SC rewarded the very violator it named in Ayodhya ruling: Faizan Mustafa

Senior jurist and Vice Chancellor of NALSAR University of Law believes no excavation would have been ordered and the apex court's verdict might have been different had the mosque not been razed

The Supreme Court gave its verdict in the long-running Ayodhya title dispute on November 9. In a unanimous verdict, a five-judge Constitution Bench of the apex court granted the ownership of the disputed 2.77-acre land in Ayodhya to a group representing the Hindus, marking another chapter in the centuries-old religious dispute that has been one of the country’s most politically sensitive issues. The court tried to balance the judgment by ordering the allotment of a 5-acre plot at a prominent location in Ayodhya to the Sunni Waqf Board for the construction of a mosque.

In order to understand various aspects, arguments and reasoning behind the landmark judgment, Business Standard spoke to senior jurist and the Vice Chancellor of NALSAR University of Law, Faizan Mustafa. Edited excerpts:

The Ayodhya dispute was a title suit over a contested piece of land in Ayodhya, Uttar Pradesh. In the verdict, the Supreme Court not only ruled in this title suit but also passed orders regarding the construction of a temple and formation of a trust. It also that ordered an alternate piece of land be allotted to the Muslim side. Such remedies were not sought, however. Did the court overreach in its verdict?

You can say so, as even Suit-1 of Gopal Singh Visharad (1950) has basically sought just the right to pray without any obstruction. He was arguing that due to the locking of the structure in 1949, his right had been violated. The Sunni Waqf Board (1961) did not seek title either, but mere possession so that they could resume their prayers in the mosque where idols were illegally put in 1949. Nirmohi Akhara’s 1959 suit sought management of the temple. Ram Lala Virajman was the late entrant to the suit and sought his recognition as a juridical person as well as title in 1989. Eventually, he won the case. Trust formation was done to give the government a vital say in the construction of the temple, anticipating a quarrel among Hindu parties as to the share in offerings. It will now help the government in getting the credit for construction of the Ram temple.

The court agrees that the installation of idols in 1949 was illegal. But the verdict does not provide remedy for such an illegal act. What is your view on that?

Yes, it admitted that it was an illegal act and that the mosque was desecrated. It also acknowledged that Muslims were deprived of their possession. Ideally the court should have considered it in granting relief. Denying possession of the entire land to this party and giving title to the other party cannot be called ‘complete justice’ or ‘fair’. The stature of court has not gone up in the eyes of independent experts.

The verdict also holds the 1992 demolition of the mosque illegal. A hypothetical question that emerges from this is what the court would have ordered had the mosque not been demolished. Can we say that this demolition actually gave an advantage to the Hindu parties instead of it being held against them?

Certainly. Had the mosque not been demolished, no excavation could have been ordered either. The court would not have ordered demolition. The aggressor and violator of law have been rewarded. The court has condoned their illegal act of demolition after criticising it.

You have earlier said that in this verdict the court has put faith above law. How does it square up with India's Constitution and what does it signify for the evolution of Indian jurisprudence?

Faith cannot be above the Constitution. The Constitution itself recognises freedom of religion subject to public order, health, morality and other fundamental rights. Thus freedom of religion is confined to what is an ‘essential or core beliefs’ of a religion. Here court did not seek any proof of birth of Lord Ram at the disputed site as an integral part of Hindu religion. The mere assertion of belief was considered sufficient. By not undertaking essentiality test that court has been following in the freedom of religion cases, the court went against its own judgments and favoured one particular party’s faith based argument. Moreover considering faith as part of one’s religious beliefs for Article 25 is one thing but taking it into account in a property dispute is an entirely different proposition.

The Supreme Court has also ordered the formation of a trust by the government for the construction of a temple in Ayodhya. In effect, the court has ordered the construction of a temple at the disputed site rather than just decide the title suit. What judicial doctrine is this and how does it square up with a secular constitution that involves separation of church and state?

The court was just trying to avoid future problems among Hindus. It does not violate the secular character as the trust will be independent of the government.

