Saturday, September 30, 2023

CJI Khehar’s amicable settlement advice was pragmatic

By Justice (Retd) K Sreedhar Rao

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Justice Jagdish Singh Khehar, former CJI, had given a sagacious advice: have an amicable settlement in the Ram Janambhoomi-Babri Masjid case. The majority of intellectuals and even politicians, including many Muslim leaders, had welcomed the advice. There were only a few exceptions.

The failure of previous endeavours need not make one sceptical of another attempt to explore the possibility of a settlement.

There were in all four suits filed, which were clubbed and jointly tried by the three-judge bench of the Allahabad High Court. The judges, by separate judgements, passed an equitable order on the basis of the facts and evidence, directing the divisions of the disputed land into three parts. The area of the land where the makeshift temple is situated is to be allotted to the plaintiff-deity. The area where Ram Chabutara and Sita Rasoi shown in the map to be allotted to Nirmohi Akhara and the third portion should be allotted to the Sunni WAKF Board.

There were 28 issues framed in the suit. However, on concision the broad analysis the following disputed contentions would be more relevant for understanding the rival claims.

  1. Whether Babur/Mir Baqi constructed the mosque in the year 1528 on the area after demolishing an existing Hindu temple.
  2. Whether the Muslim Sunni WAKF Board has title to the property and is in exclusive possession, uninterruptedly performing the prayers in the mosque till its dispossession in the year 1949.
  3. Whether the Ramlala Virajman deity has title to the property and is in exclusive possession uninterruptedly, performing the prayers and worship.
  4. Whether plaintiff Nirmohi Akhara has title to the property by adverse possession or otherwise.

Pre Independence Litigation

The dispute between Hindus and Muslims over the worshipping rights arose in the year 1853, resulting in periodic violence. In 1855 the civil administration made arrangements for worship for both Hindus and Muslims, by dividing the mosque premises with a divider. In 1885 one Raghubar Das the Hindu mahant of Ram Chabutra, filed a civil suit before the Faizabad sub-judge for constructions of a temple. The sub-judge and the district judge dismissed the suit. However, both of them, in their orders, observed that the mosque as built on a land considered to be sacred by Hindus, but order is to maintain status quo, since it is too late remedy the grievance.

Historical records disclose that Muslims and Hindus were jointly offering prayers till 1855. The priest of Babri Masjid in 1858 in his petition to the British government, stated that the courtyard has been used by Hindus for hundreds of years.

Post Independence Litigation

The second phase of the litigation started in December 1949, when idols were installed under the middle doom of the temple. The district administration, sensing serious law and order problems, locked the gates. However, the priests were allowed to go inside from an alternative entrance to conduct worship of the idols.

A substantial and comprehensive suit was filed on behalf of the deity, seeking declaration that the entire disputed area belongs to the deity and seeking perpetual injunction against the Sunni WAQF Board and other individual Muslims to not interfere in the construction of a temple and for the demolition of the mosque. The Sunni WAQF Board filed a suit for declaration that the disputed property is a public mosque known as Babri Masjid and half-heartedly prayed for delivery of possession of the mosque after removal of the idols if the court so opines.

In law, a bare suit for declaration is not tenable without consequential relief. The WAQF board does not seek a consequential relief of possession, but leaves it to the discretion of the court to order possession if it so opines. Such a half-hearted prayer is untenable without seeking a specific relief of possession,  and the suit would not be maintainable in law.

With regard to the title to the disputed property two of the judges have given a finding that the Sunni WAQF Board has no title to the property. However, the other judge holds that the WAQF board, the deity and Nimrohi Akhada are in joint possession and nobody is in exclusive possession. Thus it directs equal allotment of a third to each of them.

In Hindu law a deity is a perpetual minor capable of owning the property. The persons who manage the property of the deity are only the trustees and as guardian on behalf of the deity can sue and be sued. In Muslim law a property dedicated for religious and charitable purposes will be owned by Allah and called WAQF property. The WAQF can be created orally. The WAQF once created validly is irrevocable. A minor or an insane person cannot create WAQF. A person can create WAQF of the property which is held by him rightfully.

