The suggestion of the Chief Justice of India to even act as a mediator in the pending Babri Masjid demolition case, showed his concern but it was a little odd considering that it came at the instance of an inter-meddler, and without the parties involved being before the Court— that is why it caused amongst the parties a certain concern. In my view, the Babri Masjid demolition case is not a matter for compromise. This case raises the deep concern regarding our Constitution which clearly says India is a secular republic.
I was in Geneva attending a UN Human Rights Commission meeting when I was told of the horrible news that came on TV that the Babri Masjid had been demolished and saw the gory spectacle of the BJP hoodlums climbing on to the Masjid and breaking it down. The BJP Government's Chief Minister Kalyan Singh's assurance to the Supreme Court, that he will take all steps to prevent it, was belied. The Supreme Court, by a majority, just accepted his apology instead of sending him to jail for contempt of court. But this was nothing compared to the ominous conspiracy of the Congress Prime Minister, Narasimha Rao, who suddenly became inaccessible to senior journalists, his Home Secretary and even his colleagues.
I am also ashamed to admit the unworthy role of complicity of the judiciary which, in spite of the injunction having given since 1949 against the public not to enter the area, did not proceed against those who perpetrated the act—even the higher judiciary did not intervene—rather turned a blind eye to it. This was the time when the magnitude of the danger should have been appreciated by all the parties but was not. The battle for secularism should have been joined with a singular determination of nipping in the bud the cancer of communalism. But nothing was done.
I then made a public statement observing: “Immediately the government should have announced December 6 as a ‘National Repentance Day' when the people will fast and pray for unity and welfare of all the communities.” But the non-BJP parties analysed the situation as merely one of law and order and thus acquiesced in this dastardly act.
Whatever the past history, all the parties let the matter go to the Allahabad High court to give a decision. The High Court has given a decision with which both parties are aggrieved. The BJP is still insisting that it would build a temple at the site where the Masjid undoubtedly stood for over 500 years. Muslims cannot obviously agree to a shameful compromise on the sanctity of the Masjid. The matter is already before the Supreme Court—it cannot run away from giving a decision which may not make everyone happy. But then it is its constitutional duty and it has no other alternative. I cannot foretell the Supreme Court decision. But if past precedents are to prevail, then the case in favour of the Muslims is invincible. I say this on the precedence of the Masjid Shahidganj case, Lahore, (now in Pakistan) decided by the Privy Council in 1940. The Supreme Court need not decide on merits whether the Babri Masjid had been in existence where the Ram Temple existed or not because that is of no consequence as it is not relevant to the decision of the case. This is because even if it was, there is no denying that the Babri Masjid has been in existence for 500 years.
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 Ram's birthplace, then the Muslims will get the land back and should be free to use it in any way, including the rebuilding of the mosque.
Alternatively even if it is held that there was a temple on the land of the Babri Masjid, even with this finding the suit by the VHP/RSS has to be dismissed. Admittedly, the Babri Masjid had been in existence for over 500 years till it was demolished by the goons of the VHP/RSS in 1992. Legally speaking, even then 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 Masjid Shahidganj 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 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 the Muslims.
The Privy Council, while observing that “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contention that such a building cannot be possessed adversely”, 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 (caretaker) to possession for the purposes of the waqf came to an end under the Limitation Act.” On the same parity of reasoning even if a temple existed prior to the building of the Masjid 500 years ago, the suit by the Hindu outfits like Nirmal Akhara/VHP/BJP etc. has to fail.
There is another reason why in such a situation the suit will fail: because in common law, even a rightful heir, if he kills his ancestor, forfeits his right of inheritance. In the Masjid case too there was a “murder most foul” and hence the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the factual position may be.
Of course it is the privilege of the Chief Justice of India to constitute the Bench. One may, however, respectfully submit that it would be more reassuring if a Bench of seven or nine judges was to hear the appeal.
The author, a retired Chief Justice of the Delhi High Court, was 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[at]vsnl.net / rsachar23 [at]bol.net.in