5 Nov 2010
Sri Ram Returns Home
By Justice Kamleshwar Nath (Retd.)

The Court found pre-existence of temple, but did not find that it was demolished and masjid erected over it holding, nevertheless, that some of temple’s material was used in the erection of the masjid. It is admitted by all, including Sunni Waqf Board, that a masjid cannot be erected over a property which does not belong to the person who builds it. 

The joy is not unmixed. The Nirmohi Akhara whose suit stands dismissed by the Court had been hostile to Bhagwan Sri Ram and His birthplace as a deity; they claimed that the Akhara was the ‘owner’ of everything claimed as associated with Sri Ram in the suit filed by Sri Ram through next friend. The concepts projected by the Akhara were closer to the Sunni Board of Wakf than to Sri Ram. According to media, the Akhara would like to assist the VHP in constructing Sri Ram temple at the site; but to what extent they really want this to happen is a moot question. 

Sri Ram’s birthplace, in any case, could be held to be the circumambulation area (Parikrama) which was found by Tieffenthaler in 1770-80s, by Amin Gopal Sahai in 1885 suit and by Pleader-Commissioner Shiv Shankar Lal in 1950. The Parikrama through all this period enveloped the whole of masjid and more. Parikrama is a universal appendage to every Hindu temple and no Puja of the deity is complete without performing circumambulation; the Hindu Dharmashastra treats Parikrama to be an integral part of the deity. The Law fully recognises that a Hindu deity is not a ‘property’ but is a ‘person’ while a mosque is a property, not a person, that a ‘deity’ never dies but ‘property’ is destructible.

SEPTEMBER 30, 2010 was a red letter day when a three-Judge Special Bench of the Allahabad High Court at Lucknow Bench (consisting of Justices US Khan, Sudhir Agarwal and Dharam Veer Sharma) returned a unanimous verdict that the birthplace of Bhagwan Sri Ram is within the site at Ayodhya where the Babri Masjid was erected. In 1528 Mir Baqi, an army Commander of Babur who had invaded India for the 5th time and defeated Ibrahim Lodi, the ruler at Delhi Sultanate in 1526, erected the masjid. 

Even as Ayodhya went ecstatic with celebrations including illuminations at every house on return of Sri Ram after killing demon king Ravan and other evil forces in Lanka, so also it is time to celebrate this year’s Deepavali with zeal full of joy. And yet, it is not a ‘return’; He is recognised to have been there always. 

But the joy is not unmixed. The Nirmohi Akhara whose suit stands dismissed by the Court had been hostile to Bhagwan Sri Ram and His birthplace as a deity; they claimed that the Akhara was the ‘owner’ of everything claimed as associated with Sri Ram in the suit filed by Sri Ram through next friend. The concepts projected by the Akhara were closer to the Sunni Board of Wakf than to Sri Ram. According to media, the Akhara would like to assist the VHP in constructing Sri Ram temple at the site; but to what extent they really want this to happen is a moot question. 

The Sunni Board’s suit too was dismissed; but they are unhappy and have announced their intention to appeal to the Supreme Court. Sri Ram’s suit was decreed in part in as much as the site of only the central dome of the Masjid was held to be His birthplace. In a considerably cautious and unexpected exercise of general power to render justice to parties under Order VII Rule 7 CPC, the Court ruled that the entire disputed area was ‘possessed’ jointly by the Nirmohi Akahara, the Muslims (through Sunni Board) and the Hindus (through Bhagwan Sri Ram), hence jointly ‘owned’ by them. I may call it a valiant effort to generate peace amongst the contenders for centuries. Thus, each is adjudged to own 1/3rd share in the entire disputed area with the proviso that Sri Ram shall hold the ‘Birthplace’ exclusively, Nirmohi Akhara shall hold Ram Chabutra and Sita Rasoi exclusively within their 1/3rd share each, while Sunni Board will hold 1/3rd share to be demarcated after exclusion of portions exclusively so adjudged. It is plain enough that each party could have grievance over Court’s dispensation; it has to be seen how they actually react. 

From Sunni Board’s Muslim point of view, the entire structure of the masjid is a holy place for offering namaz, hence they should have got it. From Bhagwan Sri Ram’s Hindu point of view the entire disputed area (which includes the masjid, Sri Ram Chabutra and Sita Rasoi), is Sri Ram’s birthplace, hence constitutes a deity as known to Hindu Dharmashastra Law which alone governs His rights in the absence of any statutory provision governing rights, liabilities and antecedents of the deity. From Nirmohi Akhara’s point of view the Akhara is the owner of the entire disputed area for which it is also entitled to function as Sarbarakar. 

