A verdict of contradictions


Karan Thapar

Supreme Court judgments should be intelligible and convincing. Those are two qualities I would stress above any other. In their absence, judgments could amount to sophistry. Now, to what extent does this apply to the recent judgment on the Babri Masjid-Ram Janmabhoomi dispute?

In paragraph 796, the court sets out how it came to its verdict. “The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence.” Let’s then look at that evidence and ask is it clinching and irrefutable?

The court accepts that both Hindus and Muslims have shown evidence of worship at the Masjid after 1857. However, before that year, the court says whilst “on a preponderance of probabilities”, there is evidence of Hindus worshipping in the inner structure, while this is missing in the case of Muslims. Para 786 says: “There is no account by them of possession, use or offer of namaz in the mosque between the date of construction and 1856-57 … nor is there any account in the evidence of the offering of namaz in the mosque over this period.”

For me, this is where the problem starts. Whilst claiming that there isn’t “evidence of the offering of namaz”, the court accepts this was a mosque that existed for over 450 years. So if it’s a mosque, doesn’t it follow prayers were held there? And if there is no evidence of that between 1528 and 1857, is the court claiming the mosque was defunct or disused for over 325 years? And if that’s implied or assumed, how does the court explain the mosque’s use for Islamic worship after 1857? But these questions are not answered.

There is one further issue. The court accepts that in 1856-57, Hindu-Muslim riots occurred over the right to worship at the Masjid and, as a result, the British erected a railing to create separate spaces for the two faiths. But isn’t that proof Muslims were worshipping prior to 1857?

Now, the court relies on 18th century writings by European travellers such as Joseph Tieffenthaler, William Finch and Montgomery Martin for evidence that Hindus worshipped at the Masjid prior to 1857. But these accounts also talk of the mosque and none suggest it was defunct or disused. Surely, the accounts which provide evidence for Hindus also provide evidence for Muslims? And yet the court appears to have turned a blind eye to that.

Let me now take my argument to a different level. Since the court claims it is only arguing on the basis of evidence, I’m troubled by the fact its reasoning seems to fly in the face of history.

The court says: “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 16th century.” But when the mosque was built in 1528, Babar was the conqueror of India and devoutly Muslim. Later, from 1658 to 1707, Aurangzeb was emperor and said to be a bigot. Is it conceivable they would allow Hindus to pray in a mosque? And, in particular, a mosque named after Babar? Or would they have ensured exclusive Muslim possession?

If the court wants us to accept Muslims did not have “exclusive possession of the inner structure prior to 1857 since the date of the construction in the 16th century”, it has to respond to this apparent clash with history.

Finally, look at this sentence from the conclusion in paragraph 800: “On a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims.” That clearly means that both sides have evidence supporting their claims but the court believes the Hindu evidence is better. Wasn’t that grounds for splitting the site between them rather than giving it entirely to the Hindus?

Now, I admit, I’m not a lawyer and certainly not an expert on deciphering Supreme Court judgments. But, if as a citizen, I find these issues troubling, can you call the judgment intelligible and convincing? Since it’s said to be based on evidence, shouldn’t that, at the very least, be beyond reasonable doubt? Is it in this case?

(HT Media)