Tuesday, March 5, 2024

Babri: Supreme Court enforces, validates majoritarian politics

When I walked into Supreme Court on 9thNovember 2019, as a young Muslim lawyer to witness the judgment of Ramjanmbhoomi-Babri Masjid Case, I very well knew that the  judgement would be in favour of Hindu parties, but the factor that shocked me was the absence of a dissenting opinion in the judgment. The Ayodhya dispute could be seen from various perspectives, for a Supreme Court of India and any other lawyer, the Ayodhya dispute is purely a civil dispute pertaining to the 2.77 acres of land, for a Majoritarian Hindu party the Ayodhya dispute was to reclaim their ‘holy land’ and reconstruct their lost temple allegedly ‘destroyed’ by the Muslim ruler (Babur)  and for a Muslim like me, the case was about the human dignity and resistance against majoritarian politics, which had defined my existence as ‘other, invader, outsider’ in this country.

Many people overview this judgment as a historic success of Supreme Court to find a solution to the burning issue of Ramjanbhoomi- Babri Masjid land dispute, which has been convulsing Indian political framework for a very long time.  However, the Supreme Court judges intended to seek an end to this enduring dispute over the property, which ultimately was a question of faith for Muslim and Hindu Parties. The Supreme Court prioritized amicable solution rather than legally principled judgment to settle the land dispute over the Ramjanam Bhoomi.

Before addressing the legal flaws in the reasoning of the judgment, the Ayodhya verdict has an unprecedented importance in the constitutional history. The judgment would not be seen as a mere civil dispute, but as a one where the Supreme Court has validated and enforced majoritarian politics in India.  The judgment would be seen as a black judgment as same as A.D.M Jabalpur Case, except the fact that we don’t  even have a dissenting opinion like that of H.R Khanna dissenting opinion in the latter. [During emergency, the Supreme Court in A.D.M Jabalpur held that the President can suspend any fundamental rights including Right to life and liberty guaranteed under Article 21 of Constitution. Justice H.R Khanna wrote in his dissenting judgement “Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force, of the Constitution.”­][1]

This dissent opinion represents that the Supreme Court as an institution stand for the values of ‘Rule of Law’ ‘Liberty’ ‘Equality’ and ‘Justice’. However, the absence of a dissenting opinion strikes me the worst, after witnessing the judgment in Ayodhya dispute.

This judgment has far-fetching impact on our constitutional values of ‘liberty’ ‘equality’ ‘Justice’ and ‘secularism’ of our country. The founding fathersof our country envisaged and established a liberal constitutional order, with a commitment towards the principle of liberty, equality and justice. On these principles, the Indian Constitution established the Supreme Court of India and granted extra ordinary powers to protect the Constitutional values and principles. The Supreme Court of India is considered as one of the most powerful Supreme Court in the world, which has wide powers to review the executive and parliamentary decisions. But, the Ayodhya verdict had changed the fundamental character of Supreme Court.It had validated and enforced the majoritarian political order.

The Supreme Court’s Journey to Majoritarian Politics 

It is important to understand that, not all democracies guarantee fundamental rights and rule of law in the country. There are countries, which have democracies but deny fundamental rights to the minorities or doesn’t guarantee equal rights to every individual in the country. The democracy of Israel is one of the example, where you have an independent judiciary and recognition of basic human rights, but still the fundamental character of Israel as Zionist State influences the expression and reasoning of the Supreme Court of Israel ,when the interest of Majority comes into the legal conflict with other minority rights. Similarly, the Supreme Court of Sri Lanka also uphold many decisions in consonance with the majoritarian Buddha-Sinhalese community against the Tamilian Minority.  The Supreme Court of India had resisted itself from slipping into majoritarian forces and sustained as a strong counter-majoritarian function in protecting the minority rights against the majoritarian excess.

The 9-Judge bench of Supreme Cour in S.R Bommai v Union of India[2], while upholding the validity of Presidential proclamation and dismissal of BJP Government of Madhya Pradesh, Rajasthan and Himachal Pradesh, cited that the ‘secularism the basic feature of the constitution’. The Supreme Court after examining the facts such as (i) BJP Manifesto which declared that the party is committed to build Sri Ram Mandir at Janmasthan by relocating the Babri Masjid (ii) exhortation by the Ministers to people to join karseva in Ayodhya by these Government, were seen as sufficient reasons for President to suspend the State Government, since these state government were acting against the concept of secularism in the constitution.  On 9thNovember 2019, the same Supreme Court of India awarded the disputed property to the aggressor and mandated the Government to construct the temple over the ruins of the Babri Mosque.

The Supreme Court of India has failed to uphold its constitutional values, while rendering the verdict of Ayodhya. The failure on the prism to analyse the judgment through constitutional valuesis the result of the institution plunging into the majoritarian forces.  The judgment basically gave a ‘benefit of doubt’ to the Hindu worshippers over the disputed property of Babri Masjid, despite Muslim parties have conclusively proved that they were in possession of the inner courtyard of the Mosque, in contrary to the established century long civil jurisprudence related to the property law. 

India’s Journey to legally legitimize the majoritarian politics was complete after the pronouncement of Babri Masjid dispute. 

