Historical Wrong And Constitutional Rights


Jan 17, 2024, 02:22 PM | Updated 02:22 PM IST

A nineteenth century image of the disputed structure at Ayodhya, also known as the 'Babri Masjid'.
A nineteenth century image of the disputed structure at Ayodhya, also known as the 'Babri Masjid'.

The city of Ayodhya was founded by Manu, the progenitor of all mankind. Ayodhya is associated with Ram and is treated as a holy city by Hindu scriptures.

Ayodhya was not birth place of an ordinary man, it was blessed with the arrival of the Lord of the whole world.

When Lord Rama was born in Ayodhya and must have played and walked throughout thereat, the then entire territory of city of Ayodhya, from the point of view of all Hindus, must acquire the status of reverence and piety.

There was an ancient temple of Maharaja Vikramaditya’s time at Shri Rama Janmabhoomi, Ayodhya and it was demolished by Mir Baqi, commander of Babar’s hordes, to construct a “mosque” in its place and the mosque was raised.

However, the Hindus have been continuously staking their claim over the site in dispute on the ground, that this is the place of birth of Lord Rama and there was a temple.

In 1855, a serious conflict between the Hindus and the Muslims at the site of Hanumangarhi in Ayodhya, both claiming it to be a place of worship connected with their respective religions. In the riot 75 Muslims were killed.

After annexation of Awadh (1856) by the British government, a boundary wall grill/railing wall was constructed to bifurcate the constructed portion and the inner courtyard from the outer courtyard.

The setting up of a railing in 1857, around the disputed structure of the mosque, by the British, took place in the backdrop of a contestation and disputes over the claim of the Hindus to worship inside the precincts of the mosque.

Proximate in time, in or about 1857, Ramchabutra was set up in close physical proximity to the railing. Essentially, the setting up of Ramchabutra within a hundred feet or thereabouts of the inner dome, must be seen in the historical context as an expression or assertion of the Hindu right to worship at the birth-place of Lord Ram.

Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja, both within and outside the precincts of the inner courtyard.

Even after the setting up of the Ramchabutra, pilgrims used to pay obeisance and make offerings, to what they believed to be the Garbh Grih located inside the three-domed structure, while standing at the iron railing which divided the inner and outer courtyards.

The grill-brick wall did not constitute either a sub-division of the disputed site which was one composite property, nor did it amount to a determination of title by the colonial administration.

In or about 1877, at the behest of the Hindus, another door to the outer courtyard was allowed to be opened by the administration on the northern side (Sing Dwar), in addition to the existing door on the east (Hanumat Dwar).

After Indian Independence, Hindus wanted to regain the entire Janmasthan temple. On the night between 22-23 December 1949, idols of Ramlala were installed below the central dome of the inner courtyard by a group of 50-60 persons.

On 16 January 1950, upon the suit filed by Gopalsingh Visarat, injunction was granted against state and other authorities restraining the removal of idol placed in the central dome of the inner courtyard.

By order dated on 1 August 2022, the Court directed the Archealogical Survey of India (ASI) to excavate to find out whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi in the area, on which the structure stood.

ASI filed a report stating that the underlying structure which provided the foundations of the mosque, together with its architectural features and recoveries, are suggestive of a Hindu religious origin — comparable to temple excavations in the region pertaining to the era.

The Court required to decide the issue whether the construction of the mosque in 1528 A.D (over 450 years ago) on the foundation of an erstwhile religious structure (dating back to 12th Century A.D) can result in the finding on the question of title and the Court was called out to determine the legal consequences arising out of thousands of years of prior, contest, construction and destruction at the disputed site.

It is admitted by all the parties that at some point during reign of the Mughal Empire, a mosque was constructed at the disputed site. During the Mughal period, the territory now known as India, ‘was under foreign occupation' — Hindus were not permitted to exercise their religious rights and, upon the adoption of the Constitution of India, the wrongs of the Mughals are liable to be rectified.

The disputed property has fallen within the territory of various rulers and legal regimes. The question of which party, king or religion had a first claim to the disputed site is one of significant historical interest.

