It is a travesty of justice that the Supreme Court did not give secularism its due in the Babri Masjid dispute: Justice RF Nariman

Retired Supreme Court judge Justice RF Nariman said that the judgements delivered by the Supreme Court in the last few years relating to the Babri Masjid dispute do not do justice to the principle of secularism, particularly the 2019 judgement which conclusively decided the issue by allowing the construction of a temple at the site where the mosque was demolished.

“In my view, the great travesty of justice is that secularism has not been given its due in these judgements,” he said.

Speaking on the topic “Secularism and the Indian Constitution” at the first Justice AM Ahmadi Memorial Lecture, Justice Nariman recalled the steps taken by the Indian government after the demolition of the Babri Masjid on December 6, 1992.

“Firstly, it appointed the Liberhan Commission, which of course slept for 17 years and then submitted a report in 2009. Secondly, it passed the Ayodhya Acquisition of Area Act as well as the Presidential Reference to the Supreme Court to determine whether there was a Hindu temple beneath the mosque,” he said.

He then referred to the Court’s judgments dealing with the Babri Masjid issue. In Dr M Ismail Faruqui etc, Mohd Aslam, v Union of India (1994) the Court was dealing with the constitutional validity of the acquisition of certain areas in the Ayodhya Act, 1993 and the maintainability of a Presidential reference to decide whether there was a Hindu temple beneath the Babri Masjid.

Here the Court held that the acquisition of 67 acres of land by the Central Government was an exercise of statutory receivership.

Section 7(2) of the Acquisition Act stated that the status quo as on the date of the Act, i.e. 7 January, 1993, would be maintained. This status quo meant that Hindu priests could offer prayers inside. Here there was a sharp difference of opinion in the Court, while the provision was upheld by a 3:2 majority, Justice Ahmadi in the minority held that the law was against secularism.

Justice Nariman also analysed the final verdict in the Ram Janmabhoomi case (2019), where a 5-judge bench of the Supreme Court headed by then CJI Ranjan Gogoi unanimously ruled that the entire disputed land of 2.77 acres in Ayodhya should be handed over for the construction of Ram Mandir.

Also, the Court said that an alternative plot of 5 acres should be allotted to the Sunni Waqf Board for the construction of a mosque. The Court said that the demolition of the Babri Masjid in 1992 was a gross violation of the law.

Citing the 2019 verdict, Justice Nariman expressed dissatisfaction with the Court’s reasoning for allocating the disputed land for Ram Mandir despite the demolition of the mosque being illegal.

“The mosque was built in 1528. Thereafter, the mosque continued as a mosque until the crisis came in 1853. That was the first time the crisis came. After the crisis, as soon as it was to be taken over by the Crown from the East India Company in 1858, the British erected a wall between the inner and outer courtyard. The inner courtyard was the premises of the mosque and the outer courtyard was just outside the premises. After that British wall, namaz was offered from both sides. So, the outer courtyard was used for worship by Hindus and the inner courtyard was used for namaz by Muslims.

Justice Nariman explained, “So, it is a recorded fact that from 1857 to 1949, namaz was offered from both sides…. In 1949, 50-60 people stormed the mosque and placed idols, as a result of which, all Muslim namaz stopped.”

Citing a 2003 report of the Archaeological Survey of India Giving his opinion, Justice Nariman further explained that the ASI found artefacts belonging to various groups including Shaivites, Buddhists and Jains. He underlined that an important conclusion was reached by the Supreme Court that “there was no Ram temple beneath the (Babri Masjid) structure.”

He said, “Despite the conclusion that Muslims continued to pray from 1857 to 1949, the Court said that they cannot say that they had exclusive possession of it and that this side was disputed. The Court said that it was disputed in the sense that blatant attempts were made to evict them contrary to the rules of law, which is the Court’s conclusion. This happened 3 times. It happened in 1857, 1934 and 1940. He further added that therefore, we cannot say that this side is undisputed. Whatever that means. Since this side is now undisputed, we cannot say that they have exclusive possession of the inner side. Therefore, it is a holistic thinking and now we come to the conclusion that the entire whole now belongs to the Hindus.”

“Another very important conclusion. Each time, it is the Hindu side that has done something contrary to the rule of law. For that, compensation must be made. What was the compensation? One would have thought that they would rebuild the mosque. But it was that we would give them some land to build a mosque. In my humble opinion it is a great travesty of justice that secularism has not been given its due in these judgments,” he said.

Justice Nariman also mentioned that in the criminal case relating to the Babri demolition conspiracy, the judge who had acquitted all, was appointed UP Lokayukta of Uttar Pradesh after retirement. “This is the situation in our country,” he lamented.

A ray of hope in Ayodhya verdict

Justice Nariman, however, said there was a “positive aspect” in the Ayodhya verdict in that it upheld the Places of Worship (Special Provisions) Act 1991.

Justice Nariman, expressing concern over the recent trend of filing suits claiming Hindu temples beneath Muslim religious structures, called for courts across the country to uphold the Places of Worship Act. Relying on 5 pages of the Supreme Court’s observations in the Babri-Ayodhya judgment on the application of the Act 1991, Justice Nariman underlined the need to do so.

“Today we find that such incidents are happening all over the country. We are seeing continuous litigation not only against mosques but also against dargahs. All this, in my opinion, can lead to communal disharmony. The only way to put an end to all this is to implement these 5 pages of this judgment and read it out in every district court and high court. Because these 5 pages are a declaration by the Supreme Court which binds all of them.”

Referring to the words of Justice Chinnapa Reddy in the judgment of Biju Emmanuel v State of Kerala, Justice Nariman concluded his address by saying:

“Our philosophy preaches tolerance, our Constitution practices tolerance, we must not dilute it”.