Harsh Mander, 25 Eminent Citizens File Review Petition Against Ayodhya Judgement

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Eight petitions have been filed in the top court so far, seeking review of the Babri Masjid case order

Abdul Bari Masoud | Caravan Daily

NEW DELHI —  A group of 26 eminent citizens belonging to various faiths, traditions or with atheist and agnostic convictions, filed a petition on Saturday seeking a full-bench review of the Supreme Court order of November 9 in the Babri Masjid case. The petitioners sought relief in the case, principally on the ground it was not a Hindu-Muslim dispute but a “contestation vis-a-vis the core of the nation’s Constitutional morality, and the principles of equality, secularism, justice, rule of law and fraternity”.

So far, eight petitions have been filed in the court, seeking a review of the Babri order.

Noted activist and former civil servant Harsh Mander told ‘Caravan Daily’ that the apex court erred grievously in both fact and law, in relation to its verdict on the Ayodhya title suit case. Since the verdict has a critical bearing and profound implications across generations in the upholding of many fundamental rights, as also of equality, of life, and of freedom of worship, he said it was the duty of  every citizen to intervene and seek steps to defend and uphold their Constitutional rights, and preserve the secular democratic character of the Republic.

Asserting that this was not just a Masjid-Mandir issue, he said. “We filed a composite and collective petition signed by Hindus, Muslims, Sikhs, Christians, Buddhists, Jains, and atheists, who all shared a deep commitment to the moral fibre of the Constitution.  The petition argued thus: “The Vishwa Hindu Parishad, a militant Hindutva outfit and close affiliate of the Rashtriya Swayam Sevak Sangh (RSS), does not represent the Hindus at large, not any more than the way the Uttar Pradesh Sunni Central Board of Waqf represents India’s Muslims.”

The petition was filed on eight grounds as follows:

1. Despite having reiterated that the case was to be decided purely as a property suit between the parties, the apex court framed the dispute from the very first paragraph of its judgement to be one between two religious communities. Unfortunately, as stated earlier, throughout the course of the judgement, the court consistently described the dispute as one between “Hindus” and “Muslims”. In doing so, the court seriously misconstrued the nature of the legal dispute, the legal submissions of the parties, and the role of religious identity in it, by assuming that all Hindus and Muslims in the country shared the views of the respective parties to the dispute.

2.  In the opening paragraph of the judgement, the court states that the ‘Hindu community’ believed that the disputed site was ‘the birthplace of Lord Ram, the incarnation of Lord Vishnu’. This is simply not true. Some Hindus believe that Ram was born at that precise location, and others do not. It is entirely true that Hindus believe that Lord Ram was born in Ayodhya, but there is a diversity of beliefs if the Ayodhya of his birth is in fact present-day Ayodhya. And even within the present-day Ayodhya, there are multiple sites which residents claim to be where Lord Ram was born.

On what grounds does the court privilege one ‘faith and belief’, namely that Ram was born at the site under the central dome of the demolished Babri mosque, over the ‘faith and belief’ of innumerable other Hindus, who believe that Ram was born elsewhere?

3.  The court, in the matter of evidence, found that there was no conclusive evidence on either side to show ownership of the disputed land as a composite whole. It was held that Hindus were able to show exclusive possession of the outer courtyard before 1857, whereas Muslims failed to show a similar exclusive possession of the inner courtyard before 1857. However, it maintained that both failed to establish exclusive possession of the land as a composite whole; even so, the Hindus were awarded the full title. This reasoning of the court was legally deficient and manifestly unjust.

4. The court erroneously used different standards in relation to proof for both parties. It held that ‘the Muslims’ had failed to prove that they had exclusive possession of the inner courtyard. However, it was enough in the case for ‘the Hindus’ to show that they believed the Ram Janamsthan lay under the central dome of the mosque.

5.  There was a grave inconsistency in the court’s claimthat there was no evidence of a Muslim prayer in the inner structure between 1528 and 1857, while accepting that the mosque existed for over 450 years. As asserted by leading historian Irfan Habib, ‘The possibility of the Babri Masjid having had no Muslims to pray in it during Mughal times is a simple piece of judicial fancy’.

Similarly, Constitution expert Faizan Mustafa describes as ‘laughable’ the conclusion of the court that there was no evidence of continuous worship by Muslims from the time of the construction of the mosque up until 1857, because it accepts that there was a mosque at the site. Then, why should this mosque have been built in the name of the founding emperor of the Mughal dynasty, in a location with Muslim populations, if it was not be used for prayer during the years of Mughal rule?

