This tower of Babel
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This tower of Babel

With two days to go for the Babri masjid verdict, Ashok Malik provides some legal scenarios that could have both parties claim ‘victory’.

india Updated: Mar 06, 2011 13:09 IST
Ashok Malik
Ashok Malik
Hindustan Times

On Friday, the Allahabad High Court will give its verdict in the Ramjanmabhoomi-Babri Masjid title case, India’s most contentious property dispute. What will the verdict be and will it resolve the Ayodhya problem? Essentially, the High Court has to decide on three questions:

* Did a temple or Hindu religious structure pre-date the Babri Masjid, believed to have been built in 1528 by Mir Baqi, a general of Babar, the first Mughal?

* Does the fact that a mosque existed at the site from, at least, 1528 to the night of December 22-23, 1949, when idols of Ram, Lakshman and Sita were placed inside the shrine, give Muslims ownership?

* Does the fact that a functional temple has existed at the site since 1949 give Hindus ownership?

A court case can result in a moral victory, a victory on substantive legal points or a victory on the basis of legal technicalities. Typically, the Ayodhya case has seen all these parameters being deployed in the courtroom.

To determine whether the mosque was built on the ruins of a temple, the High Court will go by the report of the Archaeological Survey of India (ASI). In 2003, the court tasked the ASI with excavating the area around the site — where a makeshift temple has stood since the demolition of December 6, 1992, and where the worship of the idols continues — and finding out whether another structure predated the mosque or whether it had been built on terra nullius (literally, ‘no man’s land’).

Other than the ASI report, the court may or may not take into account artefacts believed to have been found at the site during the demolition 18 years ago. The Vishwa Hindu Parishad (VHP) has long argued that its strongest evidence is a shila lekh (stone tablet) with an inscription referring to a Vishnu temple and dating back to the 12th century. The shila lekh was found buried beneath the debris on December 6.

Whatever the ASI report may point to, the title suit itself is another matter. This is where the ‘statute of limitations’ and the ‘law of adverse possession’ could play a role. As per Indian law, if X walks into Y’s property, usurps it (comes into “adverse possession”) and is unchallenged for 12 years, the property becomes his. Y has to take legal action against X within 12 years to get back his property, otherwise he loses it.

Presuming a temple existed in 1528, by 1949 the statute of limitations had long come into effect. There are precedents to support this. In January 1885, a Hindu priest filed a case before the sub-judge of Faizabad district seeking to build a temple right next to the Babri Masjid. After two years of courtroom battle, the sub-judge, the district judge and finally the judicial commissioner rejected the petition. “There is nothing on record,” wrote the commissioner in November 1886, “to show that the plaintiff is in any sense the proprietor of the land.” Eight months earlier, in March 1886, the district judge, one F.E.A. Chamier, had said in his judgement: “It is most unfortunate that a masjid should have been built on land specially held sacred by the Hindus, but as that event occurred 356 years ago, it is too late now to remedy the grievance.”

VHP lawyers disagree. The deity in a temple is a legal ‘person’ who may own property and pay taxes. The deity in Tirupati is a case in point. As per Indian law, the deity in a temple is a perpetual minor. As per Indian law as well, the statute of limitations doesn’t apply to minors. A two–year-old who has been deprived of his house can move court to get it back at the age of, say, 17, well after the 12-year limit. It’s the sort of Catch-22 lawyers just love.

The issue of adverse possession reversed directions after 1949, when Hindu idols and priests entered the building. The Sunni Central Wakf Board moved court on December 18, 1961, just as the 12-year deadline was expiring, and sought to exercise its rights on its property.

This, too, has been contested. On the morning of December 23, 1949, a first information report (FIR) was filed by Sub-Inspector Ram Dubey of the Ayodhya police station on the basis of an enquiry by Constable Mata Prasad. While reporting the appearance of the idols, Prasad alluded to the fact that Hindu groups had gathered at the Babri Masjid a full week earlier. Citing this, opposing lawyers contend the Wakf Board petition missed the 12 year deadline by three days.

From Lord Ram’s ‘perpetual minor’ status to those crucial three days, the Ayodhya case has had its share of legal stratagem. This may seem engrossing, but will it swing the verdict? It is unlikely that a case as important as this one will be decided on charming technicalities.

Having said that, a situation where the ASI report hints at the existence of a Hindu temple and the title suit itself goes in favour of the mosque and its caretakers can’t be ruled out. That will leave the VHP the moral winner and the Wakf Board the legal winner. Both sides will declare (half a) victory; and Ayodhya will remain intractable as ever.

Ashok Malik is a Delhi-based political commentator. The views expressed by the author are personal

First Published: Sep 21, 2010 21:16 IST