There is an irrefutable finding that beneath the mosque under the sub-soil a temple exists. The fact that the temple was destroyed or was in a ruined state does not take away the title of the deity over the land. Similarly, in Muslim law if the mosque is destroyed or dilapidated the property vests in Allah and continues to be WAQF property.

It is one of the inviolable mandates of the holy scriptures of Islam that a person can dedicate a property to WAQF over which he has a right and a disputed property cannot be dedicated to WAQF. In the present litigation the disputed property is vested with the deity, irrespective whether temple was destroyed or ruined. It is impermissible in Islam to dedicate the property for WAQF by constructing a mosque over which the deity had lawful rights.

The finding of the majority of the judges is that the WAQF of Babri Masjid is not lawful and valid according to the tenets of Islam. Hence the Sunni WAQF Board cannot claim a title over the disputed property as a WAQF property appears to be a sound view.

A different view taken by the Justice Sigbhat Ullah Khan’s view is also correct in a way, because the facts and evidences disclose that in the year 1885 the civil administration, managed by the British, divided the mosque into two parts, as inner yard and outer courtyard, by putting a divider. It is found by the judges that Hindus were conducting worship in the outer courtyard and in the inner courtyard also. There has been a joint worship by both the communities. Therefore, construing the disputed property as a joint property is in one way just and equitable and would justify the division and distribution of the land in three equal parts at a third each.

Demolition and reconstruction

The first disputed contention relates to demolition of the temple and construction of the mosque over that land by Babur/Mir Baqi. This is a vexed question, which drives to dwell into historical antiquity. There is a plethora of historical versions which would suggest that Babur demolished the temple and constructed a mosque over the land. Some of the left wing historians seriously contested the theory of demolition of the temple by Babur for constructing a mosque with reference to gaps in the historical accounts like Tulsidas, Babarnama, Akbarnama and the historical account of English traveller William Finch who do not refer to the mosque built by Babur.

The ASI excavation clinchingly established a temple structure beneath the sub-soil structure of the mosque which lends corroboration to historical chronicles which argue the destruction of the temple and construction of a mosque over the land so also the observation of the sub-judge and district judge of Faizabad found justified. 

A mosque was built in the land in Ayodhya called Hanumangarhi by one of the generals of Aurangzeb in 17th century. The land on which the mosque was built was granted to Hindus by the Nawab of Awadh on the condition that the Hindus should not disturb the Muslims from conducting prayers in the mosque. The mosque is dilapidated and has become dangerous for human use. The local administration recently banned entry of the people into the dilapidated mosque. When the Muslims of Ayodhya requested the mahant for permission to reconstruct the mosque as a fraternal gesture, the mahant offered to construct the mosque at his cost.

The need for construction of the mosque at the disputed place may not have any religious significance except for an unpleasant historical factor, unlike the religious significance the Hindus associate their sentiment that it is the birthplace of Ramlala. The Muslim brethren should show magnanimity in accepting the equitable verdict of the Allahabad High court.

The secular culture of the Indian society is very robust, despite the attempts of the politicians to dent the secular fabric for unholy political ends.

Serious human conflicts on religious lines are rife the world over. Radical elements are trying to establish their foothold, the ISIS is posing a great danger to humanity with its violent hard line religious ideology. Misguided Indian Muslims should not fall in to the trap of ISIS. It is the need of the hour that India should stand united.

A decision of the Supreme Court may be final but not fine in the national interest. The cause of the secularism would be well served by amicable settlement as suggested by CJI. The left wings and liberals who have been taking a rigid technical stand should become more pragmatic and liberal in word and deed to support for amicable settlement.

The author is a former Acting Chief Justice of the Gauhati High Court.

Acting Chief Justice of the Gauhati High Court

Opinions expressed in the article are the author’s own.

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