Babri: Constitution disregarded

The destruction of the was a serious crime under Sec 295, IPC. The destruction violated the Constitution as it denied to every Muslim or a section thereof, the freedom of religion guaranteed to them by Articles 25 and 26 of our Constitution. The destruction of the masjid put an end to all previous controversies raised by Hindu organisations about their alleged right to erect a temple on the place where the masjid stood. This is because no court will give any assistance to those who unilaterally by criminal acts destroyed the subject matter of the dispute and violated the Constitution and the law.

After December 6, 1992, the earlier controversies were replaced by one question: What was the duty of the central government once the Babri Masjid had been destroyed by the unconstitutional acts of a fanatical Hindu mob? To this, there can be only one answer: the Babri Masjid must be rebuilt, and Prime Minister (P V Narasimha Rao) gave that answer on December 7, 1992, when he said that he considered it his duty to rebuild the Babri Masjid.

Far from the Prime Minister and his Cabinet discharging their duty to rebuild the Babri Masjid by taking valid legal steps to make such rebuilding possible, they have sidetracked the real question, thereby evading their clear duty. On January 7, 1993, the President promulgated The Acquisition of Certain Areas of Ordinance, 1993.

Also, on January 7, 1993, the President , acting under Article 143(1), referred the following question for the advisory opinion of the Supreme Court: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ramjanmabhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the areas on which the structure stood?” Some of the recitals to the Ordinance state that the lands at Ayodhya were being acquired to maintain publicorderandtopromotecommunalharmony and common brotherhood amongst the people of . The Ordinance and President’s reference are interconnected, for recital 5 to the reference states that notwithstanding the vesting of the area acquired in the central government, the Centre “proposestosettlethesaiddisputeafterobtaining the opinion of the and in terms of the said opinion” .

The Ordinance and the President’s reference cannot possibly achieve the objectives set out in those measures. First, it is well settled that an advisory opinion binds nobody, not even the Supreme Court. Secondly, no court, much less the Supreme Court, would answer a question which required the court to carry out research not only in 500 years of history and archaeology but also in myths and legends contained in epic poems and in folk lore. Further, under Article 143(1), the Supreme Court may give its opinion but is not bound to do so. If, as is almost certain, the Supreme Court declines to give its opinion, the Ordinance and the reference cannot achieve the central government’s objective ofsettlingthedisputeinthelightofthatopinion . Further, the central government cannot settle the Babri Masjid dispute. It can be settled only in one of three ways:

By the parties to it setting out their respective cases for the decision of a competent court, and the Supreme Court is not a competent court of original jurisdiction for this purpose. Secondly, the parties can agree to the dispute being settled by arbitration. And, thirdly, the parties can settle the dispute on thetermsagreeduponbetweenthemselves. Therefore, the Ordinance and reference cannot resolve the Babri Masjid dispute.

The Ordinance is void because it violates the fundamental rights of Muslims and Muslim denominations to the freedom of religion conferred on them by Articles 25 and 26. Clause 3 of the Ordinance vests the area acquired in Ayodhya in the central government . Clause 4(1), inter alia, vests all movable and immovable property in the acquired area in the central government. Clause 4(2), inter alia, extinguishes all trusts on which such property is held. Also, all restrictionsimposedontheuseofsuchproperty by any court, tribunal or other authority would cease to have effect.

Clause 4(3) puts an end to all pending suits, appeals or other proceedings in relation to the properties vested in the central government. Clause 9 states that the provisions of the Ordinance states that the provisions of the Ordinance shall have effect notwithstanding anything inconsistent therewith in any other law or in any decree or order of any court, tribunal or other authority.

But the provisions of the Ordinance cannot override the provisions of our Constitution . The SC has held in cases too numerous to mention that any law which extinguishes a religious trust or removes the trustees or managers of properties movable and immovable belonging to a religious trust is void, as violating Articles 25 and 26.