Showing posts with label Law and Religion. Show all posts
Showing posts with label Law and Religion. Show all posts
Thursday, December 16, 2010
Idols in Law
The current issue of the Economic and Political Weekly carries a special section of articles on the Ayodhya judgment. Anupam Gupta, one of the counsel who appeared before the Lieberhan Commission, does a close reading of the suits to suggest that the decision stands on very flimsy legal grounds. Gautam Patel reviews the evidence to suggest that the judgment is politically expedient at the cost of judicial integrity. Historian Kumkum Roy makes a thoughtful argument about how questions of faith can be addressed through a legal discourse, and more importantly, how a person of faith (in her case a practising Hindu) should respond to the court's treatment of Hinduism. To this end, she draws on a survey she carried out amongst women about what Ram means to them. P.A Sebastian makes a fairly rehearsed argument that this is the most recent in a series of judgements by Indian courts undermining secularism. Historians Supriya Verma and Jaya Menon who were observers during the ASI excavation point out the flaws in the report noting many irregularities and outdated methods they observed. Verma and Menon focus on the perception of archeology as an exact science and the role played by the ASI in fostering the impression. They attribute the reluctance of archeologists to critique the ASI, to its complete monopoly over heritage management. "Any archaeologist in India or from outside who wants to explore or excavate sites has to obtain a licence from the ASI. So no field archaeologist is willing to speak out against it or its outdated methods." Yet, instead of being the expert of experts that the Allahabad High Court declared it to be they note "academically, the work that archaeologists of the ASI have produced has little standing within the social sciences in India and abroad."
Monday, October 25, 2010
Remembering Ismail Farooqi: A Reflection on Bannerjee and Yadav
In their recent incisive post, Bhupender Yadav and Vikramjit Bannerjee raise several questions about the use of colonial precedent and judicial faith which deserve reflection and further discussion.
1. As they establish, there is clearly long precedent from the colonial period of judicial intervention in cases of faith, but given what we know about the role of the colonial state in creating and fostering communal differences, is this good precedent? Scholars have demonstrated that the colonial administration of personal laws for instance was instrumental in the homogenizing of communal identities?
2. Colonial courts relied on religious texts to establish the ground rules of faith. They occasionally admitted oral evidence and evidence of practice, but I am yet to come across a case that use archeological and material evidence. The uses of texts is not unproblematic. Take for example, the Hedaya which emerges as the standard reference on Muslim law in colonial India, and is relied upon by authors as diverse as Fyzee and Paras Diwan. When the colonial courts began to administer
Islamic law in the late eighteenth century, they chose to rely on the al-Marghinani’s al Hedaya,a medieval manual of Hanafi law. Compared to other medieval
Hanafi fiqh texts, the Hedaya did not consistently provide the logic and
reasoning behind the rules of the school. Instead of relying on the original
Arabic text, the courts relied on Charles Hamilton’s English translation of a
Persian translation of the original Arabic version. This four-volume text itself was pared down in the 1870 edition in the interests of cost and utility, and the portions
“more interesting to the antiquarian . . . than useful to the practitioner” were expunged.
What are we then left with? It is this much pared down text that the Supreme Court relies on for instance in Muhammad Hanif Quereshi when it determines that cow slaughter is not an integral part of Islam.
3. The case is presented as a civil suit between faiths, or rather between a faith and a party i.e. the Wakf Board. If this is seen as a civil suit where one party is the Hindu faith, then the question of whether a single party can speak for the faith arises? If this is to be adjudicated as a dispute between faiths, surely the Court needs to implead other parties whose rights and beliefs are effected (those who believe in the two other Ram Jamnasthans in Ayodhya, those who believe that Ram is everywhere and not tied to one place, those who protest the idea of idol worship), and going by other civil suits where third party rights are affected, this would have required newspaper advertisements spelling out the rights and asking parties to step forward?
4. During the debates over the Shahbano judgment several commentators had pointed out, and I am in broad sympathy with them, that the protection of group rights must also provide for the protection of rights of individuals within a group. Does this faith based approach to a civil suit then take into account the rights of other Hindus? (those who believe in the sanctity of the two other Ramjamnasthans at Ayodhya, those who oppose idol worship, those who believe that it is an insult to Ram to fix him to a geographical area)
5. Bannerjee and Yadav, in both their posts emphasize (rightly so) that the court was in some ways limited to the grounds raised by the Sunni Wakf Board. However, what they do not point out, is that the Wakf Board itself was prevented from raising several other grounds due to the Ayodhya Land Acquisition Act and the Ismail Farooqui judgment.
While Justice Verma's pronouncements on the sanctity of Mosques has been quoted, it is perhaps important also to note the powerful dissent of Justice Bharucha (he was joined by Justice Ahmadi, the only other minority judge on the bench).
Justices Ahmadi and Bharucha struck down the Ayodhya Act of 1993 as unconstitutional citing in particular s. 4, whose effect was that " the Sunni Wakf Board, which administered the mosque that was housed in the disputed structure, and the Muslim community lose their right to plead adverse possession of the disputed site from 1528 until 1949, if not up-to-date, considering that the idols remained in the disputed structure only under the orders of the courts. " Thus, the only ground on which the Wakf Board could litigate was whether a previous Ram temple stood on the stop of the Mosque.
