The much-awaited verdict revolves around several schools of thought – some entirely in favour of the judgment while others are in disagreement citing several reasons and questions therein. Lex Witness invited Prof. M. Sridhar Acharyulu, Former Chief Information Commissioner to voice his opinion on the Ayodhya matter. Have an interesting read through.
‘Ayodhya’ (Sanskrit) means ‘invincible’. Maryada Purushottam (Sanskrit) Ram means ‘ultimate epitome of righteousness in human form’.
Valmiki says: Ram was prevented from taking the crown of Ayodhya, by Kaikeyi; Ram refused to take kingdom though its lawful-holder-brother Bharath offered it with consent of his mother Kaikeyi; The demand of exile to Ram for 14 years is to strike with Law of Limitation to deny Ram his remedy to reclaim; (Limitation period to reclaim property occupied by others was 14 in Tretayug 13 in Dwaparyug and 12 in Kaliyug). SC rejected the claim of Shias as barred by limitation, while limitation plea was rejected to allow the plaint of Nirmohi Akhara; If Bharath & Kaikeyi are today’s TV serial characters, they would have won the litigation and Ram lost Ayodhya again. (Interestingly, Duryodhan was arguing that Pandav brothers lost their remedy as they slept over this right 13 years in forests even as he enjoyed kingdom won in a dice game).
According to Valmiki’s Ramayan, Ram has sacrificed Singhasan (throne) and left for exile along with Sita; At a later point, he ‘sacrificed’ Sita to be above suspicion as a King. If he is present this time, he might have preferred to live in forests instead of begging the Supreme Court for Masjid land for his residence in Janmasthan.
There is no evidence to explain how the kingdom changed hands from the descendants of Ram to others.
It is an interesting legal fiction – that Ram Lalla is a judicial person and he has a civil right to fight for his Janmasthan. To that extent, it is held to be not a religious or historical issue, which courts cannot decide. The Supreme Court bench did not agree with Allahabad High Court which held that Janmasthan itself was a juristic person. In a way, it is good. If not Janmasthan and Ram Lalla would have been litigating for 2.77 acres of land. It is to be noted that Janmasthan and Deity Ram Lalla were claiming the entire land while Nirmohi Akhada raised a conflicting claim that entire land belonged to it as manager, trustee, and worshipper. Similarly, Shias and Sunnis filed rival suits. Suit by Shias was rejected as time-barred while Janmasthan was not recognized as a judicial person. In their anxiety to do complete justice, the Bench denied title to all these parties and ordered Centre, who was not a party before it, to create a trust and construct a temple, which was never prayed by any party at any time. Thus, the manifesto of BJP is being realized.
Being recognized as a judicial person Ram Lalla is the plaintiff and hence, he has the burden to establish that He was granted rights by all the sovereign kings that ruled India since 1525. The Bench, said the facts pertaining to the present case fall within four distinct legal regimes: (i) The Kingdoms prior to 1525 during which the ―ancient underlying structure dating back to the twelfth century is stated to have been; (ii) The Mughal rule between 1525 and 1856 during which the mosque was constructed at the disputed site; (iii) The period between 1856 and 1947 during which the disputed property came under colonial rule; and (iv) The period after 1947 until the present day in independent India. (Para 634)
Ram Lalla’s title over His Janma Bhumi does not totally depend upon the efficiency of His lawyers and proper understanding of the Supreme Court Judges but on the irrefutable evidence. Infant Ram must prove his title over Temple built in Janma Bhumi in twelfth Century according to 19th Century Evidence Act as per Code of Civil Procedure, 1973 and according to principles of the Constitution of India adopted in 1950. Imagine the difficulties of that just-born baby. He must prove on which bed, room, palace, area, city, etc he was born to Kausalya and Dasaratha exactly. Ram had only one evidence – Archaeology Report on its excavations.
Disputes over Ayodhya are rooted in religious beliefs and spread over several sovereign regimes since the twelfth century. All through these times sovereigns belonging to Hindus and Muslims were promoting their respective religions. Mughal kings imposing a Masjid in Ayodhya is thus a controversy between two sovereign regimes, which cannot be decided under the present law. Construction of Masjid in Ayodhya was an act of state i.e., a sovereign act over another state. Supreme Court extensively covered this aspect in Paragraphs 636 to 646.
