Had the Masjid not been demolished, would the court have ordered a division and partitioning of the disputed site in the manner it has directed?

The absence of any condemnation of the vandalism of the demolition of the Babri Masjid on December 6, 1992 is a conspicuous aspect of the Ayodhya verdict of the Allahabad High Court.

The Supreme Court in its judgment of 1994 said of the demolition: “Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of ‘national shame.' What was demolished was not merely an ancient structure, but the faith of the minorities in the sense of justice and fairplay of the majority. It shook their faith in the rule of law and constitutional processes. A 500-year-old structure which was defenceless and whose safety was a sacred trust in the hands of the State government was demolished.”

The White Paper issued by the government on the demolition said: “The demolition of the Ram Janma Bhoomi-Babri Masjid structure at Ayodhya on 6.12.1992 was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and the rule of law enshrined in our Constitution. In a move as sudden as it was shameful, a few thousand people managed to outrage the sentiments of millions of Indians of all communities who have reacted to this incident with anguish and dismay.”

So great was the sense of outrage that the Prime Minister and the Central Government said on December 7, 1992 and December 27, 1992 that the mosque would be re-built.

The Ayodhya judgments of the Allahabad High Court make no note of the vandalism of December 6, 1992. On the other hand, they take the demolition as a fait accompli, as if the disputed 2.77-acre site was vacant land. After holding that the area beneath the central dome of the erstwhile Masjid must be allotted to Hindus because of their faith that Lord Ram's place of birth was there, and the areas covered by the Ram Chabutara and Sita Rasoi should be allotted to the Nirmohi Akhara, the court has said that the remaining area of the disputed site should be divided, two-thirds to the two Hindu plaintiffs and one-third to the Muslim plaintiff by metes and bounds. These judgments, therefore, legalise and legitimise the 1992 demolition, as the decree of the court proceeds on the basis that there is no Masjid on the disputed site today.

It is an elementary rule of justice in courts that when a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage, (as the demolition in 1992 did in favour of the Hindu plaintiffs), the court would first order the restitution of the pre-existing state of affairs.

If that is not possible, as in this present case, the court would not allow an act of lawlessness to benefit the party that indulged in it. This elementary rule of justice, the Allahabad High Court judgment ignores.

The test of the soundness of the court's verdict is this: assuming the correctness of the High Court's findings that the area beneath the central dome of the mosque was the birthplace of Lord Ram or that the Masjid was built over the ruins of a temple in 1528, if the Masjid had not been demolished and had remained on the site, would the court have ordered a division and partitioning of the disputed site in the manner it has directed? This could have been done only by the Masjid of 500 years being brought down to create a vacant site — which clearly would have been an impossible direction.

If that is not the case, can the court take advantage of the illegal act of demolition of the Masjid and order a division of the disputed site in the manner it has done?

The majority verdict of the High Court is well intentioned, meant to be a measure of compromise and national reconciliation. If it is accepted in that spirit by the Muslim community, it will resolve a burning communal problem of our nation. This is the consummation to be wished for. If this does not happen and the court's verdict has to be accepted, it will leave simmering resentment in the Muslim community, for it will see that as the court's condonation and legitimisation of a place of worship having been vandalised.

(The writer is a Senior Advocate and a former Solicitor-General of India.)

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