The facts pertaining to the present case fall within four distinct legal regimes:

1. The kingdoms prior to 1525, during which the ancient underlying structure dating back to the 12th century is stated to have been constructed;

2. The Mughal rule between 1525 and 1856, during which the mosque was constructed at the disputed site;

3. The period between 1856 and 1947, during which the disputed property came under colonial rule; and

4. The period after 1947, until the present day in independent India.22

The court must determine what are the legal consequences arising from such an enquiry. The courts of today cannot take cognisance of historical rights and wrongs, unless it is shown that their legal consequences are enforceable in the present.

The nature of the ancient underlying structure, beneath the disputed property dating back to the twelfth century, has been the subject matter of great controversy in the proceedings. The existence of an ancient Hindu temple below the disputed property was evidence that title to the disputed land vested with the deities.

As the land of a deity is inalienable, the title of the deities from the twelfth century continues to be legally enforceable even today.

It would need to be demonstrated that every subsequent sovereign to the territory, within which the disputed land falls — either expressly or impliedly — recognised the title of the deities and further, the legal consequences of actions taken, proprietary rights perfected, or injuries suffered in previous legal regimes can only be enforced by the Court if they received implied or express recognition by subsequent sovereigns.

With absence of such recognition, the change of sovereignty is an act of the state and the Court cannot compel a subsequent sovereign to recognise and remedy historical wrongs.

The genesis of the present dispute spans over four distinct legal regimes — that of Vikramaditya, the Mughals, the British and now, Independent India.

The Mughal conquest of the territories was a supra-national act between two sovereigns. The next change in legal regime occurred on 13 February 1856, with the annexation of Oudh by the East India Company, which later became the colonial government of the British sovereign.

With respect to recognition of rights by the British sovereign upon the annexation of Oudh, no actions were taken to exclude either the Hindu devotees of Lord Ram from worship, or the resident Muslims offering namaz at the disputed property.

On 15 March 1858, by the proclamation of Lord Canning, all property, excluding a select few estates, were confiscated by the British sovereign and the disputed property was designated as Nazul land (i.e. land confiscated and vesting in the government).

The construction of the railing in 1858, to separate inner and outer courtyard and maintain law and order between the two communities, is premised on the worship of both religious communities at the disputed property.

The Hindus, however, maintained immediate and continued contest over their exclusion from the inner courtyard.

In 1877, another door was opened on the northern side of the outer courtyard by the British government, which was given to the Hindus to control and manage.

After India’s independence and on adoption of the Constitution of India, and the change of legal regime between the British sovereign and Republic of India, there exists a legal continuity between British sovereign and Republic of India by Article 372 of the Constitution, “all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein, until altered or repealed or amended by a competent legislature or other competent authority.

Article 372, read with Article 296, creates a legal continuity between British sovereign and Republic of India and there are both — express and implied recognitions — that an independent Indian sovereign recognises the private claims over property as they existed under the British sovereign — unless expressly evidenced otherwise.

Therefore, the rights of the parties to the present dispute which occurred during the colonial regime can be enforced by the Court today.

The rights of the Hindus in the disputed property is recognised by the British sovereign — with the construction of railing wall between inner and outer courtyard and opening of the new gate in the northern side of the outer courtyard, which was given to the Hindus to control and manage.

The complexities of human history and activity inevitably lead to unique contests — such as in this case, involving religion, history and the law — which the law, by its general nature, is inadequate to deal with.

Even where the positive law is clear, the deliberately wide amplitude of the power under Article 142 empowers the Court to pass an order which accords with justice.

For justice is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy the rule of law rests.

The historical wrong is remedied by the Supreme Court by exercising its power under Article 142 of the Constitution of India, to render complete justice, and directed the central government to form a trust to construct the temple and handover the disputed property, along with acquired land, to the trust for the construction of the temple for Lord Rama.

The author is the Advocate on Record for Deity Ramlalla Virajman before Supreme Court of India. He assisted senior advocates Shri K Parasaran and C S Vaithyanathan before the Supreme Court in Ayodhya dispute case.

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