Ayodhya Review Petition
Ayodhya Review Petition
The Petitioners have filed a review Petition as they are aggrieved with this
Hon’ble Court’s Final Judgement and Order dated 09.11.2019 passed by the
Hon’ble Supreme Court of India in M Siddiq (D) Thr Lrs Versus Mahant
Suresh Das & Ors whereby the Hon’ble Supreme Court was pleased to grant
the following order:
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs is
held to be within limitation. The judgment of the High Court holding Suit 4 to
be barred by limitation is reversed; and
(i) The Central Government shall, within a period of three months from the
date of this judgment, formulate a scheme pursuant to the powers vested in
it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya Act
1993. The scheme shall envisage the setting up of a trust with a Board of
Trustees or any other appropriate body under Section 6. The scheme to be
framed by the Central Government shall make necessary provisions in regard
to the functioning of the trust or body including on matters relating to the
management of the trust, the powers of the trustees including the
construction of a temple and all necessary, incidental and supplemental
matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the
Board of Trustees of the Trust or to the body so constituted. The Central
Government will be at liberty to make suitable provisions in respect of the
rest of the acquired land by handing it over to the Trust or body for
management and development in terms of the scheme framed in accordance
with the above directions; and
(iii) Possession of the disputed property shall continue to vest in the
statutory receiver under the Central Government, untill in exercise of its
jurisdiction under Section 6 of the Ayodhya Act of 1993, a notification is
issued vesting the property in the trust or other body.
3 (i) Simultaneously, with the handing over of the disputed property to the
Trust or body under clause 2 above, a suitable plot of land admeasuring 5
acres shall be handed over to the Sunni Central Waqf Board, the plaintiff in
Suit 4.
(a) The Central Government out of the land acquired under the Ayodhya Act
1993; or
(iii) The Sunni Central Waqf Board would be at liberty, on the allotment of
the land to take all necessary steps for the construction of a mosque on the
land so allotted together with other associated facilities;
(iv) Suit 4 shall stand decreed to this extent in terms of the above directions;
and
(v) The directions for the allotment of land to the Sunni Central Waqf Board
in Suit 4 are issued in pursuance of the powers vested in this Court under
Article 142 of the Constitution.
4) In exercise of the powers vested in this Court under Article 142 of the
Constitution, we direct that in the scheme to be framed by the Central
Government, appropriate representation may be given in the Trust or body,
to the Nirmohi Akhara in such manner as the Central Government deems fit.
806. All the appeals shall stand disposed of in the above terms. Parties are
left to bear their own costs.”
While the Petitioners are not a party to the original suit or any other litigation
thereafter, but have found that the Judgment’s tenor, language and
operative orders have expanded the scope of the SLP from a Title Dispute to
a battle about the “faith” of the Hindus and the Muslims. Since it is a matter
now between communities, the Petitioners who belong to diverse faiths
within the Country are aggrieved by the decision which has a direct impact
on the syncretic culture of the country and its secular fabric envisaged in the
Constitution.
It is also important to note that while the Court has listed many issues on
which the Court thought fit to pass reasoned orders, the same are not
reflected in the text of the judgement which simply skips over important
issues. Moreover, there is also a problem with some of the issues which are
irrelevant which do not and should impact the nature of a Civil suit for title.
The Court in the conclusion on title of its judgment, weighed the proof
adduced by both parties showing their worship on the disputed land over the
centuries. However, when coming to a decision, it unfairly placed a higher
value on one side to the dispute over another. The balance of probabilities
was erroneously said to be in favour of the Hindus, based on the fact that
they had proved to be worshipping in the outer courtyard since 1857, but
also proved to worship in the inner courtyard prior to 1857, thereby stating
that the Muslim parties had failed to prove exclusive possession of the inner
courtyard. However, the Court failed to appreciate that neither parties had
proved exclusive ownership of the land. Therefore, by providing exclusive
ownership of the disputed land to the Hindu worshippers, and completely
excluding Muslim worshippers from access to the land, the faith of one of the
communities was consequently regarded higher than the other, thereby
violating the secular principle embedded in the Constitution of India.
