Opinion

Babri Masjid demolition case not a matter for compromise

March 30, 2017 05:50 AM
Babri Masjid demolition act

WRITER: Rajindar Sachar*

The suggestion by the CJI asking the parties in the Babri Masjid case to consider a mutual agreement showed concern but is not plausible. SC must let constitutionality prevail. Is a multi-faith structure more pragmatic than an amicable solution?

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The suggestion of the Chief Justice of India to act as a mediator in the pending Babri Masjid demolition case, showed his concern but was a little odd considering that it has come at the instance of an inter meddler, and without parties involved being before the Court. That is why it caused a certain concern amongst the parties.

In my view, the Babri Masjid demolition case is not a matter for compromise. This case raises the deep constitutional concern regarding our Constitution which clearly says India is a Secular Republic.

There is another reason why in such a situation, the suit will fail because in common law, even a rightful heir, if he kills his ancestor, forfeits his right of inheritance. In the masjid case too there was a "murder most foul." Hence, the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the factual position may be. 

I was in Geneva attending the meeting of the Sub-Commission on the Promotion and Protection of Human Rights, when I received the horrific news that came on television that the Babri Masjid had been demolished and saw the gory spectacle of BJP hoodlums climbing atop the Masjid and breaking it down. The Chief Minister of the BJP government in the state, Kalyan Singh, had given an assurance to the Supreme Court that he would take full steps to prevent it. His assurance was belied. The Supreme Court by a majority just accepted his apology instead of sending him to jail for contempt of Court. 

However, this was nothing compared to the ominous conspiracy of the Congress Prime Minister Narasimha Rao, who suddenly became inaccessible to senior journalists, his home secretary and even his colleagues. 

I am also ashamed to admit the unworthy role of complicity of the judiciary. In spite of having given the injunction since 1949 against the entry of the public into the area, the judiciary did not proceed against the public. Even the higher judiciary did not intervene but rather turned a blind eye. This was the time when the magnitude of danger should have been appreciated by all parties but was not. The battle for secularism should have been combined with a singular determination of nipping the cancer of communalism. But nothing was done then. 

I had then made a public statement that; "Immediately, the Government should have announced December 6, as a 'National Repentance Day' when people would fast and pray for the unity and welfare of all the communities". But the non-BJP parties analysed the situation as merely one pertaining merely to law and order and thus acquiesced in this dastardly Act.

Whatever the past history, all the parties let the matter go to the Allahabad High Court to give a decision. The High Court has given a decision with which both parties are aggrieved. The BJP is still insisting that it would build a temple at the site where the Masjid undoubtedly stood for over 500 years. Muslims cannot obviously agree to a shameful compromise on the sanctity of the Masjid. The matter is already before the Supreme Court - it cannot run away from giving a decision which may not make everyone happy. Then it is their constitutional duty and it has no other alternative. I cannot foretell the Supreme Court decision. If past precedents are to prevail, then the case in favour of Muslims is invincible. 

I say this on the precedence of the Shahidganj Masjid case (Lahore now in Pakistan) decided by the Privy Council in 1940. The Supreme Court need not decide on merits whether Babri Masjid had been in existence where Ram Temple existed or not because that is of no consequence as it is not relevant to the decision of case. This is because even if was, there is no denying that Babri Masjid has been in existence since 500 years.

Now it is obvious to the meanest intelligence that it is impossible to prove that the birthplace of Lord Ram was under the masjid - it may be a matter of faith, genuine or contrived or otherwise, but that is no proof, nor can it ever be put forward as a legal ground to take away the land from the mosque. 

If the finding is that the masjid was not built on the birthplace of Ram, then the Muslims get the land back and will be free to use it in any way, including the building of the mosque. Alternatively, even if it is held that there was a temple on the land of the Babri Masjid, even with this finding the suit by the VHP/RSS has to be dismissed. Admittedly, Babri Masjid has been in existence for over 500 years until it was demolished by goons of the VHP/RSS in 1992. Legally speaking, even then the Sangh Parivar would have no right even if a temple had been demolished to build the Babri Masjid. I say this in view of the precedent of the case of Masjid Shahid Ganj in Lahore decided by the Privy Council in 1940. In that case there was admittedly a mosque existing since 1722 AD. But by 1762, the building came under Sikh rule and was used as a gurdwara. It was only in 1935 that a suit was filed claiming the building was a mosque and should be returned to the Muslims. 

The Privy Council, while observing that "their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely", went on to hold "The property now in question having been possessed by Sikhs adversely to the waqf and to all interests there under for more than 12 years, the right of the mutawali (caretaker) to possession for the purposes of the waqf came to an end under the Limitation Act". On the same parity of reasoning, even if a temple existed prior to the building of the masjid 500 years ago, the suit by the Hindu outfits like Nirmal Akhara VHP / BJP, etc. has to fail. 

There is another reason why in such a situation, the suit will fail because in common law, even a rightful heir, if he kills his ancestor, forfeits his right of inheritance. In the masjid case too there was a "murder most foul." Hence, the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the factual position may be. Of course, it is the privilege of the Chief Justice of India to constitute the bench. However, one may respectfully submit that it may be more reassuring if a bench of seven judges or nine judges was to hear the appeal.

*The writer is a former Chief Justice of the Delhi High Court.

 

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