Guest post by WARISHA FARASAT
I was a child when the Babri Masjid was desecrated. After the news of the demolition spread across Uttar Pradesh, we were huddled in buses and packed off home from our boarding school. We were happy that the school had announced the winter break earlier than usual. That apart, we didn’t think much of the episode. In fact, I think that we were oblivious, almost entirely, to the gravity of the incident.
Much later, when I read the Sri Krishna Committee Report on the Bombay riots of 1992-93, and about thousands who had lost their life in the aftermath of the demolition, memories of 1992 returned. I remembered whispers. I remembered the fear in the eyes of our teachers accompanying us home. I remembered the instructions to the bus driver not to stop the bus if we were mobbed. I remembered leaving school at three in the morning. And, I remembered being asked not to tell my real name if we were stopped.
Today, as I traverse through the mammoth Ayodhya judgment, I long for that sense of oblivion. Life was simpler then. I did not understand that I possessed equal rights as any other Indian citizen. So I could not be wronged. But law school changed that. It introduced me to the concept of the rule of law, minority rights, human rights, and secularism. I was taught that I had rights. Several. After the Ayodhya decision, though, I wonder if I must unlearn everything.
The High Court judgment on the Babri Masjid/Ram janambhoomi issue reads less like a court verdict, and more like a political manifesto. The copious 8,000-page verdict, which was pronounced by a three judge Lucknow Bench of the Allahabad High Court is marked by flawed legal reasoning and incoherence. While the Muslims claimed through the Sunni Waqf Board that the structure was a mosque built during Mughal Emperor Babar’s reign in 1528 A.D., the Ram Janam Bhoomi movement mobilized kar sevaks on the belief that Lord Rama was born there. In seeking to resolve the deeply contentious question of ownership of the Babri Masjid land in the town of Ayodhya, the High Court has exceeded its mandate.
Firstly in a title suit, the court is required to adjudicate upon the right, interest and title of the contesting parties in the property. In doing so, it may examine all the available evidence that is put forth by the parties. One of the most important stages of a title suit is that of framing of issues. With the assistance of the parties to the suit, the court finalises a set of questions that the judgment would eventually answer. Evidence is lead on the issues framed. Perusing through the Ayodhya judgment, it is clear: if you don’t ask the right questions, you will not get right answers.
If we examine the issues that were framed in the Ayodhya suit, we will understand the pitfalls in the High Court judgment. Consider this:
Have the Muslims been in possession of the property in suit from 1528 A.D. continuously, openly and to the knowledge of the defendants and Hindus in general? If so, its effect? (suit no. 4, issue 15). Or,
Whether the disputed structure claimed to be Babri Masjid was always used by the Muslims only regularly for offering Namaz ever since its alleged construction in 1528 A.D. to 22nd December 1949 as alleged by the defendants 4 and 5? (suit 5, issue 15)
Is it possible for any court to determine continuous possession of any immovable property by a party for almost five hundred years? The obvious answer is no. In framing thus, the court set too high a threshold to prove possession and title. Can one go back so far into history to prove title? Even in Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779, the title of the government over the property could only be ascertained by the courts for the last one hundred years and not beyond.
As you plough ahead, the issues get even more confusing: Whether demolition of the disputed structure as claimed by the plaintiff, it can still be called a mosque and if not whether the claim of the plaintiffs is liable to be dismissed as no longer maintainable? (suit no. 4, issue 25). Yet again, it’s a wrongly framed question. The court should be asking whether or not a mosque existed prior to the demolition, and not if it can still be called a mosque after demolition. Or, Whether Muslims can use the open site as mosque to offer prayer when structure which stood thereon has been demolished? (suit no. 4, issues 26)
Secondly, the court in reaching its verdict has put too much reliance on the report submitted by the Archeological Survey of India, despite repeated allegations of procedural lapses in conducting the excavations, and too little on the other crucial evidence that was adduced by the parties. While independent historians were summoned, the reasoning put forward by the court does not take into account these opinions. The court is well within its right to accept and reject opinions of independent experts. However, it should not appear that the court has reasoned backwards from a foregone conclusion on the issues framed.
Thirdly, the verdict has glazed over the fact that the site was the subject matter of legal disputes, previously, which were decided in favour of the Sunni Waqf Board. While I agree with the court’s interpretation that earlier rulings would not operate as res judicata since the parties to this particular title suit were different, nonetheless, findings on fact in those judgments would carry substantive evidentiary value.
And finally, the court has erred in transforming a title suit into a canvas for political compromise. It is ironical that even after filling thousands of pages, the fundamental question remains unanswered. Who owns that piece of land?
Legal merits of the verdict aside, perhaps, what troubled me most was the manner in which many of the so-called liberals hailed the judgment. I too am all for shared spaces and communal harmony. But I can’t be forced to forget. Criminal proceedings are pending against several persons who brought down the Babri structure and others who were involved in the rioting thereafter. The Sri Krishna Committee Report was an indictment of the right-wing chauvinistic political parties, most importantly, the Shiv Sena and its supremo Bal Thackeray in instigating communal violence. It also documented the deliberate acts of commission and omission on part of the police force, which contributed to the carnage. But, as is evidenced from Bal Thackeray’s vituperative statement in the Shiv Sena mouthpiece Saamna- “Mein adalat ke faislon par laghushanka karta hoon: I piss on the judgments of the courts”- the wheels of justice have barely turned.
As the Sri Krishna Commission report gathers dust, will we ever see justice in these cases? And if not, can I atleast remember history for what it was. That an existing structure, perhaps a mosque, was brought down in 1992 by a violent mob. The parties can agitate these issues afresh in an appeal before the Supreme Court. I can only hope that the Supreme Court shows some courage. After all I am only asking for my right not to forget.
(Warisha Farasat is a lawyer based in Delhi.)