What the judgement does in effect is 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 of the 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 first criminal act which interrupted the worship in the
mosque was the surreptitious and illegal introduction of the Ram idol in the
mosque in 1949. The second was the celebratory demolition of the mosque
in 1992 by a fevered mob, cheered by leaders like Lal Krishna Advani. The
third was the violation of court orders prohibiting any alteration of the status
quo of the site, by building a makeshift Ram Temple where the demolished
mosque stood, during the 36 hours which followed the demolition of the
mosque. The court does acknowledge in its judgment the wanton
debasement of the law in the first two cases, yet rewards the party
responsible for this, for their multiple assaults on the law, the constitution
and the Supreme Court. It also overlooks that these crimes took the toll of
hundreds of innocent lives in communal violence that rocked the country
from 1989 to early 1993, and that their unhealed wounds continue to tear
apart the country decades later. The Court recognized that the placing of
idols inside the mosque in 1949 and its repeated desecration, including the
destruction of the Masjid on 6 December 1992, was illegal and violated the
constitutional ideal of secularism. The Court categorically ruling in favour of
the so-called Hindu parties was nothing but providing legal recognition of
these illegal acts. Because of this, the Court’s decision is dangerously
complicit in the violation of constitutional principles.
It is for this reason that the Petitioners are praying that the Review Petition
of this magnitude which has the ability to impact the Constitutional Values
and morality need to be reviewed by the Full Bench of the Supreme Court.
1. PRABHAT PATNAIK
S/O LATE SH. PRANANATH PATNAIK
R/O 124, NATIONAL MEDIA CENTRE CAMPUS,
NH-8, SHANKAR CHOWK GURGAON,
HARYANA- 122010
2. IRFAN HABIB
S/O MOHAMAD HABIB
R/O BADAR BAGH, CIVIL LINES,
ALIGARH-202001
3. APOORVANAND
A-2/4 MAURICE NAGAR,
NEAR DAULAT RAM COLLEGE,
DELHI-110007
4. NEERA CHANDOKE
D/O D.S. SAWHNEY
R/O C-516 DEFENCE COLONY,
NEW DELHI-110024
5. DEB MUKHERJEE
S/O LATE A. MUKHARJI
R/O C-71, IFS APPARTMENT
MAYUR VIHAR, DELHI-110091
6. TANIKA SARKAR
250 MANDAKINI ENCLAVE
NEW DELHI-110 019
7. MADHU BHADURI
D/O LATE RAGHU RAJ
R/O A-12, IFS APPARTMENT,
MAYUR VIHAR, DELHI-110091
8. HARSH MANDER
S/O HARMANDER SINGH
R/O C6/6233, GROUND FLOOR VASANT KUNJ,
P.O. & P.S.- VASANT KUNJ,
NEW DELHI
9. JAYATI GHOSH
52 DAKSHINAPURAM,
JAWAHARLAL NEHRU UNIVERSITY,
NEW DELHI 110067
33. RAMESH N
S/O R. NADIMUTHU
R/O 22, SHIVAJI NAGAR,NAIK KAMARAJ SALAI,
THANJAVUR-613001 (T.N)
VERSUS
3. NIRMOHI AKHARA,
THROUGH MAHANT RAMESHWAR DAS,
MAHANT SARBARAKAR,
R/O. NIRMOHI AKHARA, MOHALLA RAM
GHAT, CITY AYODHYA,
DISTRICT FAIZABAD, UTTAR PRADESH
9. PRESIDENT,
ALL INDIA HINDU MAHA SABHA,
READ ROAD, NEW DELHI
10. PRESIDENT,
ARYA MAHA PRADESHIK SABHA,
BALDAN BHAWAN,
SHRADHANAND BAZAR, DELHI
-VERSUS-
2. NIRMOHI AKHARA,
THROUGH MAHANT RAMESHWAR DAS,
MAHANT SARBARAKAR, R/O. NIRMOHI AKHARA,
MOHALLA RAM GHAT, CITY AYODHYA,
DISTRICT FAIZABAD, UTTAR PRADESH
4. THE COLLECTOR,
FAIZABAD, UTTAR PRADESH
8. PRESIDENT,
ALL INDIA HINDU MAHA SABHA,
READ ROAD, NEW DELHI
9. PRESIDENT,
ARYA MAHA PRADESHIK SABHA,
BALDAN BHAWAN,
SHRADHANAND BAZAR, DELHI.
