic personality. The shifting of the idol to the inner courtyard was illegal; therefore, the court ought not to have granted any right to the said idol. Moreover, the court ought not to have overlooked the fact that such a verdict may give rise to similar disputes at other sites, though they are fully protected by the Places of Worship (Special Provisions) Act, 1991, which has also been mentioned in the judgment.
4. Do the repeated references to “balance of probabilities” set a new precedent?
FM: No, this is again a settled principle in civil cases. The court rightly stated the law, but wrongly applied them to the facts of the case. On balance of probabilities, the court should have held that the Babri Masjid was used for prayers from 1528 to 1855. It was not necessary to question the use of the mosque for prayers during the period of Mughal rule and the rule of the Avadh nawabs was unnecessary. In fact, this was not an issue framed by the high court. No evidence was laid by the parties on this issue. The court cannot condemn any party without giving it an opportunity to give evidence.
SL: Suits are decided on evidence as per the Indian Evidence Act of 1872. The court reads and then applies evidence based on admissibility and relevance, and then gives its interpretation, as it has done in this case. Historical texts have to be proved as per the Evidence Act and only then can they be relied upon.
VS: In civil matters, there are several occasions where the balance of probabilities is the basis of deciding a particular matter wherever direct evidence on the issue is not available. The decision in the given case is based upon the evidence laid in the suit. While dealing with the said evidence, the court has also referred to the rationale of the balance of probabilities, which is a settled way of deciding civil disputes. The verdict sets no new precedent in deciding civil disputes as the principles relied upon have been followed from before.
EM: Considering all the documents and pieces of evidence on record, it can be well construed that there was no balance of convenience or probabilities in favour of Lord Ram. Hence deciding in Lord Ram’s favour under the garb of the balance of probabilities cannot be called a sound decision. The verdict will set a conflicting and bad precedent in deciding civil disputes where documentation, historical and empirical evidence clash with religious beliefs and texts.
5. The judgment hasn’t been signed by the judge who has authored it. Unsusual?
FM: This is unusual and should not have been done. Judges must give judgment without fear. They should have disclosed their names.
SL: The failure to mention the judges’ name is not irregular or illegal, nor can be called into question. After all, it was pronounced in the Supreme Court and the original was signed by all. It is acceptable and valid.
VS: The judgment is to be applauded for not indicating the name of the judge who wrote it. This clearly signifies that every judge has contributed to the body of the judgment—either directly by adding some paragraphs to it, or indirectly by reaffirming the contents. By not indicating the name of the author, the judges have also shown a lot of foresight and statesmanship as none of the judges in the bench wants to take credit for writing the judgment. The judges have also felt it necessary to share the credit of the judgment among all the judges who heard the matter.
EM: It has broken the convention of a judgment being signed by the judge who authored it. However, it is well within the authority of the court to adopt such a practice.