Strange Legal Reasoning on the Adverse Possession& Evidence of Grants given to Babri Masjid

The Supreme Court’s reasoning to grant the 2.77 acres to Hindu parties is fundamentally premised on two reasoning. (1)The Muslim party failed to prove adversary possession over the inner courtyard of Masjid. (2) ASI report conclude that there was an existence of a Hindu structure prior to Babri Masjid, although it didn’t conclude whether the Babri Masjid was built over the ruins of Ram Temple. The Supreme court’s legal reasoning was influenced with the principle of finding long lasting solution by bending justice before the majoritarian faith. More importantly, the Supreme Court refused to adduce the important facts to analyse whether the Muslim parties had possession over the property. 

Firstly, the Supreme Court’s legal reasoning considerably failed to prove the hostile possession over the inner courtyard of the property. Since, both the parties have claimed adverse possession of the inner courtyard. In normal civil laws, The Supreme Court was bound to assess whether any party had discharged the burden to prove the adverse possession on by preponderance of probabilities.  But, the Supreme Court in Ayodhya verdict, despite of claiming that the judgment was not based on faith, have given a benefit of doubt of possession of Hindu parties over the inner courtyard of Masjid. This reasoning is in complete contrary to established jurisprudence of common civil law. The Supreme Court placed an ironclad double burden of proof that (a) Muslim parties have to show that they were in possession of inner courtyard (Mosque) from period 1528-1857 (b) Muslim parties also must show that the Hindu devotees never prayed or entered the inner courtyard of mosque to conduct their rituals during 1528-1857. The Supreme Court’s reasoning is designed by default to give a benefit to the Hindu Party’s claim over the disputed property, than the Muslim party. However, the Supreme Court refused to consider the important facts which undisputedly prove that the Muslim parties had the exclusive possession over the mosque. 

  1. There were grants given by the Sovereign bodies for maintenance and preservation of Mosque. After the construction of Mosque, the Babur has also given grants to the mosque, and this process was continued by the Nawab. Since 1854, the British Government has given grants for the purpose of maintaining and preserving the Mosque. 
  2. Furthermore, the Babri Masjid was registered under Muslim Waqf Act 1936, after the Chief Commissioner conducted a survey and decided that the mosque was still in exclusive possession of Muslim parties
  3. The Hindu parties have never claimed the possession over the inner courtyard till 1989.  Prior to 1989, the Hindu party’s claim over the property was limited to the outer courtyard and this fact is evident from a private suit filed by Mahant Raghbar Das inFaizabad Court at 1885, where the relief sought by the party for constructing temple was limited to the outer courtyard of the mosque.

The Supreme Court’s refusal to properly consider these important facts have prejudiced the Muslim parties from clearly exhibiting the exclusive possession of the Mosque by the Muslim parties.

Secondly, the ASI Report has never conclusively proved that the Babri mosque was built over the destroyed ruins of the temple. TheSupreme Court of India, itself admits that the claim of the property would not be on the basis of ASI report. However, the Supreme Court drew the inference that ‘there is a possibility of Babri Masjid built over the ruins of the Ram Temple’. This validated the claims of Majoritarian politics that has castigated and demolished the Babri Masjid. At last, a separate addendum rendered by a single judge (undisclosed) of Supreme Court has concluded by stating that‘Janmasthan’ (Birth place) of Lord Rama is the place where the Babri Mosque has been constructed.  If a Constitutional judgment is deciding the facts on the basis of faith and mythical beliefs, then the path of transforming the most powerful court of the world into a majoritarian political tool is complete.

Thirdly, the Supreme Court invoking Article 142 (in complete contrary to its spirit and jurisprudence) to mould the relief claimed by the parties. The Supreme Court went to the extent of directing the Central Government to form a trust and make necessary measures for the construction of the temple. The judgment is contrary to the normal civil jurisprudence,  have not their judgement, by just deciding the dispute over the title of the property, but invoked Article 142 to mandate the Central Government to constitute a trust and formulate scheme for monitoring and construction of the temple. As, I have already mentioned the judgment would be regarded in the history as a day, ‘when the most powerful court bend its justice before the majoritarian politics’ .

When, I walked outside the Supreme Court, I saw the flags of Ram and chants of “Jai Shir Ram’ hailing over the Supreme Court. I looked around me, I can see people smiling and laughing and it include lawyers, journalist, VHP members, and urban middle class. Every person hailing, the grand victory of Ram against Rawan (Liberal Constitutional Order/ “Invader Muslims”), One person screamed “Mandir Wahi Banega and Mandir yahin be Bange” [Temple will be built there only, and Temple will be built here also (Inferring the Supreme Court of India). I told to myself. Alas, what left in my country?  

[1]ADMJabalpurv. Shivkant Shukla 1976 (2) SCC 521

[2]S. R.Bommai v. Union of India.S. R.Bommai v. Union of India([1994] 2 SCR 644

Adil Saifudheen is a young lawyer based in New Delhi

Adil Saifudheen
Adil Saifudheen
Adil is a young lawyer based in New Delhi. He was an award winning law graduate who participated in many national and international competitions including the 9th Nelson Mandela World Human Rights Moot Court Competition, Geneva.


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