It is good that the Constitution bench of the Supreme Court has given a unanimous 5-0 Verdict on the Ayodhya dispute. The native genius of north India, which recognises the almost divine wisdom of the Panch Parameshwar in the panchayati system of justice prevailing in villages, might heartily approve of this rare show of unanimity on the part of the judges of the Supreme Court. Judicial unanimity in deeply divisive matters helps parties to the litigation and a fractured polity to arrive at an acceptance of even an otherwise unpalatable norm, as one that would govern the future.
Even in the Supreme Court of the United States, Chief Justice Earl Warren was equally careful to ensure a unanimous 9-0 judgment in Brown VS Board of Education. That judgment in 1954 ruled on school desegregation and compulsory integration of African-American students in schools and colleges throughout the United states. A unanimous verdict ensured that even President Eisenhower, who did not initially support the idea of racial equality, was compelled to enforce the judgment by force of arms where necessary. He even ordered deployment of the national guard, in those southern States, and universities which refused to admit African Americans into educational institutions.
Unanimity in this 2019 Ayodhya judgment has been achieved by all five judges signing the judgment, without attributing individual authorship. An addendum has been added by only one of the five judges holding “that faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above”. This addendum has been treated neither as a concurrence nor a dissent, but simply added as the finding of a solitary judge.
The unanimous Court believes: “It is the law which provides the edifice upon which our multi-cultural society rests. The law forms the ground upon which, multiple strands of history, ideology and religion can compete. By determining their limits, this Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another.”
A finding on the evidence
After an exhaustive reading and weighing of the evidence, it rules: “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. The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property. On the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857. Their possession of the outer courtyard stands established together with the incidents attaching to their control over it. As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. 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.”
Moulding the relief
A client once told me, “we are not interested in the fine legal reasoning of a judgment . Tell us the order.” The elaborate judgment proceeds to mould the relief in the following fashion – “We are of the view that on the one hand a decree must ensue in Suit 5 ( deity). Suit 4 (Wakf Board) must also be partly decreed by directing the allotment of alternate land to the Muslims for the construction of a mosque and associated activities. The allotment of land to the Muslims is necessary because though 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, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims. 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.”
The long unanimous judgment is a work of industry and scholarship. It has sought to mould its ultimate relief, in attempting a fine balance of statesmanship and craftsmanship. The court has preferred not to follow the Justinian maxim of Fīat jūstitia ruat cælum, meaning “Let justice be done though the heavens fall.” It has preferred to follow Cicero’s maxim instead , Salus populi suprema lex esto, meaning “The welfare of the people is the Supreme Law”.
The author is a lawyer who practises in the Supreme Court.
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Source: Business Standard