An important aspect is the pre-existence of a temple which was demolished and the masjid erected over it. The Court found pre-existence of temple, but did not find that it was demolished and masjid erected over it holding, nevertheless, that some of temple’s material was used in the erection of the masjid. It is admitted by all, including Sunni Board, that a masjid cannot be erected over a property which does not belong to the person who builds it. In Dr Ismail Farooqui’s case, Supreme Court noticed an admission of Muslim leaders during negotiations, sponsored by Narasimha Rao’s Central Government, recorded in the White Paper prelude to enactment of Acquisition Act of 1993 after 6.12.1992-demolition event, that if a temple is held to have pre-existed at the site of masjid, Muslims would give up the claim of disputed area. Some of the prominent witnesses of the Sunni Board in the suits too have admitted this position under Islam. The Holy Quran prohibits usurpation of another’s property by unjust means; it further commands: Fight for the sake of Allah those who fight against you, but do not be aggressive. Allah do not love the aggressors. The high Islamic authority of Tauzihul-masayal published by Darul-Quranul-Karim, Iran lays down that saying Namaz at such place is batil (false/illegal) which is Ghasbi (taken forcibly). Demolition or no demolition, after all the site did not belong to Babar or Mir Baqi, and since the temple did exist, erection of Masjid at that site cannot be lawful. Under civilised law, a person owning a property has rights not only on the surface but also into the interior of the earth and in the space above. The masjid, thus, would be ab initio void and namaz offered there would be illegal. The Supreme Court, of course, is the final authority in the matter. 

The media has projected considerable misunderstanding of the High Court judgment by asserting that it is based on faith as opposed to legal facts and violates secularism. This impression results from ignorance of the true legal position. Faith is recognised to be a fact in Indian Evidence Act. Under Section 3, ‘fact’ includes not only anything perceived by senses but also any mental condition of which a man is conscious; faith is a state of mind of a person. Indeed, under that very Section, the Court considers a fact to be proved when it believes the fact to exist or that a prudent man acts on a supposition that it exists. This too is an angle of faith. So far as religion is concerned, Article 25 of the Constitution affirms it to be a Fundamental Right whether the media likes it or not. There are many axioms of geometry and physics on which most of the modern sciences are based, but they are beyond proof through senses. So the misconception of the High Court judgement being based on ‘faith’ must go. 

The High Court judgement gives an opportunity to parties to settle the matter amicably during appeal in Supreme Court if not earlier for shortage of prescribed period of limitation to file the appeal. The opportunity of having temple and masjid side by side in the same premises was lost by Muslims when they opposed Mahant Raghubar Das Suit of 1885 for permission to erect a temple over the Ram Chabutra - if one had been erected at that time, the conflict would not have continued. Perhaps, it may be resolved now if Muslims agree to build a masjid at some distance away from Ramjanmabhoomi, the disputed area. After all, Sri Ram’s birthplace, in any case, could be held to be the circumambulation area (Parikrama) which was found by Tieffenthaler in 1770-80s, by Amin Gopal Sahai in 1885 suit and by Pleader-Commissioner Shiv Shankar Lal in 1950. The Parikrama through all this period enveloped the whole of masjid and more. Parikrama is a universal appendage to every Hindu temple and no Puja of the deity is complete without performing circumambulation; the Hindu Dharmashastra treats Parikrama to be an integral part of the deity. The Law fully recognises that a Hindu deity is not a ‘property’ but is a ‘person’ while a mosque is a property, not a person, that a ‘deity’ never dies but ‘property’ is destructible. 

It would be in the fitness of things if the Muslims give up their claim to disputed area and Hindus agree to their constructing a Masjid at some distance from there and both the Nirmohi Akhara and Bhagwan Sri Ram agree to erect a temple in the disputed area under a proper deed of trust in which rights of the Hindu society and worshippers are fully secured; they should need nobody’s permission to worship (as maintained by the Nirmohi Akhara). This will bring a permanent peace and goodwill between Hindus and Muslims of India and, may be, in the entire Muslim community round the World. It would be excellent if Hindus and Muslims help each other in constructing masjid and temple respectively. Both being Indians, they should live like brothers. May Bhagwan Sri Ram and Allah bless all.

By arrangement with Organiser, New Delhi

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