“Silences are sometimes best left to where they belong – the universe of silence.” This is what the Supreme Court says in its judgment in the Babri Masjid – Ram Janmabhoomi title suit, when commenting on the hazards of drawing conclusions from gaps in historical records. However, what is remarkable about the Supreme Court judgment is precisely its silences on the positions it takes. In this article, we shall attempt to bring a few of those positions out of this universe of silence.
The Supreme Court’s judgment is this case is historic for many reasons. The court repeatedly emphasises that the decision must not be based on the strength of the beliefs of the parties, but instead be determined according to the “clear” and “profound” legal principles governing ownership and possession. Underscoring this supposed separation between politics and the neutrality of the law, the court notes that the “law must stand apart from political contestations over history, ideology and religion.” The question is: are the judges successful in this endeavour? We believe they are not, and they do worse: by couching the judgment in the neutrality of the rule of law, many of the brute political factors that underlie its reasoning are pushed into the background. This includes the way the court decided the question of possession, the nature of the property, and the appropriate remedy.
The possessory claim
Ultimately, the disputed premises were handed over to the Hindu side on the grounds that they had the stronger possessory claim to the property. In order to understand this claim, the court analytically divided the property into two components: the outer courtyard, and the inner courtyard. These parts of the property were divided by a railing, which had been erected by the colonial administration following communal conflagrations in 1856-7. The railing, was “an attempt by the administration to provide a measure of bifurcation to observe religious worship – namaz by the Muslims inside the railing within the domed structure of the mosque and worship by the Hindus outside the railing.”
With respect to the outer courtyard, the court notes that the Hindu side was in “exclusive and unimpeded possession.” On the other hand, the inner courtyard was a “contested site with conflicting claims of the Hindus and Muslims.” This was the reason, according to the court, that the Hindu side had a stronger possessory claim. At first glance, it is apparent that there are two different standards at play here: the Hindu side had to prove exclusive possession of the outer courtyard, whereas the Muslim side had to prove uncontested possession of the inner courtyard. This is not just an idle semantic difference: underlying the different standards applied to the possessory claim are deep silences about constitutional questions.
Exclusive possession and exclusive arguments
As Sruthisagar Yamunan points out, in evaluating the ‘exclusivity’ claim, the possession of the inner courtyard by the Muslim side after 1857 was ignored by the court; it instead relied upon the Muslim side not being able to prove exclusive possession before the railing was set up in 1857. This is quite strange given that the court in an earlier part of the judgment spends considerable jurisprudential energy upon declaring that it is only the “acts of the parties subsequent to the annexation of Oudh in 1856” which can form the legal basis of determination of the possessory claim. Further, the exclusive possession of the Hindu side to the outer courtyard is determined on the basis of incidents which occurred after 1857, including the construction of structures in the outer courtyard, and the opening of an additional door in 1877 to accommodate the devotees who would worship at the site. The court itself states, “there was a consistent pattern indicating possession and worship by the Hindus at the outer courtyard after the setting up of the railing in 1856-7.” This is important because the various travelogues relied upon by the court, did not state that only Hindus were exclusively worshipping at the site before 1857. The court effectively adopts two standards here as well: Hindus could establish possession on the basis of incidents which occurred after 1857, whereas the Muslim side had to base its claims upon facts before 1857.
The simple way to look through this reasoning of the court is to ask the question: what would happen if we apply the same standard of exclusive possession post 1857, to the inner courtyard? The court would then have to deal with certain uncomfortable facts which demonstrated exclusive Muslim possession of the inner courtyard. The colonial administration repeatedly recognised the Muslim claim to possession of the inner courtyard. For instance, when in 1858, one Nihang Singh forcefully entered the inner courtyard, the administration ordered his eviction. Similarly, the domes of the mosque damaged in communal riots in 1934, were renovated at the cost of the British and a fine was imposed upon the Hindu side for the cost of repair. Even the lock and keys to the inner courtyard remained with the Muslim side! What is this, but clear recognition of the rights of the Muslim side to continue in exclusive possession of the inner courtyard?
Violence and assertions of possession
The court rebuffs the clear proof of the possession of the inner courtyard by the Muslim side by observing that the Hindus had always ‘contested’ its possession by the Muslim side. This is demonstrated through (i) the repeated acts of individuals attempting to place idols and perform puja in the inner courtyard, and (ii) the continued worship by some Hindus of the inner courtyard, demonstrated by them paying obeisance to and making offerings towards the three-domed structure.
With respect to (i) above, again, the simple question we ask is what would happen if the same standard was applied to the outer courtyard instead? Did the Muslims not contest the Hindu possession of the outer courtyard at all? The answer is clearly no. For instance, in 1860, the Muslim side had complained to the administration about the erection of new structures by the Hindu side in the outer courtyard. Similarly, the opening of the additional gate in order to facilitate greater access by Hindus to the outer courtyard in 1877 too was fiercely resisted by the Muslim side before the administration. Therefore, the Muslim side has also asserted its claims on the entire site from time to time.
Ultimately, the question of possession on this count boils down to one factor: the legal recognition and sanctification of the illegal and violent acts of the Hindu side in physically interfering with the peaceful possession of the inner courtyard by the Muslim side. In fact, it was these violent acts which were legitimised by the court in using them as the means through which the Muslim claim of continuous and unimpeded possession was defeated. The court recognises that the “possession over the inner courtyard was a matter of serious contestation often leading to violence.” But recognising these as legal ‘contestations’, effectively puts a legal imprimatur upon violence.