Indian secularism is said to be different from what some call European secularism. While the European or western notion of secularism involves a clear separation of the church and state, Indian secularism is different in practice. Here faith and state seem to have a compromise in place. Does this verdict push this embrace of church and state in one direction?

We were more secular without the word secular being there in the Constitution. In last three decades, religion has been used for political purposes. It is not good. Ideally the state should remain religion-neutral. All religions are to be treated equally. For some time, the impression has been that majority community’s religion and religious beliefs have a superior status and claim. Wherever a right-wing party is in power, this is bound to happen.

Neither the judgment, nor the addendum mention the names of the authors. Is this not a first in the history of Indian courts? What do you think could've led to such a situation and hasn't the Supreme Court set a precedent here for other benches or even High Courts to emulate?

This is not good. Judges should not fear anything and should own their judgments. I hope High Courts won’t follow it.

The reasoning in the judgment concedes to the Muslim parties that they have been wronged. Do you think the court has then proceeded to provide sufficient remedy for said wrongs?

Yes, they were wronged and that’s why restitution has been provided in the form of 5-acre land. But then, restitution means restoring parties to the original position. Ideally the court should have accepted their right to possession and then said that since structure is not there anymore, we are handing it to Hindu parties invoking powers under Article 142. Construction of the mosque within the disputed site as ordered by the High Court would have enhanced our reputation in the world as a secular country that believes in pluralism. We lost this opportunity. Even if the land had been given to Muslims, civil society and Muslim intellectuals would have persuaded Sunni Waqf Board to give up this land for the construction of a grand Ram temple.

The court has ordered the allotment of land to the Sunni Waqf Board at a prominent location in Ayodhya for the construction of a mosque. But this was not the plea. What could have prompted the court to provide such relief?

The court can pass any decree it deems fit. But it should have considered that it was hearing the case as first civil appeal. The court was conscious of the fact that what it is doing is not entirely right and therefore it tried to give something to the wronged party. 

The dispute concerned the inner courtyard but it was the continuous possession of the outer courtyard that seems to have tilted the balance in favour of the Hindu side. The Muslim side's access to the inner courtyard had been blocked due to the pending title suit. So, have they suffered due to legal proceedings in this matter?

This is the most problematic part of the judgment. You cannot treat this property as a composite whole and having done it, you cannot give it to just one party as Hindus were never, even according to the court, in the exclusive possession of inner courtyard. The distinction clearly helped one party.

Do you think the political environment in the country had an impact on the court's verdict?

I do not think so. Our judges are independent and do not get influenced by politics. At least this is the presumption. Of course, some recent court orders do give an indication that the court is not standing up to protect people’s civil liberties. But judges are human beings like us and do live in this very society. They were certainly aware of sentiments of the masses.

Does this verdict set a precedent for any such dispute in the future?

This is not a judgment under Article 141 of the Constitution that is binding on all courts throughout the territory of India. Even our embassies have said that it is not a precedent by which future courts would be bound. It is an order under Article 142 to do complete justice limited to this dispute.

Is the Places of Worship Act a deterrent to ensure that an Ayodhya-like situation is not repeated? Is there an effective deterrent at all, since fears have already been expressed about such disputes emerging in Varanasi and Mathura?

No, it is not an effective deterrent, though the court did say that this Act is in consonance with our secularism, which is the basic structure of the Constitution. Any government may repeal the Act and the court cannot prevent the Parliament from doing it. The extreme right wing has been making such voices. Ideally the government should come forward to say that we will strictly enforce this Act. It is an open secret that BJP was behind the Ayodhya movement. If it decides not to pursue other disputes for its political goals, it can certainly exercise its influence to prevent other such demands.

The Court seems to think it is ending the dispute - some sort of idea of Equity. What sort of trade-off was the court trying to do here? Has it worked?

Equity is to be deployed when the law does not exist. Here there was no need for it as the civil law exists. In any case, one who seeks equity must come with clean hands. In the exercise of equity you can give the title to a party that has committed a wrong. In fact had equity been properly implemented some land would have been given for mosque within the disputed site.