10. PRESIDENT,
ALL INDIA SANATAN DHARAM SABHA,
SHOP NO.35, GEETA BHAWAN,
GROUND FLOOR, A-BLOCK, KIRTI NAGAR, DELHI
18. MISBAHUDDEEN,
S/O. LATE SHRI ZIAUDDIN,
R/O. MOHALLA ANGOORI BAGH, AWADH CITY,
DISTRICT FAIZABAD, UTTAR PRADESH
1. The present Review Petition is being filed against the Final Judgement
and Order dated 09.11.2019 passed by the Hon’ble Supreme Court of
India in M Siddiq (D) Thr Lrs Versus Mahant Suresh Das & Ors whereby
the Hon’ble Supreme Court was pleased to grant the following order:
(v) The directions for the allotment of land to the Sunni Central Waqf
Board in Suit 4 are issued in pursuance of the powers vested in this
Court under Article 142 of the Constitution.
4) In exercise of the powers vested in this Court under Article 142 of
the Constitution, we direct that in the scheme to be framed by the
Central Government, appropriate representation may be given in the
Trust or body, to the Nirmohi Akhara in such manner as the Central
Government deems fit.
5) The right of the plaintiff in Suit 1 to worship at the disputed
property is affirmed subject to any restrictions imposed by the relevant
authorities with respect to the maintenance of peace and order and
the performance of orderly worship.
806. All the appeals shall stand disposed of in the above terms. Parties
are left to bear their own costs.”
(The Impugned Judgement is annexed herewith as Annexure P -1)
2. The Petitioners are not the original parties to the suit; however, they are
deeply aggrieved by the judgement passed by this Hon’ble Court. The
petitioners in this review petition, belong to various Indian faith
traditions (including Hindu, Muslim, Sikh, Christian, Buddhist, Jain, apart
from people with atheist and agnostic convictions), and are bound by
their shared profound commitment to the morality of the Indian
constitution.
3. The Petitioners are of the firm belief that the judgement passed by this
Hon’ble Court errs in both fact and law, and through this Review Petition
the Petitioners seek to bring to the fore these errors apparent and assist
the court in rectifying these errors.
8. There was grave inconsistency in the Court claiming that there was no
evidence of 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.
9. In the opening paragraph of the judgment, the court states that the
‘Hindu community’ believes that the disputed site was ‘the birthplace of
Lord Ram, the incarnation of Lord Vishnu’. This is simply not true. Some
Hindus may 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 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’ that Ram was born at the site of land under the central dome of
the demolished mosque over the ‘faith and belief’ of innumerable other
Hindus that Ram was born elsewhere?
10. Professor Romila Thapar has opined that “ there was some confusion
about the location of Ayodhya. Hindu texts have spoken of it as being
on the banks of the Sarayu river. But Buddhist texts refer to it on the
banks of the Ganges. So, is it a mistake on the part of the Buddhist
texts? Which is unlikely because Ayodhya was a big enough town for
them to know whether it was on the Ganges or on the Sarayu. And
Ayodhya was made into an important city with trade links. Now in the
Gupta period there is evidence that they were looking for Ayodhya, and
the city of Saket which was on the Sarayu was designated as being
Ayodhya. This was done on the basis of some early references to Saket
and Ayodhya being very close together - to Saket being almost a suburb
of Ayodhya. But, the evidence is clear that there was concern about the
location of Saket and Ayodhya and Saket was henceforth from the
Gupta period referred to as Ayodhya. This is a bit of historical
clarification that might be of some interest’.
12. Despite having reiterated that the case was to be decided purely as a
property suit between the parties, the Court framed the dispute from
the very first paragraph of its judgment to be one between two religious
communities. Unfortunately, as stated earlier, throughout the course of
the judgment, 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 are homogenous communities who
share the views of the respective parties to the dispute. In doing so the
Court has violated the secular framework of the Constitution of India. As
constitution-minded persons from various faith and no-faith
backgrounds, the petitioners take serious objection to the Court treating
the case to involve their religious faith and identity.
13. The Court on 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
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, Hindus were awarded full
title. This reasoning of the court was legally deficient and manifestly
unjust.
16. It was held by the Court that the ASI report established that the
Babri Masjid was not built on empty land, however they were not
able to establish the nature of the underlying structure. There was no
evidence of the underlying structure being a Ram Mandir. But by
allowing the conversation to be about what lies below, it further exposes
other religious structures as many places in the country which may
have been destroyed and rebuilt many times under different
dynasties. This section of the judgement contravenes the constitutional
premise that there are no sound legal and constitutional grounds
to try to correct the alleged, possible and established wrongs of history
in the 21st century. If there is, who will decide where this will end?
