COPYRIGHT THE BRITISH LIBRARY BOARD A photograph of the Babri Masjid from the early 1900s

The Ramjanambhumi/Babri Masjid, Ayodhya, Faizabad, UP, title suit is in its last phase, since, the Supreme Court  ordered its hearing to start on a day to day basis from Aug 5, and the matter got further expedited as Chief Justice Rajan Gogoi made it to be heard for five days a week, instead of the previous three. The constitution bench consists of Justice S.A. Bobde, Justice DY Chandrachud, Justice Ashok Bhushan and Justice S. Abdul Nazeer.  The SC had earlier also dismissed a petition seeking ‘live-telecast’ of the proceedings as surely it would have added more vitriol to the already vitiated atmosphere of the country.

As the country is tuned up to the SC, although only press snippets are the available from inside the court, likewise it was to the run-up to the Allahabad High Court judgement of Sep 30, 3010 when the three judges bench, consisting Justice Sudhir Agarwal, Justice DV Sharma and Justice SU Khan, divided the Babri Masjid site into three parts, giving two-third of it to Nirmohi Akhara and Bhagwan Shri Ram Lala Virajman and one-third to the Muslim side. The HC used its inherent powers and made it a partition suit, and its judgement called Lord Rama to have been born just below the central dome of Babri Masjid 9, 00,000 years back. In my long understanding of this issue, during which I wrote dozens of articles apart from visiting Ayodhya a couple of times, I remember the time before Sep 30, 2010.

Often did I sit on the last bench during the hearing, and Justice DV Sharma, would toil with Muslim side lawyers as to why were they exhausting their energies for the place inside Babri Masjid (as if it already belonged to Muslims) putting Muslims into complete disarray and very artfully confusing Muslims that the case was going to be decided in their favor, and Muslims, no doubt in view of the voluminous evidence, oral and documentary, were pretty sure that the judicial minds would remain foolproof to the rhetoric on the streets but Muslims were caught napping on the wrong foot.

Had Muslims had any inkling they could have easily avoided the judgement as the next day was the superannuation of Justice DV Sharma, which obviously must have led to the induction of a new judge, and the matter would have been argued afresh, and as such, that opportunity had come quiet handy for Muslims, as some Hindu parties had then petitioned in SC that the judgment may not be pronounced, as they were not heard, but Muslim parties being so hopeful did not oppose their prayer which led to the application being rejected in SC.  It may also be known that Muslims had always sought for the day-to-day hearing of the case.

Now as this case is being argued before the SC  and on its queries it has been cleared that Babri Masjid was built in 1528, and Muslims offered their prayers inside and up to the evening of Dec 22, 1949, but at the same time, a propaganda is being unleashed that Muslim religious properties can be lost by adverse possession, in the light of judgement of Privy Council, Lahore Shahidganj Mosque, and Hindu properties are not affected by this concept, but AIR 1940 Privy Council clearly states that properties of Hindu religion are also affected by the same concept. Ironically, the two judges Justice Sudhir Agarwal and Justice DV Sharma did not touch this aspect, however, Justice SU Khan, on the basis of submission made by MA Siddiqui, a counsel from Muslim side, taking into account the earlier Privy Council ruling, has laid down that Hindu religious properties are also equally affected by this concept, and as such the law propounded by Justice SU Khan stands to be the dictum of the all three.

Hindu side counsels are totally relying on aastha (belief) that despite having been ousted from the place (Babri Masjid) their aastha to treat the said place (Babri Masjid) as temple remained intact, yet in the wake of the contention by the Hindu side counsels, interestingly, it may be known that as per Hindu jurisprudence, an aastha having cropped up in a particular year, although even it may be a millennium old, will be considered, the aastha of the year in which it was promulgated, and it becomes clear that in 1886, when District Judge Chamier of Faizabad, went to inspect Babri Masjid, the counsel of Raghubar Das, is said to have told (Chamier) that the masjid in question (Babri Masjid) itself was wrongly built but the said saying had no basis, and this, has been appropriated by Chamier in his order which was further confirmed by Judicial Commissioner of Oudh W Young, having the status of HC, in 1886.

Thus, the aastha question first came on the horizon in 1886, and since Dec 22, 1949, when Lord Rama idols were kept inside Babri Masjid, Hindus had been organising Punahudhhar

( resurrection) ceremony in Ayodhya every year, leaving a biting question as to why was not any ceremony ever proclaimed between 1528 and 1949 anywhere, even if that might have been on an occasion of any Kumbh? Like the way Muslims organise Yaum-e-Quds, on the last Friday of Ramazan, all over the world.

Interestingly, it may be brought out here, that once Nirmohi Akhara, one of the parties to the dispute, in a Civil Suit No. 95 of 1941, Faizabad, in which there was a dispute between factions of Nirmohi Akhara, Babri Masjid finds mention in their plaint and is clearly mentioned in the site plan too, which was upheld by Commissioner as well. The dispute had ended in a compromise, but definitely seeks an answer as to why the same aastha was silently negated in 1941? And which was again reclaimed in 1949?

Hindu side counsels are banking on ‘aastha’, whereas Muslims side on history, evidence and record and this is the moot question to be judged before the SC. Perhaps, this time the nation is likely to square up for its most controversial title-suit before Nov 17 when the stage for the  retirement of CJI Gogoi has been set.

The writer is a journalist, lawyer and former UP State Information Commissioner.


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