ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Making Sense of the Ayodhya Verdict

Do judicial discretion and the resultant directions guarantee complete justice?

Of the Supreme Court’s judgment in the Babri Masjid title suit, it can be said that its silences speak just as loudly as its words. That to truly understand the essence of the Court’s judgment, we need to not only understand what it is actually saying but also what it is choosing not to say.

Having granted the title to the disputed 2.77 acre property to the deity “Bhagwan Shri Ram Virajman” and its guardians, one wonders why the Court felt the need to issue the eight directions that it did. After all, this is essentially a title suit (pending since 1949) between a range of Hindu and Muslim parties claiming the land on which the Babri Masjid stood, and if the Court is certain that the title to the property belongs to the deity, we must ask why it should be concerned with what happens to the property thereafter.

There is the Acquisition of Certain Area at Ayodhya Act, 1993 that empowers the union government, which took over the property in question post 1993, to hand it over to any trust or authority subject to certain conditions. Consequent to the Ayodhya verdict, the Court could have left it to the union government to use its powers under the Ayodhya Act in whatever manner the government saw fit, but, instead, chose to prescribe very specifically how it should do so. We wonder why the Court felt the need to do this, and if the union government will ultimately comply in exactly the way the Court intends.

The source of the Court’s power to pass such directions is traceable to Article 142 of the Constitution, which it is ­supposed to exercise when “it is necessary to do complete justice between the parties.” The directions do not appear out of thin air. The judgment of the Court goes into some detail as to why this power is needed and exists in the Constitution—that sometimes it is necessary to overcome the “silences” of positivist, statutory law given the “complexities of human history and activity.”

Seen this way, one could draw the perhaps justified conclusion that while the Hindu parties were successful in establishing a legal case to the disputed property, the Muslim parties also need to be made whole in some way, therefore ensuring an equitable outcome. It has therefore mandated the grant of land to the Sunni Waqf Board to be used for the construction of a mosque as part of whatever scheme the union government draws up under the Ayodhya Act.

But, the question still remains: Is this “justice”? If the Hindu case was indeed established according to law, what particular aspect of the “complexities of human history and activity” has prompted the Court to direct the union and Uttar Pradesh (UP) governments to offer land to the UP Sunni Waqf Board?

The answer is not too hard to find. The Court notes, without equivocation, that the Babri Masjid was desecrated twice: first in 1949 when it was broken into in the dark of night and idols were placed under its central dome, and second in 1992 when a mob of kar sevaks demolished the domes of the Babri Masjid in full public view. Yet, the Court has not allowed either of these two events to affect the legitimacy of the Hindu claims to the property. It has placed its reasoning quite firmly on the faith and belief of Hindus that the Ram Janmabhoomi was under the central dome of the Babri Masjid, giving no weight to the Muslim claim that the mosque was in fact in use as a mosque even post 1857.

What the Court has therefore chosen not to say is simply this: We accept that the Hindu parties’ case has been strengthened by illegal acts in 1949 and 1992, but we will nonetheless allow them to take advantage of the same. We hope the Muslim parties will be satisfied with what we have offered them because we certainly cannot offer them justice for the illegal acts of 1949 and 1992.

The Court’s eventual directions in the case can at best be seen as an act of judicial charity. Complete justice requires that notwithstanding its conclusions on the title, the Court remedies the injustices of the events of 1992 in a real and meaningful way. The Court’s own history in this matter is revealing—it took no effective action against the then UP chief minister for failing to protect the Babri Masjid despite its own orders; it has allowed deadline after deadline to pass unmet as the criminal trial against those accused of the mosque’s destruction proceeds at a snail’s pace.

The Supreme Court’s judgment in the Babri Masjid title suit is by no means the “complete justice” that the powers under Article 142 are required to be used for. It is, at best, “incomplete justice” or, at worst, “complete injustice.”

Updated On : 22nd Nov, 2019

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