It was patently unreasonable for the court to assume that the Muslims would not have used the mosque for worship for centuries since its construction, without the court providing any reasons to support this view.

6. It was held by the court that the ASI report had established that the Babri Masjid was not built on a vacant land, but the court was not able to establish the nature of the underlying structure. It said there was no evidence of the underlying structure being a Ram Mandir.  This section of the judgement contravened the Constitutional premise that there were no sound legal and Constitutional grounds to try and correct the alleged or established wrongs of history in the 21st Century.

7.  What the judgement did in effect was to reward those who broke the law three times over, defied the orders of the Supreme Court, and above all dishonoured the guarantees of India’s Constitution and the central article of faith – namely, of equality of all religions — in India’s struggle for freedom. This order would probably have been inconceivable if the mosque still stood at the disputed site.

The court did acknowledge in its judgement the wanton debasement of the law in the first two cases, yet rewarded the party responsible for this, for their multiple assaults on the law, the Constitution and the Supreme Court.

8. The court was legally mistaken in its act of offering the control of the whole land to the government. While the Constitution does give the state the responsibility of ensuring equity, transparency and justice in religious institutions, its secular character does not support the state to facilitate or construct religious places of worship. This is precisely the consequence of the court’s order. Moreover, the court has done so without any reference to legal reasons or precedent.”

 While seeking the review by a full bench of  the apex court, the petition argued that many more grounds shall stem from the above mentioned points.

SDPI SEEKS REVIEW

Meanwhile, the Social Democratic Party of India sought a review of the Babri judgement, and said it perturbed a large number of people as the “Rule of Law” was mischievously weakened by selective application of justice.  Party vice president and advocate, Sharfuddin Ahmad, who filed the petition on behalf of the party, told Caravan Daily that the 5-judge bench has given the clear findings that: (a)  No temple was demolished for construction of the Babri Masjid in 1528; (b), the placing of idols into the central dome of the Babri Masjid was an illegal act committed on the intermittent night of 22/23 December of 1949; (c),  the demolition of the Babri Majid on 6 December 1992 was wrong and illegal; (d), there was a huge gap between findings and the operative part of the judgement.

AK GANGULY’s OBSERVATION

Extensively quoting former Supreme Court judge AK Ganguly’s observation on the Babri verdict,  the SDPI petition seeks the review on the grounds that (a), “It is painfully felt the majoritarian ideology has prevailed over the facts and evidences of the case; (b), and jumping over its own findings, the court has given this verdict which supported a stand of ‘unequal citizenry’ and encouraged all those elements who put the system of secularism, democracy and Constitution under constant attacks; and (c), it is surprising that main report of the ASI signed by all the authorized persons gave a finding that no temple was found beneath the masjid, was kept aside, and instead an unsigned epilogue mysteriously put at the end of the report unsigned — that structure beneath did not look Islamic –was relied upon by the court.

The SDPI petition also said it was relevant to state (the contradiction)  that if the Muslim case was rejected, they should not get even an inch of land, but, instead five acres of land is provided to them. This meant there was a sort of reparation, and the reparation is granted only when an injury is inflicted. But, strangely, there was no finding on such injury to Muslims was made by the court. “So it appears that this was a majoritarian verdict delivered to please and appease the Hindutva brigade on the majoritarian ethos. This sets a precedent to open a Pandora box, if left un-assailed.”

“That the infirm and illogical order, not in consistency vis-à-vis the court’s findings and observations, has surprisingly been made perpetual by unnecessarily invoking the jurisdiction of Article 142 of the Constitution in the judgment and the decree of 9th November,  2019.”

“The  Supreme Court has left many confusing, ambiguous and moot points still to be decided in view of the expediency of the issue as it has directed the government to allot five acres of land at a suitable and prominent place in Ayodhya for the construction of a Masjid but it may not seems to be just and fair and cannot be accepted by the community and the country,” the review plea by SDPI said.

Earlier, the Jamait Ulama-I-Hind and the All India Muslim Personal Law Board filed the review petitions while the main litigant, the UP Central Sunni Waqf Board, did not file a review petition, allegedly under pressure from the UP state government.

 The Jamait seeks a review of the impugned judgment on 14 grounds, citing among them  the “glaring contradictions and precedence given to faith in the court order.”

The Muslim Personal Law Board petition was based on four grounds with sub-clauses, and it also attached a  list of dates  and events of  the Ayodhya episode.

The petition also highlighted the point that, after the November9, 2019 order, “enormous pressure has been put on the Muslim community to make sure that it did not to file a review petition, and accept the five acres land allotted to the Sunni Waqf Board in any area, possibly away from the site where the Muslims were praying for centuries.”

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