April 18, 2021
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'The Legal Position Is Clear'

This was written before the judgment and we are appending it here for clarity on the legal issues involved

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'The Legal Position Is Clear'

Both government and opposition and the public in general are rightly in panic awaiting the verdict on Babri Masjid by Allahabad High Court—a situation brought about by the faltering non secular stand by all the concerned governments. The High Court is to give verdict on the following points:

1. Was the place under Babri Masjid the birth place of Lord Ram?

2. Was there or not a temple on the land on which Babri Masjid was built. 

Now it is obvious to the meanest intelligence that it is impossible to prove that birth place of Lord Ram was under the Masjid—it may be a matter of faith, genuine or contrived or otherwise, but that is no proof, nor can it ever be put forward as a legal ground to take away the land from the Mosque.

If the finding is that Masjid was not built on a temple, then the Muslims get the land back and free to use it in any way including the building of Mosque.

In the alternative it may be held that there was a temple on the land of Babri Mosque. But even with this finding the suit by VHP/RSS has to be dismissed. Admittedly Babri Masjid has been in existence for over 400 years till it was demolished by goons of VHP/RSS in 1992. Legally, speaking the Sangh Parivar would have no right even if a temple had been demolished to build the Babri Masjid.

I say this in view of the precedent of the case of Masjid Shahid Ganj in Lahore decided by the Privy Council in (1940). In that case there was admittedly a Mosque existing since 1722 A.D. But by 1762, the building came under Sikh rule and was being used as a Gurdawara. It was only in 1935 that a suit was filed claiming the building was a Mosque and should be returned to Muslims.

3. The Privy Council while observing “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and in violability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely”, went on to hold: “The Property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Limitation Act.“ On the same parity of reasoning even if temple existed prior to the building of Masjid 400 years ago, suit by VHP etc has to fail”.

4. There is another reason why in such a situation, suit would fail because in common law, even a rightful heir if he kills his ancestor, forfeits his right of inheritance. In the Masjid case too, there was ‘murder most foul’ and hence the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the legal position may be.

It is true that sometime some Muslims groups in a spirit of large heartedness and as a measure of mutual accommodation, suggest that if it was found that the Masjid was built on the site of a temple, they would not like to now build a Mosque on the said site because the Koran forbids Muslims to build a mosque by demolishing any other religious place. But even then, if Muslims choose not to build a Masjid on this site, the ownership and use of the land remains with them. Hindu cannot under any circumstances lay a claim to this site which was under Babri Masjid.

Some well intentioned persons come out with apparently neutral suggestion of building a multi Religious complex on the site. To me this would be surrender to rabid Hindu Communal sentiment—whatever explanation you may give, a Muslim then would feel less equal citizen if even after he has won, he is asked to share this site with the goons who destroyed the Holy Mosque. This would be a defeat of secularism and against our constitution which mandates that all citizens, whether Hindus, and, Muslims have equal Rights and are equal before law.

5. A multi Religious Complex or multi culture Centre or a hospital can obviously be built by the joint free will efforts of both Hindus and Muslims. But such a complex if it is to be built necessarily must be on the land away and outside the Masjid complex, and that too only if the Muslims give their consent—obviously as vacant land belongs to the Muslims. But under all circumstances, the site under Babri Masjid must remain in the exclusive possession of Muslims who will be free to use it in any way the community decides.

I feel that the government should start doing an exercise of consultation, preparation on these lines—to wait helplessly trying to anticipate what the verdict would be is like a pigeon that on seeing a cat closes its eyes with the delusion that cat will go away—the result is obvious.

Equally I feel that leaders of all communities, political parties, and social workers should start planning to meet the situation, because this matter requires the involvement of people at grass root level and the matter does not brook any delay.

The legal position is clear. It is only the weakness of political will that is responsible for the Ayodhya imbroglio to continue as one of the most bitter disputes within the country. By keeping the Ayodhya issue alive, the country has been kept away from addressing its most urgent task – how to meet the challenge of the growing pauperization of the masses. And that includes both Hindus and Muslims.

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