A Constitution Bench of the Supreme Court on Saturday permitted the construction of a temple at the site where the Babri Masjid once stood, and asked the government to allot a “prominent and suitable” five-acre plot for Muslims to construct a mosque in Ayodhya.

In a unanimous judgment, a Bench headed by Chief Justice of India Ranjan Gogoi asked the Centre, which had acquired the entire 67.73 acres of land including the 2.77 acre of the disputed Ramjanmabhumi-Babri Masjid premises in 1993, to formulate a scheme within three months and set up a trust to manage the property and construct a temple.

For the time being, the possession of the disputed property would continue to vest with the Centre until a notification is issued by it investing the property in the trust.

The Bench also directed that the Sunni Central Waqf Board should be given a five-acre plot, either by the Centre from within its acquired area, or by the Uttar Pradesh government “at a suitable, prominent place in Ayodhya”. The Board would be at liberty to construct a mosque there. This should be done simultaneously with the transfer of the property to the proposed trust.

The judges declared that the demolition of the 16th century Babri Masjid on December 6, 1992, was “an egregious violation of the rule of law” and “a calculated act of destroying a place of public worship”. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago, the Bench said.

The Court referred to the Places of Worship (Special Provisions) Act of 1991, which prohibits the conversion of the status any place of worship, to say that all religions are equal. “The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship and prayer are equal,” Chief Justice Gogoi said, reading excerpts from the judgment for the Bench, also comprising Justices S.A. Bobde, D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer.

The court concluded that the Muslims were ousted from the 1500 square yards of the mosque through acts of damage during communal riots in 1934, desecration in the intervening night of December 22-23 of 1949 when idols were place inside the mosque, and finally, the demolition of the mosque in 1992.

“This court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law,” Chief Justice Gogoi read out from the judgment.

The Supreme Court said the Allahabad High Court’s remedy of a three-way bifurcation of the disputed premises among the Ayodhya deity, Sri Bhagwan Ram Virajman, Nirmohi Akhara and the Sunni Central Waqf Board “defied logic”. It did not “secure a lasting sense of peace and tranquillity”.

The judgment nevertheless concluded that the Sunni Central Waqf Board was unable to prove its claim of exclusive title and continuous possession of the disputed site. “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 sixteenth century,” the court observed.

On the other hand, the court held there was both oral and documentary evidence to support the Hindus’ faith that the Janma Asthan was located where the Babri Masjid was constructed. It was beyond the ken of the court to probe whether this belief was justified. Judges cannot indulge in theology, but restrict themselves to evidence and balance of probabilities.

The court said there was proof of extensive worship offered by the Hindus, especially in the outer courtyard where the Ram Chabutra and Sita Rasoi are located, even before the annexation of the Oudh by the British in 1857. The Hindus’ possession of the outer courtyard has been established.

Besides, the Supreme Court accepted the version of the Archaeological Survey of India (ASI) that the mosque was not constructed on a vacant land. The ASI had suggested the remains of a large pre-existing structure underneath the Babri mosque which was “non-Islamic” in nature. The ASI had said the artefacts collected from the dig and the pillars of the mosque were of a non-Islamic origin.

The court refrained from arriving at a conclusion on the issue whether the pre-existing structure was demolished to construct the mosque. It said the ASI had also maintained a studied silence, only venturing that the pre-existing structure was used to build the mosque.

The court, however, dismissed the contention raised by the Hindu side that the land, Ram Janam Asthan, was a legal personality just as the minor Ayodhya deity, Ram Lala, was. The court said this claim was a “mirror image” of the Muslim’s claim that the disputed site was waqf property.

 

The court dismissed the Akhara’s petition as time-barred. and rejected its suit claiming shebaiti (managerial rights) over the property. However, the court invoked its extraordinary powers to ask the government to give Nirmohi Akhara, considering the sect’s historical presence at the disputed site, to provide it with an “appropriate role in the management” of the property. 

Published – November 09, 2019 03:37 pm IST

Guwahati:

Distinguishing between ‘judicial activism’ and ‘judicial overreach’, former Chief Justice of India (CJI) Ranjan Gogoi on Friday maintained that it is the responsibility of the judiciary to choose when to act as a catalyst for change and when to uphold the status quo.

He also underscored the need for judicial systems to adapt to the changing times, which is being recognised globally.

“This delicate act of navigation – choosing when to act as a catalyst for change and when to uphold the status quo – underscores the judiciary’s immense responsibility. It is within this context that the distinction between ‘judicial activism’ and ‘judicial overreach’ becomes profoundly significant,” Justice (retd) Gogoi said.

He was delivering the keynote address at the 76th foundation day of Gauhati High Court.

“Judicial activism is not the same as judicial overreach. The former is a peacemaker; the latter is a trespasser,” the Rajya Sabha member added.

He said that ‘adventurous’ judicial activism carries with it the risk that decisions, though well-intentioned, sometimes lead to unintended consequences, muddying the waters of legal certainty.

He maintained that the advent of Public Interest Litigation (PIL) has marked a revolutionary shift in the legal landscape, “transforming the judiciary from a passive arbiter of disputes into an active force for social change and at times even bringing in debatable changes in political life and values”.

The former CJI, however, cautioned that the PIL is also like a double-edged sword.

He said, “On one side, PIL has been instrumental in effecting landmark changes in various sectors, including environmental protection, human rights, and government accountability. On the other side, the broad latitude provided by PIL has sometimes led to what can be seen as judicial overreach, with courts encroaching upon the domains traditionally reserved for the legislative and executive branches and trenching upon political morality.”

Highlighting the need for judicial systems to adapt, the former CJI said the urgency in this regard has been recognised worldwide.

“These systems are called upon to be prophetic, to understand the undercurrents of their rulings, and to promote an environment wherein the law befriends vitality rather than unwittingly hindering it,” he said.

A functional judiciary, endowed with sufficient resources and personnel, is no longer a luxury but an imperative for the sustained development of the nation, he added.

“In the absence of timely justice, the public’s trust in the institution wanes, and the rule of law is undermined, affecting the nation’s overall wellbeing,” Justice (retd) Gogoi said.

The former CJI maintained that the judicial institutions are not merely constructed of bricks and mortar, rather these are corridors of hope.

“The moment hope falters in the hearts of the common man, questioning whether this institution will stand by them through thick and thin, that is the moment we risk losing the essence of our establishment,” he said.

He asserted that the true measure of the judiciary’s strength does not lie in its resistance to executive control or material infrastructure or resilience against eternal forces.

“Rather, its vitality and relevance are deeply intertwined with the faith that the citizen places in it,” he said.

Innovating ways to make the judicial system more approachable, adaptable, and responsive to the evolving needs of society are integral steps in preserving this trust, he added.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)