Having read the ISC decision on Ayodhya, I feel it is a fair decision. I also find it one of the best written decisions I have read from the subcontinent.
Leaving communal biases aside, the main argument proffered against the decision has been that the court placed the onus of proving uninterrupted/exclusive possession on Muslims and not on Hindus. This argument is flawed.
Proof of possession issue
However, while the intentions may be good, the argument is flawed and reeks of naivete in matters of law. Very simply, the onus to prove possession was placed on plaintiffs (Sunni Waqf Board) because they had claimed the title through possession. For this, they had posed two main legal questions to the Bench – ‘adverse possession’ and ‘the doctrine of lost grant.’
So, my dear friend, based on these legal principles the Muslim parties claimed that even if there existed a Hindu temple on the disputed site, the Mosque was built by Babar over 400 years ago, and that Muslims have been enjoying possession over the land since. It was argued that such long, exclusive and continuous possession would extinguish the right, title and interest of the temple and of the Hindu public.
The judges noted that while the Sunni Waqf Board has stated that the mosque was constructed in the 16th century, there was no evidence of possession or use till the 19th century.
As per the Court, possession is said to be adverse if:
It is peaceful, open, and continuous
the character of the possession is adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse.
In the absence of these the plea of adverse possession was reduced to a subsidiary contention, if at all. If you have read, the judgment notes that the Muslim parties had argued this topic with “ambivalence”, which the Court puts down to the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of their holding the title to the land.
“The plaintiffs have failed to adopt a clear stand evidently because they are conscious of the fact that in pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the person or the entity against whom the plea of adverse possession has not been adequately set up in the pleadings and as noted above, has not been put-forth with any certitude in the course of the submissions.”
The court rightly held that, apart from stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, there was no evidence to back the claim of adverse possession. It was also highlighted no records are available with respect to possession for the period between 1528 and 1860.
The Court further refers to incidents that took place in 1856-7 and 1949, when communal riots between Hindus and Muslims and the placing of the idols in the Mosque took place. These incidents alone are evidence that the possession of the land by Muslims cannot be regarded as continuous.
Thus, the court rightly held, that this would not meet the standard required to prove adverse possession.
Furthermore, the plea of adverse possession set up by the plaintiffs in respect of the entirety of the area by dint of the clear evidence that Hindus had also set up a railing on a part of the site.
Now we come to the plea of the doctrine of lost grant. The only conclusive evidence for the doctrine to apply is that possession must be uninterrupted for a sufficient length of time. The Court, therefore, noted that in the absence of defined persons to whom the grant was made, there will be no presumption of lost grant.
The deciding factor
In this case, to establish the rights over the disputed land the court chose to establish a point of genesis, where one party’s claims over the disputed property were uncontested: to establish the first right and the first wrong.
The court said that there is enough Hindu and Muslim evidence that faith and belief of Hindus since prior to construction of mosque and subsequent thereto has always been that Janmasthan of Lord Ram is the place where Babri Mosque has been constructed. Muslims also endorsed this Hindu view being held since before the Babri Mosque’s construction.
Even though, the case of the plaintiffs is that the mosque was constructed in 1528 by or at the behest of Babur, there is no account by them of possession, use or offer of namaz in the mosque between the date of construction and 1856. For a period of over 325 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British, the Muslims have not adduced evidence to establish the exercise of possessory control over the disputed site. Nor is there any account in the evidence of the offering of namaz in the mosque, over this period; On the contrary, the travelogues (chiefly Tieffenthaler and Montgomery Martin) provide a detailed account both of the faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of the actual worship by the Hindus at the Janmasthan.
Therefore, there is enough evidence for the court to decide as it did even without taking into account solid archaeological evidence that the court chose not to consider.
Having said that, while overall satisfied, I do have a couple of misgivings about the judgment:
1. The court disregarded Places of Worship Act 1991.
It declared Ayodhya as an exception because it is a dispute that predates 1947. I think the view on this could have gone either way.
2. The court agreed to the belief that God exists at a particular place or in a particular material object.
It defeats my interpretation of secularism.
Silver Lining for the Plaintiff
On a different note, the Sunni Waqf Board must have the satisfaction that:
– The highest court has accepted their central argument that the Babri Masjid was a Sunni, and not Shia, waqf property,
– That the court has rejected the Hindu right’s narrative that Babri mosque was constructed after demolishing the Ram temple.
– That Muslim grievances about the trespass in 1949 and the tragic demolition of the mosque in 1992 have been accepted by the court. In fact, the court has accepted that there was an injury caused to them — i.e.
violation of their legal right. Accordingly, the court, invoking its extraordinary jurisdiction of doing complete justice, has given them almost double the land in Ayodhya.