Supreme Court can’t overlook the 1940 precedent: Privy Council order on Lahore’s Shahidganj Masjid

babri_masjid_demolitionBy Rajindar Sachar*

The suggestion of the Chief Justice of India to even act as a mediator in the pending Babri Masjid demolition   case showed his concern, but was a little odd considering that it has come at the instance of an inter-meddler, and without parties involved being before the Court – that is why it caused amongst the parties a certain concern.

In my view Babri Masjid demolition case is not a matter for compromise. This   case raises the deep constitutional concern regarding our constitution which clearly says India is a   secular republic.  I was in Geneva attending the UN Sub Human Rights Commission meeting when I was told the horrible news   that came on TV that Babri Masjid had been demolished and saw the gory speckle of BJP hoodlums climbing the Masjid and breaking it down.

The BJP government Chief Minister Kalyan Singh’s assurance to the Supreme Court that he would take full steps to prevent such a situation to happen was belied. The Supreme Court by a majority just accepted his apology instead of sending him to jail for the contempt of Court. But this was   nothing compared to the ominous conspiracy of Congress Prime Minister Narasima Rao, who suddenly   became inaccessible to senior journalists, his Home Secretary and even his colleagues.

I am also ashamed to admit the unworthy role of complicity of the judiciary which, in spite of the   injunction having been given since 1949 against public not to enter the area, did not proceed against the   public; even the higher judiciary did not intervene, rather it turned a blind eye. This was the time when the magnitude of danger should have been appreciated by all parties but was not.

The battle for secularism should have been joined with a singular determination of nipping the cancer   of communalism. But nothing was done. I then made a public statement that “Immediately the Government should have announced December 6, as a ‘National Repentance Day’ when people will fast and pray for unity and welfare of all the communities”.  But the non-BJP parties analyzed the situation as merely one of law and order and thus acquiesced in   this dastardly Act.

Whatever the past history, all the parties let the matter go to the Allahabad High Court to give a   decision. The High Court gave a decision with which both parties are aggrieved. The BJP is still   insisting that it would build a temple at the site where Masjid undoubtedly stood for over 500 years. Muslims cannot obviously agree to a shameful compromise on the sanctity of Masjid. The matter is already before the Supreme Court – it cannot run away from giving a decision which may not make everyone   happy. But then it is their constitutional duty and it has no other alternative.

I can\not foretell the   Supreme Court decision. But if past precedents are to prevail, then the case in favour of Muslims is   invincible. I say this on the precedence of the Shahidganj Masjid case (Lahore now in Pakistan) decided by   the Privy Council in 1940. The Supreme Court need not decide on merits whether Babri Masjid had been in existence where Ram Temple existed or not because that is of no consequence as it is not relevant to the decision of case. This is because, even if was, there is no denying that Babri Masjid has been in existence for 500 years.

Now it is obvious to the meanest intelligence that it is impossible to prove that the birthplace 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 the masjid was not built on a Ram Birthday place, then the Muslims get the land back and will be free to use it in any way, including the building of the mosque.

Alternatively even if it is held that there was a temple on the land of Babri Masjid, even with this   finding, the suit by the VHP/RSS has to be dismissed. Admittedly, Babri Masjid has been in existence for   over 500 years till it was demolished by goons of the VHP/RSS in 1992. Legally speaking, even then the   Sangh Parivar would have no right, even if a temple had been demolished to build 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 AD. But by 1762, the building   came under Sikh rule and was used as a gurdwara. It was only in 1935 that a suit was filed claiming the building was a mosque and should be returned to the Muslims. The Privy Council, while observing that “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and inviolability 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 that “the   property now in question having been possessed by Sikhs adversely to the waqf and to all interests   there under for more than 12 years, the right of the mutawali (caretaker) to possession for the purposes of the waqf came to an end under the Limitation Act”.

On the same parity of reasoning, even if a temple existed prior to the building of the masjid 500 years ago, the suit by the Hindu outfits like   Nirmal Akhara VHP / BJP etc has to fail. There is another reason why in such a situation, the suit will 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 a “murder most foul” and hence the murderer cannot be allowed to take the benefit of his own   dastardly deeds, whatever the factual position may be.

Of course it is the privilege of the Chief Justice of India to constitute the bench. One may however one   respectfully submit that it may be more reassuring if beach of seven judges or nine judges was to hear   the appeal.

*Veteran lawyer and former Chief Justice of the Delhi High Court, who chaired the Prime Minister Manmohan Singh-appointed High Level Committee to examine the socio-economic and educational status of minorities in India

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