Will these ‘correctives’ apply to other disputed places of worship? And
further, how far in history should we go? And why we should select
some histories and not others to rectify? Even more importantly, what in
our constitution and law justifies these judicial choices?
17. Furthermore, the very fact, as the Court has noted, is that inter-
community discord and riots had continuously occurred. The Court
itself notes that, “The disputed site has been a flash point of
continued conflagration over decades. In 1856-57, riots broke out
between Hindus and Muslims in the vicinity of the structure.” As the
Court accepts, these incidents led to the British building a grill-brick
fence, conclusively suggesting that there was a continuing Muslim
worship at the disputed site, or at least in the inner compound.
“The principle of public policy is this; ex dolo malo non oritur actio. No
Court will lend its aid to a man who founds his cause of action upon an
immoral or an illegal act. If, from the plaintiff's own stating or
otherwise, the cause of action appears to arise ex turpi causa, or the
transgression of a positive law of this country, there the Court says he
has no right to be assisted. It is upon that ground the Court goes; not
for the sake of the defendant, but because they will not lend their aid
to such a plaintiff. So if the plaintiff and defendant were to change
sides, and the defendant was to bring his action against the plaintiff,
the latter would then have the advantage of it; for where both are
equally in fault, potior est conditio defendentis.” (See also Kedar Nath
Motani v Prahlad Rai and Ors., AIR 1960 SC 213 at para 14; Immani
Appa Rao and Ors. V Gollapalli Ramalingamurthi and Ors., AIR 1962
SC 370).
24. The court thus errs in providing justice for the act of the Masjid
destruction that was allegedly done in the name of unshakable faith in
Ram Janmabhoomi. It condemns yet rewards the actions of the said
Hindu outfits by taking it upon themselves to direct the construction of
the very thing, that the Masjid was desecrated and demolished for.
25. That this Hon’ble Court failed to consider the settled principle of law i.e.
commodum ex injuria sua nemo habere debet – a wrongdoer should not
be enabled by law to take any advantage from his actions. By
overlooking the impact of the wanton acts of trespass and destruction,
upon the claim of the Hindu parties to the dispute, the court in effect
legitimizes majoritarian mob justice as a violent but acceptable outlet of
communal sentiment. The observations of the court condemning such
acts are nullified by the final directions given, made possible only due to
the abovesaid illegal actions of desecration, trespass and demolition of
the masjid, now valorized as a necessary measure to build the Ram
Temple and restore Hindu integrity against Muslim invaders. By framing
these questions of law along with feudal communal concerns of a
movement unduly influenced by politics, this court has contributed to
undoing the secular ethos of the country in public imagination.
26. This Hon’ble Court has disregarded the settled and basic principle of
law, that no person should not be able to take advantage of his/her
wrongful actions. Actions such as damaging the domes in 1934,
desecrating the Babri masjid in 1949 and the demolition of the Babri
Masjid in 1992, were calculated illegal acts aimed toward challenging
the rule of law and the authority of this court by inflaming irrational
communal passions regarding the alleged existence of the Ram Mandir.
However, this Court, while condemning the said challenge to its
authority, and rejecting all their prayers on technical grounds, fails to
hold the responsible parties accountable for their actions and instead
rewards their ill thought sentiment with a government sanctioned plan,
to complete the work they started.
27. That the Orders passed by this Hon’ble Court have allowed the
concerned militant Hindutva outfits to take advantage of their illegal
actions such as placing the idol under the central dome on the
intervening night of December 23/24 1949 which were done to further
manufacture a cause of action. The Hon’ble Court fails to consider this
act in light of the settled principle of law i.e. ex turpis causa non oritur
actio (from a dishonorable cause an action does not arise). (Please See
Narayanamma v Govindappa, (2019) SCCOnline SC 1260) .The
resulting cause of action of the parties purporting to represent Hindu
interests has been tainted with the illegality of the above mentioned
acts, thus violating the basic principle of law that any party seeking
relief from this court must approach it with clean hands. The judgment
has thus failed to consider, much less adjudicate upon the impact that
the attempts to communalize this matter has on the claim of the parties
purporting to represent Hindu interests. The repeated violations of the
status quo and the orders of this court, were a product of the irrational
communal passions that were drummed up by parties with vested
interests, who sought to attribute their illegal actions to unshakable faith
in Lord Ram, which they clearly placed above the authority of the
Supreme Court. Even though the judgment dated 9 th November,
admonishes these parties for their actions, that violate several
fundamental constitutional tenants, the court has not placed any
weightage upon its own observations and proceeded to not only
condone, but actually reward the actions of these parties who failed to
approach the court with clean hands.