They held that this was unconstitutional as it 'offended the principle of secularism', which is a part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.
6. Bharucha and Ahmadi in a particularly scathing paragraph pointed out that it was clear that the government did not intend to be bound by the judicial decision (thus proving that it is the state that is alienated from the judiciary)and sought to use it only as a 'springboard for negotiations'. "It leaves us in no doubt that even
in the circumstance that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt."
7. I agree with Bannerjee and Yadav that the judgment is central in determining public faith in the courts. Justice Bharucha seems to have been prescient when he noted that the court of law was not competent to answer such a question.
"the Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court’s credibility." I note that the situtation before the Allahabad High Court was a little different, since both sides were allowed to read evidence but this does not appear to be the case with the ASI report which appears to be main evidence establishing the location of the prior temple. The historical evidence (and its use is questionable) merely establish that Ayodhya is the birthplace of Lord Ram (though it is doubtful whether the Ayodhya of the Traita Yuga, two cosmic cycles ago is the same location as the Ayodhya of now). What is actually contended is the exact location of the temple.
I close with Justice Bharucha's words
"Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it."
1. As they establish, there is clearly long precedent from the colonial period of judicial intervention in cases of faith, but given what we know about the role of the colonial state in creating and fostering communal differences, is this good precedent? Scholars have demonstrated that the colonial administration of personal laws for instance was instrumental in the homogenizing of communal identities?
2. Colonial courts relied on religious texts to establish the ground rules of faith. They occasionally admitted oral evidence and evidence of practice, but I am yet to come across a case that use archeological and material evidence. The uses of texts is not unproblematic. Take for example, the Hedaya which emerges as the standard reference on Muslim law in colonial India, and is relied upon by authors as diverse as Fyzee and Paras Diwan. When the colonial courts began to administer
Islamic law in the late eighteenth century, they chose to rely on the al-Marghinani’s al Hedaya,a medieval manual of Hanafi law. Compared to other medieval
Hanafi fiqh texts, the Hedaya did not consistently provide the logic and
reasoning behind the rules of the school. Instead of relying on the original
Arabic text, the courts relied on Charles Hamilton’s English translation of a
Persian translation of the original Arabic version. This four-volume text itself was pared down in the 1870 edition in the interests of cost and utility, and the portions
“more interesting to the antiquarian . . . than useful to the practitioner” were expunged.
What are we then left with? It is this much pared down text that the Supreme Court relies on for instance in Muhammad Hanif Quereshi when it determines that cow slaughter is not an integral part of Islam.
3. The case is presented as a civil suit between faiths, or rather between a faith and a party i.e. the Wakf Board. If this is seen as a civil suit where one party is the Hindu faith, then the question of whether a single party can speak for the faith arises? If this is to be adjudicated as a dispute between faiths, surely the Court needs to implead other parties whose rights and beliefs are effected (those who believe in the two other Ram Jamnasthans in Ayodhya, those who believe that Ram is everywhere and not tied to one place, those who protest the idea of idol worship), and going by other civil suits where third party rights are affected, this would have required newspaper advertisements spelling out the rights and asking parties to step forward?
4. During the debates over the Shahbano judgment several commentators had pointed out, and I am in broad sympathy with them, that the protection of group rights must also provide for the protection of rights of individuals within a group. Does this faith based approach to a civil suit then take into account the rights of other Hindus? (those who believe in the sanctity of the two other Ramjamnasthans at Ayodhya, those who oppose idol worship, those who believe that it is an insult to Ram to fix him to a geographical area)
5. Bannerjee and Yadav, in both their posts emphasize (rightly so) that the court was in some ways limited to the grounds raised by the Sunni Wakf Board. However, what they do not point out, is that the Wakf Board itself was prevented from raising several other grounds due to the Ayodhya Land Acquisition Act and the Ismail Farooqui judgment.
While Justice Verma's pronouncements on the sanctity of Mosques has been quoted, it is perhaps important also to note the powerful dissent of Justice Bharucha (he was joined by Justice Ahmadi, the only other minority judge on the bench).
Justices Ahmadi and Bharucha struck down the Ayodhya Act of 1993 as unconstitutional citing in particular s. 4, whose effect was that " the Sunni Wakf Board, which administered the mosque that was housed in the disputed structure, and the Muslim community lose their right to plead adverse possession of the disputed site from 1528 until 1949, if not up-to-date, considering that the idols remained in the disputed structure only under the orders of the courts. " Thus, the only ground on which the Wakf Board could litigate was whether a previous Ram temple stood on the stop of the Mosque.
They held that this was unconstitutional as it 'offended the principle of secularism', which is a part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.
6. Bharucha and Ahmadi in a particularly scathing paragraph pointed out that it was clear that the government did not intend to be bound by the judicial decision (thus proving that it is the state that is alienated from the judiciary)and sought to use it only as a 'springboard for negotiations'. "It leaves us in no doubt that even
in the circumstance that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt."
