The government, the Opposition and the public in general are rightly in panic awaiting the verdict on Babri Masjid by the Allahabad High Court – a situation brought about by the faltering non-secular stand by the governments concerned. The High Court is to give its verdict on the following points: (1) Was the place under Babri Majid the birthplace of Lord Ram? (2) Was there a temple on the land on which 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 will be free to use it in any way, including the building of the mosque.
In the alternative it may be held that there was a temple on the land of Babri Masjid. But even with this finding the suit by the VHP/RSS has to be dismissed. Admittedly, Babri Masjid has been in existence for over 400 years till it was demolished by 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 Babri Masjid.
I say this in view of the precedent of the case of 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 used as a gurdwara. It was only in 1935 that a suit was filed claiming 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 contentions 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 there under 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 400 years ago, the suit by the VHP 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 legal position maybe.
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 the Muslims to build a mosque by demolishing any other religious place. But even then if the 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 Babri Masjid.
Some well-intentioned persons come out with an apparently neutral suggestion of building a multi-religious complex on the site. To me this would be a surrender to the 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 against our Constitution, which mandates that all citizens — Hindus, Muslims and others — have equal rights and are equal before law.
A multi-religious complex or a multi-culture 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 necessarily, must 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 Babri Masjid must remain in the exclusive possession of the Muslims, who should be free to use it in any way the community decides.
I feel that the government should start doing an exercise of consultation and 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 would go away — the result is obvious.
Equally, I feel that leaders of all communities, political parties and social groups should start planning to meet the situation because the matter requires the involvement of people at the grassroots level and the matter 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 bitterest 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 writer is a former Chief Justice of the High Court of Delhi