28. While the freedom to practice one’s religion is a fundamental right
enshrined in the Constitution of India, there continues to be a rather
limited understanding of its place in the constitutional and legal
framework of the country as well as the reasonable restrictions placed
upon it. Any attempts to manipulate these traditions of social bargains
with religious deities, through claims of building the Ram Mandir, for the
purpose for claiming superiority over another community or for the
purposes of garnering votes, violate constitutional norms and should be
curbed at its very root. If allowed to fester, they take the form of
irrational communal sentiments or attempts to subvert the judicial
process. However, this court has failed to consider that the Ram Mandir
- Babri Masjid issue has been used as socio political fodder for decades,
by parties and organziations such as the BJP, RSS, VHP, the Bajrang Dal
and other individuals purporting to represent Hindu interests, for vote
bank politics and to increase enmity between Hindu and Muslim
communities. The matter was communalized by these parties to the
extent that the current ruling disposition of the Bharatiyta Janata Party
promised the construction of the Ram Mandir in its manifesto leading up
to the 2019 Lok Sabha Elections thereby tacitly disrespecting the
jurisdiction of the Hon’ble Supreme Court in deciding whether or not a
Ram Mandir could be built at the site on which the Babri Masjid had
stood; thereby attempting to subvert and unduly influence the ongoing
judicial process regarding the same. The faith-based claim eventually
sought to reduce a religious deity revered by millions to a juristic
personality, for the purposes of claiming title to a small piece of land.
Such a movement could not have been sustained, without the
concerned parties arousing irrational communal passions, by projecting
the alleged destruction of the Ram Mandir and the construction of the
Babri Masjid as a sign of the Muslim minority dominance of the Hindu
majority population of India, thereby trying to gain legal sanction for
populist majoritarian sentiment. Unfortunately, despite the fact that the
said parties failed to approach this court with clean hands, this Hon’ble
court has not only entertained but in effect granted their pleas with a
few amendments.
Violation of Article 15
29. The Supreme Court has given more importance to the faith of one
community over the faith of another community which violates Article 15
of the Constitution which says that the State shall not differentiate on
the basis of religion. The Supreme Court has erred by placing higher
value on the “faith” of the Hindus while dismissing the practice of “faith”
by the Muslims. To justify this, the Court has given higher credence to
the “faith” of Hindus which have not been asked to justify their faith or
produce evidence of the same while the Muslim parties have been asked
to provide proof of practice, belief and ownership.
32. The faith of the community cannot override the faith of another
community and the practices of two faiths cannot and should not be
compared as the expression of that faith can also differ. By placing a
higher value to the faith of the Hindus who have essentially been given
the benefit of assumption merely by stating that their faith is in that
area as done by the Hindus. Interestingly, this belief is not without
doubt (as has been expressed by eminent historians such as Professor
Romila Thapar and Professor Irfan Habib, mentioned above inter alia.)
The historical documents that have been relied upon by this Hon’ble
Court also do not completely dismiss the faith the Muslims or contradict
the presence of the Mosque in that period of history. Therefore, even if
historicity has to be looked at for this decision it cannot be discounted
from the lens of Constitutional principles of equality and freedom of
religion
Differential standards of proof
33. The Court in the conclusion on title of its judgment, weighed the proof
adduced by both parties showing their worship on the disputed land
over the centuries. However, when coming to a decision, it unfairly
placed a higher value on one side to the dispute over another. The
balance of probabilities was erroneously said to be in favour of the
Hindus, based on the fact that they had proved to be worshipping in the
outer courtyard since 1857, but also proved to worship in the inner
courtyard prior to 1857, thereby stating that the Muslim parties had
failed to prove exclusive possession of the inner courtyard. However,
the Court failed to appreciate that neither parties had proved exclusive
ownership of the land. Therefore, by providing exclusive ownership of
the disputed land to the Hindu worshippers, and completely excluding
Muslim worshippers from access to the land, the faith of one of the
communities was consequently regarded higher than the other, thereby
violating the secular principle embedded in the Constitution of India.
