POLITICS
09/11/2019 4:36 PM IST | Updated 10/11/2019 11:39 AM IST

Ayodhya Explained: Supreme Court Chose Faith Over Law, Jurist Faizan Mustafa Says

Faizan Mustafa, a law professor and Vice Chancellor of Nalsar University of Law, Hyderabad, says the Supreme Court seems to have weighed religious belief over the rule of law.

In the Ram Janmabhoomi-Babri Masjid title suit, the Supreme Court seems to have weighed religious beliefs of a section over the rule-of-law, observed Faizan Mustafa, a senior law professor and jurist of constitutional law.

Speaking to HuffPost India shortly after the judgment was pronounced, Mustafa, who is also the Vice Chancellor of Nalsar University of Law-Hyderabad, said, “It can be said that the ruling in favour of Ram Lalla was passed on the basis of an inconclusive ASI report”. The court indulged in “reparation” when it ruled to allot five acres of land to the Muslim parties, which is almost double the size of the original disputed land, Mustafa observed. 

However, “The judgment upholds a majoritarian point of view”, Mustafa said.   

How do you evaluate the judgment? On what was the judgment based?  

Based on the operative parts of the judgment, it looks like the Supreme Court gave importance to belief over other concerns. The court, even while observing that faith is limited to individual believer and that it cannot determine a land dispute, eventually gave the disputed land for the construction of a Hindu temple. This means that belief of a section of people was given prominence over the rule of law even though the latter should have ideally determined a property dispute.   

The judgment is fair in terms of religious freedom. When a party asserts freedom of religion, the court cannot enter into the debate on whether faith is rational or irrational, justified or unjustified. However, when it comes to the property dispute, the court seems to have weighed religious belief over the rule of law.  The court while pronouncing the judgment did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.  

The court seems to have weighed religious belief over the rule of law.

Are you saying what was essentially a property dispute got settled on the basis of faith or belief? 

It seems like faith was given prominence. 

On one hand, the Court has accepted that the ASI report (2003) does not prove that a temple, particularly a Ram temple was demolished to construct the Babri Masjid. This was a question which Allahabad High Court had asked ASI in 2010. The Supreme Court bench observed on Saturday that the report only suggests that the disputed land was not vacant during the time of construction of the mosque. The ASI report does not conclusively determine what lay beneath the land’s surface even though it points to debris of some construction underneath the mosque. Even if there was a Hindu structure under the surface, the ASI report has not proved that the structure belonged to Lord Ram. 

On the other hand, the Court removed Nirmohi Akhara from the litigation stating that the Akhara does not have the right be in the title suit even though they were the first party to start litigation. They have been fighting the case for over 100 years. With the Akhara removed, amongst the three parties (Akhara, Ram Lalla and Sunni Waqf Board) Lord Ram (Ram Lalla) became the party to get the land even though this party entered the litigation only in 1989. 

It can be said that the ruling in favour of Ram Lalla was passed on the basis of an inconclusive ASI report because the Court had simultaneously admitted that the report does not conclusively state that a Ram temple existed under the Babri Masjid. Based on these observations of the court it seems, religious belief was given prominence.   

The court denied ‘juristic personality’ to Ram Janmabhoomi and accorded it to Ram Lalla. What does this operative party of the judgment, which seems to have led the judgment in the direction it took, mean? 

The court has accepted the Muslim party’s argument here. The Muslim party was arguing that the idol (of Ram) maybe a juristic personality but not the land. The Hindu party was arguing that the land itself was a juristic personality which the court has rejected. Juristic personality is the right to sue and be sued which gives you the right to own the property. 

Here it should be noted that, while there can be no dispute with the findings of the court which declares the idol as a juristic personality, the law of limitations has not been applied to this juristic personality. (As per law of limitations, a party can enter a legal dispute only within a specific period of time after the litigation begins. As per this law, “every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed”)   

Ram Lalla entered the litigation in 1989. Before 1989 it was never contested that Lord Ram was born under the central dome of the masjid. So, since the litigation was continuing from 1950 and since the juristic person Ram never made a claim over the disputed site before 1989, the law of limitations should apply to Ram Lalla. This, especially since the first litigation in 1950 was not about the whole of the disputed site but only about the outer courtyard. 

Meaning, the juristic personality Ram should not have ideally had the right to litigate and claim ownership of the entire 2.77 acres of the property in the first place.  

 

What is the takeaway for the Muslim side in the SC judgment on the Ayodhya dispute? 

The consolation for the Muslim parties is that the Supreme Court has upheld many of their major assertions. The Muslim parties have been maintaining that no Ram temple was demolished to construct Babri Mosque and the court has upheld this. The court has accepted that the act of placing idols in the mosque which took place in 1949 was an illegal act and that it amounts to trespass. The court has also comedown heavily on the miscreants who demolished Babri Masjid on 6 December 1992. 

Moreover, the court gave the Muslim parties the right over alternative land which is almost double the size of the original disputed land. The disputed site was 2.77 acres and court granted five acres to the Muslim side. If the court had rejected the Muslim case, Muslim party should not get even an inch of land. This shows that the bench indulged in a reparation of sorts. 

The court does reparation only when it accepts that an injury was inflicted to a party.  The Muslim side’s case stands vindicated. I think the Muslim parties should be satisfied with it. And the Hindu parties should also be satisfied with the fact that they got the right to construct a temple in the very spot they believe Lord Rama was born. 

In that way, it is a win-win situation. I am happy with the judgment and reasoning of the court. 

The consolation for the Muslim parties is that the Supreme Court has upheld many of their major assertions.

The court may have indulged in reparation, but you have been maintaining that the court should uphold “a counter majoritarian point of view” in this case. Do you think this judgment upholds the counter majoritarian point of view?  

I don’t think so. The court upheld the majoritarian point of view. The court had to invoke Article 142 of the constitution which deals with special powers of the court. This means that the court felt that giving away the disputed land to the temple alone was not enough and that they had to do something more. By giving land to the Muslim parties, the court tried to balance the judgment even though it upheld a majoritarian point of view. 

Is this the end of the road of Ram Janmabhoomi-Babri Masjid dispute? 

The parties can file a review petition but I do not think anyone will. I do not think anyone should.




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