By Tahir Mahmood,
“Ignorance of law is no excuse” is a universally recognized principle of administration of justice. Veteran jurist-judge of India VR Krishna Iyer once sarcastically suffixed it with “except for the lower courts.” He was commenting on frequent instances of miscarriage of justice in lower judiciary. The controversial Lucknow judgment on the Ayodhya dispute indicates that established principles of law and justice can at times be ignored, for whatever considerations, also by a higher court.
One of the primary issues framed in the title suits before the Lucknow bench was “Is the property in suit the site of Janam Bhumi of Sri Ram Chandraji?” Did it behove a modern court of justice to agree to adjudicate on the factual accuracy of a claim regarding the exact birthplace of a pre-historic religious figure? In the fitness of things, this plea should have been gracefully dismissed by the court in limine stressing that it was not a court’s job to give a decision on such a conspicuously non-legal issue. In all common law jurisdictions, including India, a higher court’s decision becomes precedent for lower courts, and the one set up by the Lucknow bench is fraught with disastrous possibilities. A court may some day be asked to adjudicate upon the differences between the Christians and Muslims as to which son of Abraham, Isaac or Ishmael, was to be sacrificed by his father in response to a divine call. The ancient footprints on Adam’s Bridge in Sri Lanka are of the first Prophet, Adam, according to the Muslims and of Mahatma Buddha according to his followers. Can, then, the judiciary of the island state agree to decide whose belief is correct? There are hundreds of such controversies among the followers of various religions, but should a modern-day court assume the mantle of a theological arbiter to settle people’s differences on any such legend?
Photo by www.showmixx.com
But for the preliminary “finding” that the central dome of the demolished Babri mosque was precisely Sri Ram’s birth spot, the tenor of the Lucknow verdict could have been different. Paradoxically, what had begun as a title suit ended up with a decree of partition — the court offering suo motu what none of the parties had ever asked for. May be, the court was worried about the possible communal repercussions of its judgment had it been based purely on legal precepts. The judicial anxiety in this regard may be understandable but the jurisprudential tenability of the decision is not beyond reproach.
Nobody seems to be happy with the dispute-settlement modality the court has offered, absolutely unexpectedly, in the garb of a judicial decision — all parties are planning to go in appeal to the apex court of the country. This is a routine course of action which disgruntled parties to any court case would resort to, but is there a ray of hope for anyone in this appeal? If the appellate court is to substantially differ from the Lucknow judgment it will have to reconsider many judicial decisions of the past. In 1989 when the shilapoojan procession was marching to Ayodhya for the planned shilanyas, the Supreme Court was petitioned to stop it but the court had refused to step in, snubbing the counsel of one of the petitioners, eminent lawyer-judge of the time VM Tarkunde, for asking the court to unduly interfere with an essential practice of Hindu religion. What would then be the basis now for the court to take a different stand on the uninterrupted continuation of worship in the makeshift temple at the disputed site since the demolition of the mosque eighteen years ago?
There is a settled law that a Hindu deity is a juristic person having certain vested rights, while a mosque is not – and this is a distinction that makes a hell of a difference in judicial approaches towards the two. As regards the “once a mosque always a mosque” claim of the Muslims, it was decided long ago in 1940 by the Privy Council (then our apex court) that “wakf property may be lost by adverse possession.” Prominently displayed in DF Mulla’s Principles of Mahomedan Law, the ruling – handed down in an appeal against the Lahore High Court’s decision in the famous Masjid Shahid Ganj case in which too an ancient mosque in the city had been demolished in a mob frenzy and the Muslims were demanding possession of the land – remains the law of the land till date. The Council had upheld High Court’s assertion that “the view that once a consecrated mosque always remains a place of worship as a mosque is not the Mohammedan law of India as approved by the Indian courts.” In its judgment in the Ismail Faruqi case of 1994 (challenging acquisition of disputed land in Ayodhya by the central government) the Supreme Court cited this observation of the Lahore court and its later approval by the Privy Council. Not expressing an iota of disagreement with the 70-year old ruling, the court rather fortified it with a comment that “mosque is not an essential practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in the open.” What new jurisprudential principles are, then, perceived to be rolling in before the apex court prompting it to pave the way for reconstruction of the demolished mosque?
The only purpose an appeal to the Supreme Court may serve is to diplomatically avoid execution of a non-executable judicial decision. Tactically, it may be a boon for all those votaries of communal politics who want to keep the Ayodhya issue alive for calculated gains. All said and done, one may still ask that if a solution to the imbroglio by mutual settlement or political will is yet not in sight what can be the alternative to the strategy of throwing the ball into the court of the Nation’s apex court?
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The author is Professor of Law & former Chair of National Minorities Commission.
Source: The Milli Gazette, 1-15 December 2010