35. There were certain inconsistencies on the part of the Court, by coming
to this conclusion. The Court, on the one hand, agreed that the Babri
Masjid was constructed in 1528 under the command of Babur, however
it was held that there was no account by the Muslims of possession, use
or offer of namaz in the mosque between the date of construction and
1856-57. It was held by the Court that for a period of over 325 years
which elapsed since the date of construction of the mosque until the
setting up of a grill brick wall by the British, the Muslims had not
adduced evidence to establish the exercise of possessory control over
the disputed site.
36. The questioning of the use of the mosque from the time of its
construction till the time the British constructed the wall in 1857,
dividing the areas of worship between the two communities, is
manifestly incorrect. Judicial notice under Section 57 of the Indian
Evidence Act ought to have been taken of the fact that the existence of
a mosque meant that prayers were held within the mosque, unless
proved to the contrary. The belief that the mosque that was built on the
orders of a Mughal ruler, historically believed to be a devout Muslim, in
the time of the sovereign rule of the Mughals, was not used for offering
prayers would have been a departure from the norm. To use the phrase
adopted by the Hon’ble Court in this ruling, the ‘preponderance of
probability’ was certainly that there was uninterrupted prayers in the
Babri Masjid from the time of its construction to 1857. No formal proof
ought to have been required for this under Section 56 of the Indian
Evidence Act. By asking for proof of worship in this time, the Court was
shutting the judicial eye to the existence of facts and matters in a sense
as an insult to common sense, thereby reducing the judicial process to a
meaningless and wasteful ritual, as was mentioned in the case of Onkar
Nath v The Delhi Administration. [1977 AIR 1108].
37. In the case of Onkar Nath v The Delhi Administration [1977 AIR
1108] one of the points urged before the Supreme Court of India was
whether the courts were justified in taking judicial notice of the fact that
on the date when the appellants delivered their speeches, a railway
strike was imminent and that such strike was in fact launched on May 8,
1974. It was held as follows:
“The list of facts mentioned in Section 57 of which the Court can take
judicial notice is not exhaustive and indeed the purpose of the section
is to provide that the Court shall take judicial notice of certain facts
rather than exhaust the category of facts of which the Court may in
appropriate cases take judicial notice. Recognition of facts without
formal proof is a matter of expediency and no one has ever questioned
the need and wisdom of accepting the existence of matters which are
unquestionably within public knowledge. (See Taylor, 11th Edn., pp. 3-
12; Wigmore, Section 2571, footnote; Stephen's Digest, notes to
Article 58; Whitley Stokes' Anglo-Indian Codes, Vol. II, p. 887.)
Shutting the judicial eye to the existence of such facts and matters is
in a sense an insult to commonsense and would tend to reduce the
judicial process to a meaningless and wasteful ritual. No court
therefore insists on formal proof, by evidence, of notorious facts of
history, past or present.”
39. The Court relied on ‘clear evidence’ of Hindu worship in the outer
courtyard, while they stated that with regard to the inner courtyard for
the Hindus there was evidence on a preponderance of probability that
the Hindus worshipped there, whereas Muslims have “ offered no
evidence to indicate that they were in exclusive possession of the inner
structure prior to 1857”. The Court held in its judgment that the Muslim
account of worship prior to 1856 was conspicuously silent as opposed to
the accounts of worship being offered by the Hindus. This is not in line
with the historical account provided by the Court of the communal riots
that took place in 1856-57 which resulted in the colonial administration
setting up a grill-brick wall to bring about a measure of peace between
the conflicting claims of the two communities. Communal riots caused
by the conflicting claims ought to have been enough proof that there
were issues raised by both communities regarding the offering of
prayers at the disputed site. The Court should have come to the
conclusion that this was enough to prove that the Muslims were offering
prayers prior to 1856-57.
40. The incongruity of reasoning of the judgment is clear from the fact that
the Court accepted that neither of the parties were able to claim
exclusive possession of the inner courtyard of the disputed site. Despite
this, the Court decided in favour of one of the parties over the other,
with no convincing reason for doing so. The Court clearly used
differential standards of proof for both parties. The Court ruling in
favour of one party in this scenario was without any legally reasonable
ground.