In Secretary of State Council in India v. Kamachee Boye Sahaba, (1857-60) 7 Moo IA (476) a suit was brought before the Supreme Court of Madras by the eldest widow of the erstwhile Raja with respect to the private property of the former ruler. Privy Council accepted the contention that the seizure of Raja‘s property was an ―act of State on behalf of the colonial government as the new sovereign. The lapse of the Raj and the subsequent seizure involved only the Raja and the colonial government – two sovereign powers, and consequently, the municipal court had no jurisdiction to entertain the matter. Lord Atkinson confirmed this rule in another case Secretary of State of India in Council v. Bai Rajbai, ILR (1915) 39 Bom 625 in which cession of the territory of Ahmedabad by Gaekwars to the colonial government was held to be an act of State between two sovereigns. The principles enunciated by Lord Atkinson have been adopted by the Supreme Court after Independence. Supreme Court was called upon to determine whether such rights were enforceable after the change of sovereignty from the princely rulers to the Republic of India. (see Para 642)
In Promod Chandra Deb v. State of Orissa 1962 Supp (1) SCR 405, then SC bench said: “The Municipal Courts ..have .. jurisdiction to .. ascertain only such rights recognised by new sovereign by legislation, agreement or otherwise. …In any controversy as to the existence of the rights claimed against the new sovereign, the burden of proof lies on him. (Para 643) Counsel for Ram, Mr. Vaidyanathan contended that the existence of an ancient Hindu temple below the disputed property was evidence that title to the disputed land vested in Ram Lalla, the plaintiff in Suit 5, which was inalienable and continues to be legally enforceable today. Except for the ASI report, no evidence was produced to establish that upon the change in legal regime to the Mughal sovereign, such rights were recognised. (Para 647, 648) The bench said it cannot entertain or enforce rights to the disputed property based solely on the existence of an underlying temple dating to the twelfth century (Para 649).
BLURB 4 – In a secular democracy, the state should be at equal distance from the religions, without any preferences. The State should keep itself away from any religion. The Bench ordered State to constitute a trust for construction of the temple in the disputed area of 2.77 acres.
The next change in regime occurred on 13 February 1856, when Oudh (Ayodhya) was annexed by East India Company, later came under the British Government. Lord Canning proclaimed on 15 March 1858 disputed part as Nazul (Confiscated) land. A railing was raised in that premises in the same year to separate quarreling Hindus and Muslims. Hindus went on claiming that they were excluded from the inner courtyard. British Government opened another door in 1877 to Hindus to manage.
(para 650) The bench also said that Article372 ensures the legal continuity between British sovereign and Republic India, while Article 296 says all the properties vested in His Majesty earlier will vest in a State or Union according to the situation of such property. It cannot be said that upon independence, all pre-existing private claims between citizens inter se were extinguished and they can be enforced by Supreme Court today.
The Supreme Court said it cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. (Para 672) It said: “…. the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of rights and liabilities on the basis of our ideology, our religion, the colour of our skin, or the century when our ancestors arrived at these lands and submitted to the rule of law”.
The Bench said that ‘the acts of the parties subsequent to the annexation of Oudh in 1856 form the continued basis of the legal rights of the parties in the present suits and it is these acts that Supreme Court must evaluate to decide the present dispute”. But it went forward and decided to consider private rights of Ram Lalla, and others over possession and title of disputed land, and it has also finally adjudicated the issues arising out of Act of State.
In paragraph 795 the Bench brought out profoundly the salient values of the Constitution as follows:
Ayodhya is a battle-field of politically ambitious warriors including present-day politicians. Instead of resolving, they complicated. Here, places of worship will fall, alter and rise. Independent India addressed the issue of Somnath temple, which was repeatedly destroyed by Muslim invaders, and rebuilt by Hindus. The Government should have respected the religious sentiments of the majority of people in all similar conflicts. Successive political governments at Centre and UP have allowed the disputes and conflicts to reach the Judiciary while continuously milking the benefits for electoral politics.
