Great Travesty Of Justice That Secularism Wasn't Given Its Due By Supreme Court In Babri Masjid Dispute: Justice RF Nariman

Retired Supreme Court Judge, Justice RF Nariman expressed that the judgements that the Supreme Court delivered over the years relating to the Babri Masjid Dispute did not do justice to the principle of secularism, especially the 2019 Verdict which conclusively decided the issue by allowing the construction of the temple at the site where the mosque was demolished.

"In my opinion, a great travesty of justice was that Secularism was not given its due by these judgements," he said.

Speaking at the First Justice AM Ahmadi Memorial Lecture on the topic "Secularism and the Indian Constitution",  Justice Nariman recalled the steps taken by the Government of India after the Babri Masjid was demolished on December 6, 1992.

He narrated, "First it appointed a Liberhan Commission, which of course slept over for 17 years and then delivered a report in 2009. Second, it had Ayodhya Acquisition of Areas Act and concomitantly a Presidential Reference to the Supreme Court to determine, I would submit rather mischievously, whether there was a Hindu temple underneath the mosque." 

He then referred to the decisions of the Court dealing with the Babri Masjid issue.  In Dr. M. Ismail Faruqui Etc, Mohd. Aslam, vs Union Of India (1994), the Court was dealing with the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993 and maintainability of the Presidential reference to decide whether any Hindu Temple existed beneath the Babri Mosque. 

Here the Court held that the Central government's acquisition of 67 acres of land 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 will be maintained which is January 7, 1993. This status quo meant Hindu Pujaris could pray inside. Here the court was sharply divided in opinion, while the provision was upheld in a 3:2 majority, Justice Ahmadi in the minority held that the law was against secularism. 

Justice Nariman also dissected the final verdict in the Ram Janmabhoomi Case (2019), where, in a unanimous verdict, the 5 Judge bench of the Supreme Court headed by then CJI Ranjan Gogoi held that the entire disputed land of 2.77 acres in Ayodhya must be handed over for the construction of Ram Mandir.

At the same time, the Court held that an alternate plot of 5 acres must be allotted to the Sunni Waqf Board for the construction of a mosque. The Court observed that the destruction of Babri mosque in 1992 was an egregious violation of law.  

Referring to the 2019 verdict, Justice Nariman expressed discontent over the reasoning given by the Court to grant the disputed land for Ram Mandir despite holding that the demolition of the mosque was illegal. 

"The mosque itself was built in 1528. Then, the mosque continues as a mosque until, there was trouble in 1853. This is the first time there is trouble. After there is trouble, just as the Crown is due to take over in 1858 from the East India Company, a wall is built by the British between the inner and outer courtyard. Inner courtyard was the precincts of the mosque and the outer courtyard was just outside the precincts. After that British wall, prayer was conducted by both sides. So, outer courtyard, the prayers were conducted by Hindus and inner courtyard by Muslims. 

So, it's a recorded fact that prayers were conducted on both sides right from 1857 uptil 1949....In 1949, 50-60 people stormed the mosque and put idols as a result of which, all Muslim prayers ceased," Nariman explained.

Referring to the 2003 Report of the Archeological Survey of India, Justice Nariman further explained that the ASI found artefacts belonging to different groups, including Shaivaite, Buddhist and Jain. He underlined that an important finding was made by the Supreme Court that "there was no Ram Temple under the (Babri Masjid) structure."

"Despite the finding that Muslims were praying from 1857 to 1949, the Court said they cannot say they were in exclusive possession and this side was disputed. Court said it was disputed in the sense that egregious attempts were made to dislodge them contrary to rule of law, which is the finding of the court. 3 times it happened. It happened in 1857, 1934, and 1940. They go on to say that therefore, we cannot say that this side is undisputed. Whatever this means. Since this side is now undisputed, we cannot say they have exclusive possession of the inner side. Therefore, this is one composite whole and we now jump to the conclusion that the composite whole now belongs to Hindus," he said.

"One other very important finding. Every single time, it is the Hindu side which has done something contrary to the rule of law. For that, reparations have to be made. What was the reparation? One would have though they will rebuild the mosque. But it was we will give them some land to build a mosque on their own. In my humble opinion, it was a great travesty of justice that secularism was not given its due at all by these judgments," he added.

Justice Nariman also mentioned that in the criminal case relating to the Babri demolition conspiracy, the judge who acquitted everyone was after retirement appointed as the Upa-Lok Ayukta of Uttar Pradesh. "That is the state of affairs in our country," he lamented.

Silver lining in the Ayodhya judgment

Justice Nariman however said that the Ayodhya judgment had a "silver lining" 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, underlined the need for Courts across the country to rely upon the 5 pages of the Supreme Court's observations in the Babri-Ayodhya judgment on the application of the Places of Worship Act 1991. 

"Today we find hydra heads popping all over the Country. We find suits after suits not only against mosques but also against Dargahs. All this, according to me could lead to communal disharmony. The only way to scorch and cauterize all this is by applying these 5 pages in this very judgement and having it read out in every district court and High Court. Because these 5 pages are a declaration by the Supreme Court which binds each of them." 

Referring to the words of Justice Chinnapa Reddy in the decision of Biju Emmanuel v. State of Kerala, Justice Nariman, ended his address by expressing: "Our Philosophy preaches tolerance, Our Constitution practices tolerance, let us not dilute it." 

The lecture can be watched here.