41. In order to come to the conclusion that it did, in favour of the Hindu
worshippers, the Court relied on accounts of travellers such as Joseph
Tieffenthaler, who visited the region in between 1743-1785 William
Finch, who visited the region in 1608-11 and Montgomery Martin, all of
whose findings were used to back the claim of the Hindu parties. While
their findings did indicate that Hindus believed Ayodhya was the
birthplace of Ram, and therefore a place of holy worship, the Court
failed to account for the equally valid presence of the Mosque of Babur
in Oudh all of the accounts of these travellers. The mention of the
mosque by the travellers, in the absence of mentioning that it was an
abandoned mosque, is enough to indicate that prayers were being
carried out there, thereby refuting the argument of the Court stating
that there was not enough evidence of worship prior to 1857.
42. Further, the Court agreed that there was an exclusion of Muslims from
worship and possession which took place on the intervening night
between 22/23 December 1949 when the mosque was desecrated by
the installation of Hindu idols. This was a gross violation of the sanctity
of the mosque, and ought to have been punished severely.
“The ouster of the Muslims on that occasion was not through any
lawful authority but through an act which was calculated to deprive
them of their place of worship. After the proceedings under Section
145 of CrPC 1898 were initiated and a receiver was appointed
following the attachment of the inner courtyard, worship of the Hindu
idols was permitted. During the pendency of the suits, the entire
structure of the mosque was brought down in a calculated act of
destroying a place of public worship. The Muslims have been wrongly
deprived of a mosque which had been constructed well over 450 years
ago.”
43. The Court acknowledged the wrongs done to the Muslims that
worshipped at the Babri Masjid by the Hindu worshippers that
desecrated the mosque. However, by rewarding it with the title suit and
erroneously offering the Muslim parties a compensation of 5 acres
elsewhere of land to the Sunni Central Waqf Board, the Court failed to
ensure that justice was done.
44. The Court claimed that there were indications that despite the division
by the colonial government of the disputed land, the Hindus continued
to worship from the inner courtyard. This claim was backed up by the
fact that in March 1861, Mohd Asgar and Rajjab Ali joined in
complaining against the erection of a chabutra without permission near
Babri Masjid, and other such instances where the Hindu worshippers
violated the sanctity of the Muslim place of worship. These were several
instances of attempted desecration of the place of worship of the
Muslims which the Court erroneously used as evidence of Hindu
worship, and ultimately in the conclusion to show that the inner
courtyard was being accessed by Hindus and therefore granting the
exclusive title to the Hindu parties.
47. This Court in its final conclusion, identifies the acts of 22/23 December,
1949, as the desecration of the mosque and holds that it was in
violation of the Muslim’s rights to worship in the mosque. However, the
claim made in the abovementioned statement incorrectly indicates that
the act of the desecration of the mosque was seen as a righteous
assertion of claim by the Hindu parties over the mosque area of
worship, thereby holding the faith of the Hindus over the desecration of
the mosque.
Constitutional Morality
48. The Constitution envisioned a role for the State within the framework of
Constitutional Morality to ensure that every branch would adhere to the
rule of law. The Court was envisioned as the custodian of the
Constitution responsible for protecting people from violations by other
branches and reinvesting the faith of the people that Constitutional
values shall not just be a dream but actionable for every person
including minorities.
49. This view has been expressed in Manoj Narula v. Union of India
[(2014) 9 SCC 1], held that:
“75. The principle of constitutional morality basically means to
bow down to the norms of the Constitution and not to act in a
manner which would become violative of the rule of law or
reflectible of action in an arbitrary manner. It actually works at
the fulcrum and guides as a laser beam in institution building.
The traditions and conventions have to grow to sustain the
value of such a morality. The democratic values survive and
become successful where the people at large and the persons in
charge of the institution are strictly guided by the constitutional
parameters without paving the path of deviancy and reflecting in
action the primary concern to maintain institutional integrity and
the requisite constitutional restraints. Commitment to the
Constitution is a facet of constitutional morality.”
52. In this context the decision of this Hon’ble Court which, despite the
caveats of the Hon’ble Court to the contrary, in effect gives primacy to
faith over Constitutional principles of justice, equality and non-
discrimination is jarring. The Supreme Court had the option of simply
deciding this narrowly as a title dispute over a small piece of land in the
small town of Ayodhya. But in actuality it was not simply a title dispute,
nor even a contest between a medieval mosque, now razed, with a
grand temple, still imagined. It was a dispute about what kind of
country this is and will be in the future, to whom does it belong, and on
what terms must people of different identities and beliefs live together
in this vast and teeming land. Since the case has critical bearing and
profound implications across generations of the upholding of many
fundamental rights, of equality, of life, and of freedom of worship, once
again every citizen of India has the right and indeed the duty to
intervene to seek steps of defend and uphold their constitutional rights,
and preserve the secular democratic character of the Indian Republic.
