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Mainstream, Vol XLVIII, No 40, September 25, 2010

The Impending Ayodhya Verdict

Tuesday 28 September 2010, by Rajindar Sachar

Both the government and the Opposition and the public in general are rightly in panic awaiting the verdict on the Babri Masjid by the Allahabad High Court—a situation brought about by the faltering non-secular stand by all the concerned governments. The High Court is to give verdict on the following points:

1. Was the place under the Babri Majid the birth-place of Lord Ram?

2. Was there or not a temple on the land on which the Babri Masjid was built?
Now it is obvious to the meanest intelligence that it is impossible to prove that the birthplace of Lord Ram was under the Masjid—it may be a matter of faith, genuine or contrived or otherwise, but that is no proof, nor can it ever be put forward as a legal ground to take away the land from the mosque.

If the finding is that the Masjid was not built on a temple, then the Muslims get the land back and are free to use it in any way including the reconstruction of the mosque.

In the alternative it may be held that there was a temple on the land of the Babri mosque. But even with this finding the suit by the VHP/RSS has to be dismissed. Admittedly, the Babri Masjid has been in existence for over 400 years till it was demolished by the goons of the VHP/RSS in 1992. Legally speaking, the Sangh Parivar would have no right even if a temple had been demolished to build the Babri Masjid.

I say this in view of the precedent of the case of the Masjid Shahid Ganj in Lahore decided by the Privy Council in (1940). In that case there was admittedly a mosque existing since 1722 AD. But by 1762, the building came under Sikh rule and was being used as a Gurdwara. It was only in 1935 that a suit was filed claiming that the building was a mosque and should be returned to Muslims.

The Privy Council, while observing that “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and in violability to a place of worship”, said “they cannot under the Limitation Act accept the contention that such a building cannot be possessed adversely” and then went on to hold: “The property now in question having been possessed by Sikhs adversely to the Waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the Waqf came to an end under Limitation Act.”

On the same parity of reasoning even if a temple existed prior to the building of the Masjid 400 years ago, the suit by the VHP etc. has to fail.
There is another reason why in such a situation, the suit would fail: in common law, even a rightful heir, if he kills his ancestor, forfeits his right of inheritance. In the Masjid case too, there was ‘murder most foul’ and hence the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the legal position may be.

IT is true that sometimes some Muslim groups, in a spirit of large-heartedness and as a measure of mutual accommodation, suggest that if it was found that the Masjid was built on the site of a temple, they would not like to now build a mosque on the said site because the Koran forbids Muslims to build a mosque by demolishing any other religious place. But even then, if Muslims choose not to build a Masjid on this site, the ownership and use of the land remains with them. The Hindus cannot under any circumstances lay a claim to this site which was under the Babri Masjid.

Some well-intentioned persons come out with the apparently neutral suggestion of building a multi-religious complex on the site. To me this would be surrender to rabid Hindu communal sentiment—whatever explanation you may give, a Muslim then would feel a less equal citizen if even after he has won, he is asked to share this site with the goons who destroyed the holy mosque. This would be a defeat of secularism and go against our Constitution which mandates that all citizens, whether Hindus, Muslims, have equal rights and are equal before law.

A multi-religious complex or multi-cultural centre or a hospital can obviously be built by the joint free will efforts of both Hindus and Muslims. But such a complex, if it is to be built, must necessarily be on the land away and outside the Masjid complex, and that too only if the Muslims give their consent—obviously as the vacant land belongs to the Muslims. But under all circumstances, the site under the Babri Masjid must remain in the exclusive possession of the Muslims who will be free to use it in any way the community decides.

I feel that the government should start doing an exercise of consultation, preparation on these lines—to await helplessly trying to anticipate what the verdict would be is like a pigeon who on seeing a cat closes its eyes with the delusion that the cat will go away, and the result is obvious.

Equally I feel that leaders of all communities, political parties, social workers should start planning to meet the situation, because this matter requires the involvement of people at the grassroot level and it does not brook any delay.

The legal position is clear. It is only the weakness of political will that is responsible for the Ayodhya imbroglio to continue as one of the most bitter disputes within the country. By keeping the Ayodhya issue alive, the country has been kept away from addressing its most urgent task—how to meet the challenge of the growing pauperisation of the masses. And that includes both Hindus and Muslims.

The author, a retired Chief Justice of the Delhi High Court, is the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23@bol.net.in

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