Supreme Court on Babri Masjid: Possession is Nine-tenths of Law
Whatever the answers to these questions, one thing is clear: it is a sad day for all of us who want an India that is not locked in a past, real or fabricated.
November 11, 2019
Why are Indians in the 21st century debating where a god was born and where that god should be worshipped? Is the “dispute” over Babri Masjid-Ram Janmabhoomi about the birthplace of Rama and faith? Or is it simply a means to assert that “Hindus” are now the dominant force in the nation, and people of other faiths have to accept the role of second class citizens? Was the destruction of Babri Masjid a matter of faith? Or did it herald the overturning of the secular nature of our state?
Whatever the answers to these questions, one thing is clear: it is a sad day for all of us who want an India that is not locked in a past, real or fabricated. For all of us who want India to look ahead, look forward, it is indeed sad to respond to a Supreme Court judgement that has unanimously placed a seal of judicial approval on the destruction of a mosque – an act that the Court itself describes as criminal.
The Supreme Court’s verdict makes strange reading. I am not a lawyer, so I cannot talk about its correctness in law. But what the 1,045-page judgment says – after hundreds of pages of history and discussion of facts – is that the title dispute over Babri Masjid-Ram Janmabhoomi is not a matter of history but a dispute over immovable property. The learned judges also assert that such a dispute must be settled by actual evidence and not faith. The judgement then proceeds to give the “disputed” site – the 2.77 acres – to the Hindu side on the basis of “possession” over a long period, even while accepting that it was a mosque, and that Muslims had regularly offered prayers there. This is what the Court calls “possessory title.” In other words, possession is indeed nine-tenths of the law.
Having enunciated sound legal principles over such disputes, the Court makes a distinction between property title and possessory title. In what can only be called a leap of faith, it says that the Muslim side did not provide evidence that the Muslims used the mosque as a place of worship between the 16th century and 1857. Then why did they construct a mosque at all? Why was it in use even after 1857? According to the Court, the Hindu side has shown better possessory evidence – to show that they used the outer courtyard exclusively, and shared the inner courtyard with the Muslims over a long time. Therefore, they have better possessory title to the disputed site based on evidence. The Court recognises that the Muslim side also had legal rights over property. Neither side has asked for a partition of the site. And so the Court has awarded the disputed site to the Hindu side while compensating the Muslim side for losing the mosque over which it had property rights. Hence the Court has awarded approximately twice the land lost by the Muslim side by virtue of this verdict.
Of course, land and property were never the issue in this dispute. The real issue is whether any community can take possession of the place of worship of another community by force and change its character. By giving the new status quo created by a criminal act a legal cover, the Court has, essentially, placed the stamp of judicial approval of an illegal act. If it was simply adjudicating over a legal property dispute, why did the Court not give instructions to prosecute the people who, in the Court’s view, destroyed the Babri Mosque in a criminal act?
What does this judgement mean for the country? Even if the final judgement appears unjust to all of us who uphold secular ideals, we have to note that the Court has, at least, laid down legal principles on which all such disputes must now be treated. The judgement has obvious implications for Kashi and Mathura, where the VHP and the RSS have also been trying to create similar disputes over the two mosques there. Hopefully, any such disputes will now be barred, based on the legal principles enunciated by the Court in this judgement. The Court, by not accepting the argument of faith trumping history and law, has at least established the Babri Masjid-Ram Janmabhoomi case as a unique one that cannot be used again. While there is a definite sense of hurt created by a judgement that gives the imprimatur of the Supreme Court on what is essentially a criminal act, it has not created a precedent for more such acts in the future.
The underlying political reality at present is that if the secular ideals of the constitution are to be kept alive, it is the people of this country who have to do it – by resisting any onslaught against the principles that keep us together as a nation. If we want the courts to act, people have to raise their voices so that they can be heard by those in power, including the courts. Passivity is not an option. The law may not be an ass, but it will act like one if we cannot mobilise public opinion in favour of justice. The law is a contested place. It is contested not just in the portals of the law courts but also in the minds of the people. The two struggles — inside and outside the courts — have to be waged simultaneously.
It is only when people’s voices, and concerns, are heard that we can move on — from being divided by those who use religion, community, caste, language. Only by uniting to fight for justice can people get to the real tasks. Removing poverty; providing decent work to future generations; and education, and health for all. Fighting the injustice of caste, gender and class oppression. Fighting against the Billionaire Raj that has replaced the British Raj. Can we unite the people to address these tasks? That is the question which holds the key to a better future.
First published in Newsclick.
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