Judicial Overreach
53. Article 142 of the Constitution of India states that “The Supreme Court
in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision
in that behalf is so made, in such manner as the President may by order
prescribe.”
54. It has been held by the Supreme Court that an order which it makes
under Article 142 in order to do complete justice between the parties
must not only be consistent with the fundamental rights, guaranteed by
the Constitution but it cannot even be inconsistent with the substantive
provisions of the relevant statutory laws - Prem Chand vs Excise
Commissioner AIR 1963 SC 996, Kamala Devi vs Hem Prabha, AIR 1989
SC 1602, Union Carbide Corporation vs Union of India AIR 1992 SC 248,
N A Mohammed Kasim vs Sulochna AIR 1995 SC 1624, Delhi Electricity
Supply Undertaking vs Basanti Devi (1999) 8 SCC 229
55. In Part Q of the judgment, the Supreme Court has directed the Central
Government to vest the right, title and interest in a Trust as per section
6 and 7 of Acquisition of Certain Area at Ayodhya Act 1993 and
formulate a scheme. It further goes on to list out what the scheme must
entail and states that the said Trust would construct the temple as per
this scheme. This is in contravention of the Section 7(2) of the Act,
which states that
56. The Central Government has also been directed to give "appropriate
representation" to Nirmohi Akhara in the management of the Trust,
despite dismissing Nirmohi Akhara’s claim to the title. In addition to
being vague, it is clear overreach of the power of the Supreme Court
under Article 142.
57. Direction to construct a temple and mandating inclusion of Nirmohi
Akhara which is a Hindu religious denomination is also against the
principle of secularism.
58. Article 142 gives very wide powers to the Supreme to do “complete
justice” but this power is supplementary in nature. But in this case,
Supreme Court has given a much wider interpretation of Article 142,
practically raising the provision to the status of a new source of
substantive power for itself. Eminent jurist M. P. Jain in his commentary,
Indian Constitution Law (Volume I, Seventh Edition [2018]) writes, “this
extraordinary power of the Court cannot be used, even with the width of
its amplitude to build a new edifice where none existed earlier, by
ignoring express statutory provisions dealing with a subject and thereby
achieve something indirectly which cannot be achieved directly.”
59. According to the Rule of Harmonious Construction of interpretation of
statutes an interpretation that makes the enactment a consistent whole
should be adopted. Therefore Article 142 should be read along with the
other aspects of the Constitution, like secularism and separation of
powers of the legislature, executive and the judiciary. Both of these are
also part of the basic structure of the Constitution as decided in S. R.
Bommai vs Union of India (AIR 1994 SC 1918) and Keshavananda Bharti
vs State of Kerala ((1973) 4 SCC 225)
60. The plenary jurisdiction under Article 142 is the residual source of power
which Supreme Court may draw upon as necessary only when it is just
and equitable to do so, and in particular to ensure the observance of the
due process of law, to do complete justice between the parties, while
administering justice according to law. In this case it is neither just nor
equitable for the highest court of a secular democracy to instruct the
government to build a temple on the site in question. It is even more
striking that while it directs the government to build a temple at the
disputed site, it gives no instructions to the government to rebuild the
mosque demolished at the disputed site through a grievous act of mass
crime which resulted in rioting around the country and the loss of an
estimated 2000 human lives.
61. In comparable democracies like South Africa too, judicial overreach is
held in disdain and the importance of courts not transgressing their
boundaries and overtaking the role of executive or legislature is
emphasized. Judge Davis of in the case of Mazibuko v The Speaker of
the National Assembly and Others (CCT 115/12) [2013] ZACC 28; 2013
(6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013) held that
THROUGH:
(PRASHANT BHUSHAN)
COUNSEL FOR THE PETITIONERS
DRAWN BY:
SUROOR MANDER, ANKITA RAMGOPAL,
ADITI SARASWAT, ADVOCATES
DRAWN ON 07.12.2019
FILED ON: 09.12.2019