7. I agree with Bannerjee and Yadav that the judgment is central in determining public faith in the courts. Justice Bharucha seems to have been prescient when he noted that the court of law was not competent to answer such a question.
"the Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court’s credibility." I note that the situtation before the Allahabad High Court was a little different, since both sides were allowed to read evidence but this does not appear to be the case with the ASI report which appears to be main evidence establishing the location of the prior temple. The historical evidence (and its use is questionable) merely establish that Ayodhya is the birthplace of Lord Ram (though it is doubtful whether the Ayodhya of the Traita Yuga, two cosmic cycles ago is the same location as the Ayodhya of now). What is actually contended is the exact location of the temple.
I close with Justice Bharucha's words
"Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it."
Guest Post: Faith in a Civil Suit and the Fundamental right to religion
Rohit De's recent posts have drawn attention to various aspects of British colonial interventions into the legal domain in colonial India. This guest post points out the contemporary significance of British colonial interventions in the sphere of religion, by focusing on the implications of a continuous line of case-law dating from the colonial era for the issues in the recent judgment of the Allahabad High Court in the Ayodhya case.
In their previous guest post, Bhupender Yadav and Vikramjit Bannerjee, the lawyers for Sri Ram Lalla Virajman and some other Hindu parties in the Ayodhya case, drew attention to the pleadings and the issues framed in the suits before the Allahabad High Court. In this follow up post, they seek to make good their claim by relying on case-law that they assert dates back to the colonial era:
............................................................................
There have been discussions especially by venerable academics and media commentators that faith has no place in civil litigation. The question is, is this true? To answer that question, it is important to note that the Courts have, at least from the time of the Company Raj, dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs. Therefore post the Great Revolution of 1857 (which was substantially attributed to religious resentment), the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur. Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth, which included the following amongst other policy statements:
“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”
The British Courts thereafter came up with a very nuanced manner of dealing with religious belief, holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system, which is genuinely held. The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. (Syed Asrar Ahmed v. Dargah Committee, Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai). After independence that has been the view of the Supreme Court as well. Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions.
In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem, the Court held:
“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”
The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all, it can only go into the fact as to whether such a belief is genuinely and conscientiously held, that is all.
In order to consider as to what constitutes “essential or integral part” of a certain religion, the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda).
Coming back to the present case, the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case) famously held:
“ While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”
The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities
Now, the fact that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits, the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233:
“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties.
The statement is quoted below:-
“For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever…………..””
The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.
The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam. In fact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.
Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma). Therefore, in the present case, the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion.
The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:
“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, "Sri Ram Janamsthan", and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.
4560. Though the prayer in the suit is worded in the different manner but for complete justice and to avoid multiplicity of litigation as also the adjudication which may settled centuries old dispute finally, we are of the view that we can mould the wordings of the reliefs and can pass an order in respect to respective parties in this case which as suuch may not be covered by the form of relief but is within the scope of the case. In this regard we can rely on the provision under Order VII Rule 7 CPC.”
In our view, whatever be the legal merits of the trifurcation of the land (and there are serious legal objections to that), it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.
In their previous guest post, Bhupender Yadav and Vikramjit Bannerjee, the lawyers for Sri Ram Lalla Virajman and some other Hindu parties in the Ayodhya case, drew attention to the pleadings and the issues framed in the suits before the Allahabad High Court. In this follow up post, they seek to make good their claim by relying on case-law that they assert dates back to the colonial era:
............................................................................
There have been discussions especially by venerable academics and media commentators that faith has no place in civil litigation. The question is, is this true? To answer that question, it is important to note that the Courts have, at least from the time of the Company Raj, dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs. Therefore post the Great Revolution of 1857 (which was substantially attributed to religious resentment), the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur. Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth, which included the following amongst other policy statements:
“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”
The British Courts thereafter came up with a very nuanced manner of dealing with religious belief, holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system, which is genuinely held. The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. (Syed Asrar Ahmed v. Dargah Committee, Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai). After independence that has been the view of the Supreme Court as well. Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions.
In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem, the Court held:
“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”
The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all, it can only go into the fact as to whether such a belief is genuinely and conscientiously held, that is all.
In order to consider as to what constitutes “essential or integral part” of a certain religion, the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda).
Coming back to the present case, the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case) famously held:
“ While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”
The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities
Now, the fact that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits, the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233:
“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties.
The statement is quoted below:-
“For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever…………..””
The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.
The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam. In fact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.
Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma). Therefore, in the present case, the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion.
The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:
“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, "Sri Ram Janamsthan", and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.
4560. Though the prayer in the suit is worded in the different manner but for complete justice and to avoid multiplicity of litigation as also the adjudication which may settled centuries old dispute finally, we are of the view that we can mould the wordings of the reliefs and can pass an order in respect to respective parties in this case which as suuch may not be covered by the form of relief but is within the scope of the case. In this regard we can rely on the provision under Order VII Rule 7 CPC.”
In our view, whatever be the legal merits of the trifurcation of the land (and there are serious legal objections to that), it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.
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