The Chief Justice of India has suggested that he can act as a mediator in the pending Babari Masjid demolition case. The expression of concern is a little odd as it comes at the instance of an “inter-meddler”, and without the parties being present in Court. No wonder the suggestion on negotiations towards a muual settlement has caused a flutter in the political roost. In my opinion, the Babari Masjid demolition case is not a matter that can be settled through a compromise. This case has constitutional implications. The Constitution states clearly that India is a secular republic.
I was in Geneva attending the UN Human Rights Commission meeting when I was informed that the Babari Masjid had been demolished. On television, I watched the gory spectacle of BJP stormtroopers climbing up the walls of the Masjid and breaking it down. The party Chief Minister, Kalyan Singh’s assurance to the Supreme Court that he would take steps to prevent the demolition 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 a relatively minor issue 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 feel ashamed to admit the complicity of the judiciary, which despite the injunction since 1949 to bar people from entering the area did not proceed against the public. Even the higher judiciary did not intervene; rather, it seemed to ignore the trespass.
The magnitude of the danger should have been grasped by all parties. The battle for secularism should have been reflected in the determination to nip the canker of communalism in the bud. As it turned out, nothing was done.
At that point of time, I had made a public statement , saying that the Government should have announced December 6 as a ‘National Repentance Day’ when people will fast and pray for the unity and welfare of all communities”. But the non-BJP parties analysed the situation as merely a law and order problem and thus acquiesced in this dastardly action.
Whatever the history of the controversy, all parties let the matter be referred to Allahabad High Court. Both sides were aggrieved with its decision. The BJP is insisting that it will build a temple on the site where the Masjid undoubtedly stood for over 500 years. The Muslims cannot obviously agree to a shameful compromise on the sanctity of the Masjid. The matter is before the Supreme Court; it cannot avoid a decision which may not make everyone happy.  It is its constitutional duty and it has no other option.
Going by precedents, the case in favour of Muslims is invincible. I say this on the precedence of the Shahidganj Masjid case in Lahore. It was decided by the Privy Council in 1940. The Supreme Court need not decide on the merits of the argument whether Babari Masjid stood where the Ram Temple once existed. This is of no consequence as it is not relevant to the judiciary’s ultimate decision.
It is obvious to the meanest intelligence that it is impossible to prove that the birthplace of Lord Ram was beneath the Masjid . It may be a matter of faith, genuine or contrived, but that is no proof. Nor for that matter can it ever be cited as a legal ground to take away the land from the mosque.
If the finding is that the mosque was not built on Ram’s birthplace, then the Muslims can get the land back. They will be free to use it in any way, including the construction of the mosque.
Alternatively even if it is assumed that there was a temple on the land of Babari Masjid, the suit filed by the VHP/RSS has to be dismissed. Admittedly, Babari Masjid existed for over 500 years, till it was demolished by the activists of the VHP/RSS on 6 December 1992.  From the legal perspective, the Sangh Parivar would have no right even if a temple had been demolished to build the Babari Masjid. I say this in view of the precedent of the case of Shahidganj Masjid. There was a mosque dating back to 1722. But by 1762, the shrine 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 observed that “their Lordships have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship. However, they cannot under the Limitation Act accept the contention that such a building cannot be possessed adversely. The property now in question, having been possessed by Sikhs, was adversely given to the waqf and to all interests thereunder for more than 12 years. The right of the mutawali (caretaker) to take possession for the purposes of the waqf came to an end under the Limitation Act”.
On a parity of reasoning, even if a temple existed prior to the construction of the Masjid 500 years ago, the suit by the Hindu outfits like Nirmal Akhara VHP / BJP etc lacks basis.
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 killer 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.  With respect, I submit that it might be more reassuring if a Bench of seven or nine judges hears the appeal.

(The writer is retired Chief Justice, Delhi High Court)

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