It is this violence which lies at the heart of the supposedly neutral legal logic. While legalising violence is dangerous in itself, it also effectively occludes the fact that both parties did not have an equal capacity to inflict violence. The ability of the Hindu side to inflict violence effectively stems from their greater power in the body politic, in comparison to Muslims who remain in a minority. This, in fact, is explicitly recognised by the judgment at several points. For instance, before the desecration of the mosque in 1949, namaz used to be offered in the mosque. The frequency of namaz was reduced because of violent acts by the Hindu side, mentioned in the judgment. Shoes and earth were thrown at Namazis prior to 1949 and loud noises were made during namaz, leading to legitimate fears of the Muslim side to their being impeded in offering namaz. This was even recognised by the administration, since it directed police protection every Friday for the offering of namaz.
Does a constitutional court then expect a minority to act violently and assert its rights when it has considerably less power to do so? Did they expect that the Muslim side too should actively interfere in the possession of the outer courtyard by the Hindus, despite knowing all too well the repercussions that might ensue? If indeed the law of possession leads to this conclusion, is it not apparent that it is foundationally premised upon, and buttresses, inequality? Where indeed was the constitutional promise of equality, in Articles 14, 15, 16 and 17, in the evaluation of this claim? As Siddharth Varadarajan observes in The Wire, the parties in this dispute were never on a level playing field in the first place, which the reduction of the claim to an ordinary civil dispute hides.
Upendra Baxi defends the judgment on the basis that it follows the laws of possession, “[s]trange though it may look to non-lawpersons.” There is a reason why it looks strange to non-lawyers; maybe it is only lawyers who can claim the neutrality of the rule of law in the face of such inequality. Even though we do not believe that the laws regarding possession were correctly used in the judgment, the question which remains is: if this indeed was the correct use of the law of possession, is it not time that we challenge those very laws as well?
Unequal faiths unequal manifestations
In addition, the Muslim side, unlike the Hindu side, could not face the outer courtyard and direct their worship towards it, a factor which was so crucial to the Hindu claim to the inner courtyard, as observed above. This is because the outer courtyard was to the east of the inner courtyard. Unfortunately for the Muslim side, their religion directs them to face towards Mecca when worshipping. In the case of the Babri Masjid, this meant that they had to face west, away from the outer courtyard. Neither could the Muslim side circumambulate the mosque or the disputed site, unlike the Hindu side, as that is not a form of worship Muslims generally engage in at mosques. What is hidden is that the inherent nature of the religions gives an advantage to one over the other. The court asserts that the Indian constitution postulates “equality of all faiths”, yet it does not engage with different manifestations of faith and worship.
Interestingly, the court does recognise, in other parts, that the nature of religious faiths can themselves lead to unfair advantages when it dismissed the claim that the site itself is a legal person because of the belief that it is the birthplace of Lord Ram. In doing so, it correctly noted that “a method of offering worship unique to one religion should result in the conferral of an absolute title to parties from one religion over parties from another religion in an adjudication over civil property claims cannot be sustained under our constitution.” However, beliefs which are unique to the Hindus do eventually find their way in supporting their possessory claim, undermining the neutrality of the judgement.
The nature of the property
As Nizam Pasha correctly points out, another fulcrum of the judgment was the determination that the property in question “is one composite whole”, and the existence of the railing was irrelevant. This determination was based on “(i) the immediate setting up of the Ramchabutra by the Hindus right outside the three domed structure upon the setting up of the railing; (ii) the continued assertion of rights to the inner courtyard by Hindus; and (iii) offering of worship by devotees towards the ‘Garb Grih’ standing outside the railing.” These reasons are interesting, because the court effectively holds that it is the belief of the Hindus here that makes the property one composite whole. This is reiterated later, where it notes that “the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. (emphasis in original)”
Again, therefore, we find the judges explicitly relying upon the religious beliefs of the Hindu side, to eventually award the entire site to them. despite claiming repeatedly that title cannot be established solely on the basis of faith and belief. This is what distinguishes the Supreme Court judgment from the Allahabad high court decision, which had instead ordered a division of the property between the competing sides.
In criticising the high court judgment ordering a division of the property, the Supreme Court states: “The disputed site admeasures all of 1500 square yards. Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquility.” This constant appeal to ‘peace and tranquility’ is nothing but deference to the powerful side, as has been argued by Suhrith Parthasarathy and Gautam Bhatia. Further the reduction of the dispute to the contested 2.77 acres ignores the acquisition of about 68 acres of surrounding land by the Central government post the 1992 demolition of the Babri Masjid, done under the Acquisition of Certain Area at Ayodhya Act, 1993. All of this land is effectively handed over to the Hindu side by this decision.
Conclusion: Through the looking glass
2018 was a year of landmark judgments by the Supreme Court: from the decriminalisation of homosexuality and adultery, to the entry of women into the Sabarimala temple. 2019, in contrast, is a year of regression. The Sabarimala judgment has been referred to a larger bench, effectively on the basis of writ petitions which challenge the legal doctrine of ‘essential religious practices’ used in the 2018 judgment. Maybe filing writ petitions challenging the constitutionality of the possessory laws and their application to this case can be considered?
In the Navtej Singh Johar judgment, which decriminalised homosexuality, the court correctly emphasises that even ‘neutral’ seeming legal provisions can lead to inequality, and consequently should be struck down. Justice Chandrachud, for instance, in an articulate part of his judgment titled ‘Facial neutrality: through the looking glass’, observes that the apparent neutrality of Section 377 of the Indian Penal Code hides the disproportionate impact it has upon the lives of sexual minorities. However, facial neutrality is precisely what the court uses to hide the disproportionate impact and unequal basis of its decision in the Babri Masjid dispute. Maybe it is time for the court to peer into the looking glass itself.
John Sebastian is an Assistant Professor at Jindal Global Law School and Faiza Rahman is a Research Fellow at the National Institute of Public Finance and Policy, New Delhi. Views expressed are personal.