Babri Masjid Case Analysis
The Babri Masjid demolition case is a landmark judgment and the dispute has arisen chaos in the country. The dispute was about 1500 square feet yard parcel of land and a disputed structure. “Hindu” parties claim that this is the birthplace of Ram & therefore have a right to worship at the site, & that the title & possession of the site belongs to the Hindu deities being worshipped at the site. Some of them claim that prior to the 16thcentury there existed a temple dedicated to Ram at the site & that it was destroyed to build the disputed structure, a mosque. Others claim that the disputed structure was always a temple, & that it had never been a mosque at all. “Muslim” parties claim that the disputed structure was a mosque built by Emperor Babur in 1528, that it had been dedicated as a mosque to the almighty & that therefore they have a right of worship at the site. Further, they claim that a public wakf, possession, if any, should lie with the Sunni Wakf Board.
It is admitted that at least since the middle of the 19th century in one eastern portion of the property, Hindus have been praying. (Hindus claim this began much earlier). In 1855 a fight broke out between the 2 groups, after which a portion was constructed dividing the land into 2 equal parts – with the intention that Muslims use the inner portion (called the inner courtyard) & the Hindus the outer portion (the outer courtyard). The first judicial notice of the event occurred in 1885 when permission was sought to build a temple over what was called the Ram Chabootra in the outer portion, by the Hindu Mahant. Documents submitted along, in this case, showed a division of property along the lines of post – 1855 dispensation. A similar demarcation was noticed & submitted by the court-appointed commissioner in 1950 when the current case was first brought to Court. The 1885 suit was contested by the Mutwalli of the Babri Mosque. His claim was that the entire land belonged to the Mosque & merely because Hindus had been allowed to come in & pray in the mosque they could not acquire title over the property. However, the correctness of the maps was not challenged. While the possession of the outer courtyard by the Hindus was accepted, the suit was denied on the public policy ground that the construction of a temple would lead to the blowing of conches & shells, & since Muslims were praying nearby, their service would be interrupted, & might lead to ill-will & rioting between the two communities. The suit was dismissed, as was the appeal against the judgment.
In Babri Masjid case history in 1934, there was a riot between Hindus & Muslims at the disputed site, which caused severe damage to the disputed structure. It was averred by some Hindu groups that since then they were in possession of the entire suit property. Muslim parties claimed that they continued to be in possession of & offer Namaz in the inner courtyard. In 1949 there were a series of disturbances, culminating in the night of 22/23rd December, when a crowd of Hindus worshippers entered the Masjid & placed the idols from the outer area into the inner courtyard under the central dome, claiming this be the exact birthplace of Ram. On 29th December 1949, an order under S.145 Cr.P.C. was issued attaching the disputed property & given over to the receivership of a government-appointed receiver. Since 23rd December 1949 Muslims have not been able to use the mosque though, in the attachment order, pujas were permitted to continue. After demolition in 1992, the idols were put back in the same spot under the central dome.
There were 4 suits before the Court, which were clubbed together & suit 4 was made the leading case by agreement.
SUIT 1: Filed by a devotee claiming that his right to worship Shri Ram Lalla was being denied to him because of section 145 of CrPC order, according to which devotees could not do darshan from behind grill/railing.
SUIT 2: Withdrawn
SUIT 3: Filed by Nirmohi Akhara, claiming that they are a religious order traditionally charged with the maintenance & managed of the Ram Janm Sthan. They sought possession of the entire dispute spot on the ground that the disputed structure had never been a mosque; that it was a temple; & Nirmohi Akhara was in charge of its maintenance.
SUIT 4: Filed by the Sunni Central Wakf Board seeking a declaration that the disputed structure was mosque; & that if deemed appropriate, to hand over possession to the Board.
SUIT 5: Filed on behalf of Shri Ram Lalla Virajman, the idol, & the Sri Ram Janm Sthan (claiming that both are juristic entities, as both are deities capable of holding land in their own name, & of suing & being sued). The deities through their next friend sought title & possession of the disputed property.
ISSUES TO BE DETERMINED BY THE COURT
- Whether the disputed site is the birthplace of Ram? It impacts on the claims:
- Whether there existed a temple at the spot which was demolished to build the mosque?
- Whether the mosque was built by Babur?
- Whether the disputed structure was a “valid” mosque? Also, the impact of the 1992 demolition.
- Whether the mosque has been used continuously for offering Namaz
- Whether Hindus have continuously been worshipping at the site?