The real issue that complicated the Ayodhya conflict is that the judiciary was asked to perform the Executive function of resolving the religious conflict resulting from an act of state -by invading conquerors. During Mughal rule, the general administration of justice administration was merged in apex authority, i.e., the Sultan in Durbar. When Sultan himself ordered the demolition of temples, to build mosques over them, there was little scope for suppressed subjects to seek rights to worship or other rights to temple. What courts can do when an invader occupied the country and trespassed into temples to desecrate, dispossess and destroy them and subsequent rulers are dishonest in addressing the people’s issues.
Ayodhya crisis is a hybrid product of abdication of responsibility by the political rulers, undue and ambitious fanaticism of both religious groups and inordinate delay of justice dispensation. The apprehensions and fear that this crisis created are evident in the fact of necessity to secure the residences of judges including that of CJI, the arrest of some persons, prohibitory orders all over the nation and last, not the least, not declaring the name of the author of the unanimous judgment of apex court.
The ASI has conducted excavations as per orders of High Court and found hundreds of pillars with Hindu sculpture and gave a report, which was objected, obstructed, rejected or partly accepted by advocates and judges at High Court and Supreme Court. The ASI is a group of specially trained professionals, better placed to decipher the excavated things. The archaeological evidence is damn clear that a magnificent temple structure was exactly below the Babri Masjid in Ayodhya. The report was lying for years with the Government, which did nothing, on an excuse of pending litigation. The Bench did not weigh this report totally and called it a piece of incomplete evidence.
The bench held the acts of desecration of Babri Masjid by surreptitiously installing Ram Lalla on 22/23 of December 1949, dispossession of Muslims on 29th December 1949 and destruction of Babri Masjid on 6th December 1992 was illegal. The accused karsevaks led by the BJP veterans like Advani are still being tried for illegal demolition of a protected monument. Undoubtedly both -destruction of the temple by invader and demolition of mosque by inside political leaders are illegal besides being criminal acts as rightly stated by the apex court in their unanimous decision dated 9th November 2019. If so, can we find similarity between Muslim invaders and Hindu politicians who led the innocent and emotional people to destroy places of worship? How could these criminal acts get sanctified and constitutionalised besides leading to gain title over occupied land?
The indecisive Governments allowed the Hindus and Muslims to fight, separate, polarize but remain their vote banks. Because of the support -both physical and financial, the communal groups on either side were adamant to resolve the dispute in a consensual and harmonious manner, an example of vested interest in communal strife. The political leaders should take the blame totally.
The judicial forum should not have been used to get a seal of approval for political manifestos, which cannot answer the questions of Constitutional and Democratic Morality and Rule of Law issues. Manifestos are not justice documents; they are manifest offers in return to power in immature democracy. The courts should have been spared of the Ayodhya burden.
Whether the Constitution of India is regarded as the true religion of democracy? Are Governments devoted to the values prescribed in our Constitution? Are we making strict separation of powers between Executive and Judiciary, as the ultimate value?
Another question asked was, whether this order could have been passed, had there been Babri Masjid existing now? Will it be ‘complete constitutional justice’ to remove it and resurrect the temple from debris? Does it not mean a new path is laid to repeat the exploitation of religion for political gains? The five-judge-bench fondly hoped that this complete justice will put an end to communal conflicts. Most of the people from different quarters appreciated the apex court with this hope only. Are we not hearing rising voices demanding similarly for Varanasi, Mathura, Qutub Minar, and Tajmahal? Have we closed the causes for communal strife or fuelling it? It is unfortunate that political executive is gunning down the constitutional values from the shoulders of forts of law, if not courts of justice.
The Constitution of India does not allow the state to favour ‘faith’ but it also does not also allow the governments to ignore the heartburning of the communities over the destruction of their religious places, which are constant sources of communal strife that further divide the nation. Fraternity is the supreme goal recited in Preamble which we never tried to achieve. Ambedkar said we cannot call ourselves a nation without achieving fraternity. That is real nationalism. It is unfortunate that Indian politicians too have vested interests in continuing communal strife as British was, and thus left it with inaction or actions that serve their political interests, while several persons were knocking doors of justice from subordinate civil court to the apex court. Mandir-Masjid continues to be the root cause of the criminal play of communal elements in streets, ballots and New Delhi, unfortunately.
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