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2019-11-11

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“This court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law,” Chief Justice Gogoi read out from the judgment.

The Supreme Court said the Allahabad High Court’s remedy of a three-way bifurcation of the disputed premises among the Ayodhya deity, Sri Bhagwan Ram Virajman, Nirmohi Akhara and the Sunni Central Waqf Board “defied logic”. It did not “secure a lasting sense of peace and tranquillity”.

The judgment nevertheless concluded that the Sunni Central Waqf Board was unable to prove its claim of exclusive title and continuous possession of the disputed site. “The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century,” the court observed. On the other hand, the court held there was both oral and documentary evidence to support the Hindus’ faith that the Janma Asthan was located where the Babri Masjid was constructed. It was beyond the ken of the court to probe whether this belief was justified. Judges cannot indulge in theology, but restrict themselves to evidence and balance of probabilities.

The court said there was proof of extensive worship offered by the Hindus, especially in the outer courtyard where the Ram Chabutra and Sita Rasoi are located, even before the annexation of the Oudh by the British in 1857. The Hindus’ possession of the outer courtyard has been established.

Besides, the Supreme Court accepted the version of the Archaeological Survey of India (ASI) that the mosque was not constructed on a vacant land. The ASI had suggested the remains of a large pre-existing structure underneath the Babri mosque which was “non-Islamic” in nature. The ASI had said the artefacts collected from the dig and the pillars of the mosque were of a non-Islamic origin.

The court refrained from arriving at a conclusion on the issue whether the pre-existing structure was demolished to construct the mosque. It said the ASI had also maintained a studied silence, only venturing that the pre-existing structure was used to build the mosque. The court, however, dismissed the contention raised by the Hindu side that the land, Ram Janam Asthan, was a legal personality just as the minor Ayodhya deity, Ram Lalla, was. The court said this claim was a “mirror image” of the Muslim’s claim that the disputed site was waqf property.

The court dismissed the Akhara’s petition as time-barred and rejected its suit claiming shebaiti (managerial rights) over the property. However, the court invoked its extraordinary powers to ask the government to give Nirmohi Akhara, considering the sect’s historical presence at the disputed site, to provide it with an “appropriate role in the management” of the property.

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