- Title & possession
- Is the suit maintainable/ within the time
- Res judicata
Justice Sharma stated that “Lord Ram as the avatar of Vishnu having been born at Ayodhya at the Janmasthan is admittedly the core part of Hindu scriptures also sanctify it. Article 25 of the Constitution being a fundamental right ensures its preservation & no relief can be taken by the court which seeks to restrict or altogether extinguish this right.” He also stated that there did exist a Ram temple at the disputed spot which was demolished to construct the disputed structure. For this purpose, he relied on the ASI report which he accepted, rejecting the allegation of bias against the agency, as well as the objections to relying on the report without having examined the Commissioner. On the basis of the report, Justice Agarwal stated that: “The ultimate inference, which can reasonably be drawn by this Court from the entire discussion & material noticed are:
- The disputed structure was not raised on a virgin, vacant, unoccupied, open land.
- There existed a structure, if not much bigger then at least comparable or bigger than the disputed structure, at the site in dispute.
- The builder of the disputed structure knew the details of the erstwhile structure, its strength, capacity, the size of the walls, etc. and therefore did not hesitate in using the walls, etc. without any further improvement.
- The erstwhile structure was religious in nature & that too non-Islamic one.
- The material like stone, pillars, bricks, etc. of the erstwhile structure was used in raising the disputed structure.
- The artefacts recovered during excavation are mostly such as are non-Islamic i.e. pertaining to Hindu religious places. Even if we accept that someone the some of the items is such which may be used in other religions also. Simultaneously no artefacts etc., which can be used only in Islamic religious places, have been found.
There were doubts raised as to whether the mosque was actually built by Babur. Justice Khan & Agarwal stated that there is no clear evidence that led to the orders of building the mosque was by Babur. But it was found that there were historical inscriptions which soon disappeared in 1934 & the records were all at variance with each other & hence not reliable. Justice Agarwal felt that the structure was built during Aurangzeb’s reign but it definitely came into existence during the mid – 18th century.
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When it comes to the validity of the mosque an attempt showed that the construction & dedication of the mosque did not follow the tenets of the Quran, as a result of which it was not a “valid” mosque & therefore Muslim communities did not have a valid right to worship at the disputed site. Later after the arguments made before the honourable court, Justice Agarwal held that “the question as to whether the building in dispute is a mosque, treated to be a mosque, believed to be a mosque has to be decided not in terms of the tenets of Shariyat whether observed there or not but how the people believed, treated & behaved in the past long time.”
Another issue was raised as to whether the mosque has been used continuously for Namaz. Justice Khan stated that unless it is proved that prayers were being offered in the premises in dispute, or the Hindus had not exclusively possessed the constructed portion & inner courtyard it cannot be held to be a mosque or a continuing mosque until 22/23rd December 1949. They found no proof that namaz was actually being offered in the mosque in all this time. He found proof of worship by Hindus in the inner courtyard because of the continuous complaints being made by Muslims that Hindus were entering into their area. However, Justice Agarwal did not take this means that Muslims were similarly exercising their right to worship in the mosque. Justice Sharma held that there was no reliable evidence that Muslims had continuously been offering prayers at the disputed site. There was no discussion in his judgment on the point & hence it is not clear on what basis he came to this conclusion.
In Babri Masjid case Supreme Court on 29th September 2018 with its three-judge bench opined in the ratio of 3:1 declining to refer the question if a “mosque as a place of prayer is an essential part of Islam” which was started in the judgment in the Ismail Faruqui case. It had stated that ‘a mosque is not an essential part of the practice of the religion of Islam & namaz by Muslims can be offered anywhere, even in open’. In Babri Masjid Demolition case judgment passed an order for allowing the appeal.
When it comes to the essentiality of a religion must be decided after a thorough study of tenets, beliefs, & doctrines. Justice Nazeer held that the comment has to be examined in the background of the fundamental rights against discrimination under Article 15 & the protection guaranteed to practice, profess & propagate religion in Article 25 & 26 under the Indian Constitution.
The majority view in Ayodha Babri Masjid case by Chief Justice Dipak Misra & Justice Ashok Bhushan ordered that the hearing in the main Ayodhya title suit appeals should resume in the week commencing from October 29. With Chief Justice Misra retiring on October 2, a new three-judge bench would be constituted. The Babri Masjid demolition case study has just created another line of difference between the Hindus and the Muslims.