Final Ayodhya SC arguments: A protracted, bruising battle to come to a close

The five-judge Constitution bench, headed by Chief Justice Ranjan Gogoi, hearing the Babri Masjid-Ram Janmabhoomi dispute, on Monday, asked former attorney general and senior advocate K. Parasaran, who appeared for the Hindu party: "They say, once a mosque always a mosque, do you support this?" "No. I do not support it. I will say once a temple always a temple," Parasaran replied. In essence, this statement summed up the impasse on the sensitive issue, as Hindu and Muslim parties tore into the legal and historical validity of the other's arguments. In the final stages of the argument were raised questions of title suits, historical and cultural significance, Islamic law vis-a-vis the mosque, and reparations for historical wrongs committed by Mughal emperor Babur. 

Fourteen appeals have been filed in the apex court against the 2010 Allahabad High Court judgment, delivered in four civil suits, that the 2.77-acre land in Ayodhya be partitioned equally among the three parties—the Sunni Waqf Board, the Nirmohi Akhara (seeking right to worship) and Ram Lalla. On the final day of hearings—initially believed to be October 17, but which the bench hinted would end today—the chief justice has allocated initial 45 minutes to Hindu parties followed by one hour to Muslim side, and then four slots of 45 minute each to assorted parties involved in the matter. To prevent mishaps, the Ayodhya administration has imposed section 144 (curfew and unlawful assembly) till December 10. "Here is the order under section 144 issued yesterday. The order has been issued considering safety and security of Ayodhya and those visiting here as Govt’s paramount concerns. Thanks," tweeted Anuj K. Jha, collector of Ayodhya. 

Rajeev Dhavan, appearing for the Muslim parties, argued that Muslims had title over the land since 1528 when mosque was built and there have been evidence that Mughals, Nawab of Awadh and then Britishers gave grants. Moreover, Hindu parties, from 1885 to 1989, did not claim title. Dhavan said he was "cautioning" the bench against re-writing history as lawsuits cannot be decided on the basis of archeological evidence and by deciding whether Babur created a wakf. 

Cases have to be decided under legal parameters and courts cannot be persuaded to decide that 500 mosques, built by conquering emperors, be dug up to establish that temples were existing before the mosques, he said. Conflicting archaeological reports—especially one in the 1990s which claimed there was no temple structure underneath the mosque—had figured in the hearings.

"We are concerned with the proposition of law and the archeological evidence will not and cannot decide my title over the property," he said, adding, "Why knock down one of the domes of the Babri mosque in the 1934 riots and trespass to install the idols of Lord Ram in 1949 if they already had the title...Why did they have to do all this".

He said that Quran, Hadith and other Islamic law cannot be used in "bits and pieces" to establish that the place was not a valid mosque in view of the fact that Islamic law is "very complex" and has evolved in last 1500 years.

He then dealt with submissions of senior lawyer P.N. Mishra that the mosque was not a valid mosque in the eyes of Quranic and Islamic law and said that Indo-English law would apply in this case and "pick and choose from the Quran and Hadith do not help".

"Aurangazeb was one of the most liberal rulers. Very orthodox, but liberal conqueror. Hindus with limited knowledge cannot determine the fate of this dispute as Islamic law is very complex," Dhavan said.

In reply, Parasaran, appearing for the Hindu party, argued that there were several mosques in Ayodhya where Muslims can pray but Hindus cannot change the birth place of Lord Ram. "Please do the reparation of a historical wrong committed by foreign ruler Babur who came here and said that I am the emperor and my fiat is the law," the senior lawyer, appearing for Mahant Suresh Das, who is a defendant in a law suit filed by Sunni Waqf Board and others in 1961.

"Muslims can pray in any other mosque in Ayodhya. There are 55-60 mosques in Ayodhya alone. But, for Hindus, this is the birth place of Lord Ram...which we cannot change," he said.  

Hindus have been fighting for centuries for the birthplace of Ram which cannot be changed and for Muslims all mosques are equal, Parasaran said, adding that foreigners like Mughals, Portuguese, French and Britishers came to rich India and plundered it which led this country to poverty.

He was responding the lawsuit filed by Muslim parties including Sunni Wakf Board and said their case of 1961 was time-barred under the Limitation Act and alleged that they had sought a declaration about the nature of the building in dispute and did not seek injunction for enforcement of right of worship.

He alleged that Muslims in their lawsuit was not right in seeking possession of the property back as it was in custody of the government authority (custodia legis) since December, 1949 and "therefore, the prayer for grant of possession is sought only to circumvent the limitation of 6 years imposed by Article 120".

Parasaran said it has been said that "ancient mosque" was built by Babur more than 433 years ago after his conquest of India and hence the title of the mosque is "traceable to the conquest and occupation of Emperor Babur" but it has not been proved by the Muslim parties.

He then referred to the findings of a Faizabad court in 1886 on a lawsuit filed by Mahant Raghubar Das and said it was held the mosque was built on the land held sacred by Hindus.

"The burden of proof is on Muslim parties to show that this finding, that the mosque was built on land held sacred by Hindus, is wrong. Even where a case is decided in favour of a party, he can attack findings adverse to him in the appeal filed by the other party," he said.

While he was making submissions that there was a need to correct historical wrong, senior advocate Rajeev Dhavan, appearing for Muslim parties, raised objections that Parasaran was entering into new arguments by referring to theory of conquests by Babur.

-Inputs from PTI