Kapil Sibal, Minister for Human Resource Development and lawyer, talks toKaran Thaparon the Ayodhya judgment. Excerpts from the interview, which was broadcast over CNBC TV 18 on October 5.
Although everyone agrees that there are no winners and losers, and this is a continuing process that will culminate in the Supreme Court eventually … there have been certain Muslim voices of concern …
In a judicial process you'll have verdicts of this nature, and ultimately, unless the verdict attains finality, I don't think one party should feel triumphant and the other party should feel despondent. Remember, many a time the trial court verdict is affirmed, or completely set aside. So we don't know what the Supreme Court is going to do. So for one party or the other to feel sad or despondent or feel triumphant I feel is completely inopportune and shows a lack of maturity.
All three judges have accepted that under the mosque is a Hindu temple. Two of them have accepted that that temple was specifically demolished. That seems to be based on a disputed and controversial ASI report …
First of all, many of us have not read the judgment, not analysed the evidence. For us therefore to say that the ASI report is right or wrong would not be appropriate ... Historians have made those statements, but in the ultimate analysis, the Supreme Court will definitely look ... remember, this is the first appeal. In normal circumstances, these matters are not decided by the High Court. But there was a special dispensation. The High Court was charged with the responsibility of doing so. So when it comes up in appeal, the Supreme Court is going to look at each issue of fact and law meticulously — especially of fact. Because if the facts like whether there was a temple underneath — one judge has said there was a non-Islamic structure, that is, a Hindu temple — what does that mean? Is every non-Islamic structure a Hindu temple or is it a Hindu temple? Whether it is a non-Islamic structure or not?
Is there a possibility that when both these issues — the Ramjanmabhoomi janmasthan issue of faith, and this issue of whether there is a temple underneath based upon a disputed ASI report — that in both these instances the Supreme Court may say “these are not issues the court will go into” and actually say “we refuse to adjudicate on them”?
Anything is a possibility. The Supreme Court may affirm the judgment, the Supreme Court may completely set aside the judgment, the Supreme Court may do something else. I don't know.
At least two of the judges have accepted the Ramjanmabhoomi itself as a deity. How do you respond to that?
Again, that's a very, very complex legal issue. Because remember, the Ram lalla was placed in 1949 in the sanctum sanctorum. Whether that act by itself translates this into a deity or not I don't know. So there again the Supreme Court will apply its mind and decide. But quite frankly, all these issues, as I said, are highly complex, highly charged, and therefore the Supreme Court will be very, very careful and meticulous in analysing the judgment and coming to a conclusion consistent with the Constitution and the laws.
The problem with the solution proposed by the High Court is [that] its decision is not the final decision, none of the parties will want to accept the High Court advice at this stage. They will all want to go to the Supreme Court in the hope they could do better?
I don't know. That's again prognosticating as to what the parties will do. But I would imagine that the parties aggrieved will go to the Supreme Court, the matters re-agitated in the Supreme Court and a decision taken. And remember, this particular judgment involves complex issues far beyond our conversation … For instance, the issue of possession. Who has possession of the site? And what date of possession are you talking about? What is the concept of possession in 17th century India or 16th century India when it all happened?... What are the prescriptive rights under the law of ownership in the 21st century? Do those prescriptive rights apply to 16th century India? What is the concept of ownership in the context of a place of worship?…
It's interesting you should raise this issue of ‘possession' because one of the grounds, if not the primary ground, which the High Court has come up with for this three-way split is the argument that at different points in time these three parties had possession. Does someone get possession just because you worship at a site?
Well, this is the issue. Supposing ... [you] go to a peepal tree and worship underneath. And some sadhu sits there under the peepal tree and thousands of people come and walk around it and worship. So who is in possession?
OK, so that sadhu cannot say “I possess the peepal tree because I worship under it.”
Oh yeah, who is in possession at that point? And what does possession mean? The essential element of possession is a right to egress and ingress — a right to enter, and not let someone to enter.
Is that not inherent when you worship at a particular site?
No, under the Indian Constitution you cannot prevent ... I can go to a gurdwara and pray in front of the Guru Granth Sahib. No one can prevent me.
So, even though you have the right to enter and leave, you do not have possession there just because you worship there.
I don't have possession. The gurdwara may actually own the land, in which case they possess it and they have ownership over it. But when you talk about the Babri Masjid or you talk about a temple or prayers in the 19th century, or the 15th-16th-17th century, what is the concept?
You said something fundamental ... what you're saying is that just because Party A or Party B happens to worship — perhaps for decades — at a particular site does not give that party possession of that site.
Right. Because these are two suits for title. Remember, title is based on two things: one, ownership which is a prescriptive right established under the law, and two, possession. Now you can say long-term possession entitles me and my community to pray here.
But you can't say… the fact that I've prayed here gives me possession?
Right. That's another issue. That'll be decided by the court. That applies to both communities. If there is a mosque there or there was a mosque there for a long period of time, somebody can say that till 1949 or till 1992 there was a mosque. Right?
So I've prayed there for a period of time, why should I not be entitled to pray there? Right? That's another issue that the Supreme Court will have to decide. And the Hindu community will say “No, but way back in the 19th century we were also praying here. So there is an established practice of our prayers.” So therefore, these are issues that the Supreme Court will have to decide on.
And the fundamental, key thing that you have just made clear for us is that the fact that you prayed somewhere for a long period of time does not give you possession.
It may give you the right to continue to pray there, but not possession. Maybe, maybe not ...
In going into that, the Supreme Court may either validate the three-way split or negate it ...
The court may say a number of things. The court may say “none of you have established your title”; the court may say “one of you has established your title”, as the court has said now. The court may say “two of you have established title.” I don't know what the court will say, but remember, these are title suits, which means you are claiming ownership. Ownership is a very complex judicial concept.
And what principles will be applied of ownership in the context of the fact that the mosque was built way back in the 16th century?
