The Babri Masjid was destroyed on the 6th December 1992. It has all along been assumed that the site on which it stood belonged to the Sunni Wakf Board, this having been decided in the 1940s; and the Hindu claim having been rejected in 1885. It is also clear that the Muslims did not lose the right to full ownership of the site after the fateful idols were installed because the Wakf Board filed its suit before 12 years expired. The present judgment of the High Court seems to set aside the Muslim claim to full ownership of the site and seeks to make out a case of joint ownership of some part of the site. On what this is based will only be known once these massive judgments are read.
At this stage, without reading the full judgment it appears that there is a split decision, 2:1 in favour of a three way division of the site. The dissenting judge, Justice Sharma seems to have been wholly on the side of the Hindu argument. Justice S.U Khan found discrepancies in some of the evidence and does not appear to have accepted fully that the pillars found below the Mosque were of a live Hindu Temple that was destroyed between 1526 – 28. Nevertheless Justice S.U Khan and Justice Sudhir Agarwal have concluded that there should be a three way split of the area between the parties, with the site on which the present prayer is being made going to the Hindus and the rest being divided. Both Justice Khan and Agarwal seem to recognize the Hindu sentiment, that this was Ram Janmabhoomi, needs to be respected and built a case for the right to prayer at that sight on this speculative basis. This is speculative because no one can really pin point where the mythical Lord Ram was born or even that centuries ago prayer in fact took place at this sight to commemorate the birth of Lord Ram.
The judges seem to have over reached themselves on the legal question and decided something doubtfully to and offer a solution which nobody had asked for. This is why many are calling this judgment as not a judgment of a court of law based on legalities, but a Panchayati judgment looking for a solution for the future. If the legal questions had been properly answered the site would have belonged to the Muslim community and the Hindu right to prayer would have been recognized as a moral rather than a legal right which the Muslims should consider conceding. Both, honour and dignity would have been satisfied. In this way the judgment could have been a basis to work towards an enduring solution. But the Muslim legal rights not have been recognized, seems to make the very existence of the Sunni Wakf Board’s rights to the land and the presence of the Babri Masjid a chimera. The fact of the matter is that the site does belong to the Sunni Wakf Board. There was a Masjid on that site which is centuries old even if disused. That Masjid was destroyed on 6th December 1992 as an act of sacrilege. To even hint that the very legal foundation of the existence of the Masjid was infirm seems a misplaced way of going about things.
In the negotiations in 1989 under PM Rajiv Gandhi and of 1991-92 under PM Narasimha Rao one of the most important questions was whether Babur in fact destroyed a Temple to build a Mosque. In Muslim terms, this would have made the site haram. This had to be proved to the satisfaction of the Muslims. I am not entirely sure that in the light of archaeological evidence, the Muslims will be satisfied that this has been proved to their satisfaction. Even within the judgment, as we know it now, there may appear to be some discrepancy about this singularly important question. If indeed, archaeological evidence may suggest that there may have been a Temple in and around this site earlier, then Babur did not destroy an existing living temple to render the site haram. Judges are ill equipped to answer questions of this nature on which historians and archaeologists differ fundamentally.
To that extent, both Muslim pride and dignity may not have been served by this judgment, both on the question of Muslim ownership of the site as well as whether Babur in fact destroyed an existing living temple to render the site haram.
The next question is whether this judgment of a three way split is a workable solution for the future to create peace with dignity for all. No one can oppose the idea that a shared site in which Hindu, Muslim and secular can co-exist peacefully. But is this in fact a workable solution on a correct basis for an enduring solution for the future? In the future, will Muslims, Hindus and secularists look back at this solution with pride; and support it to the hilt. It may be difficult to countenance and accept the idea that although the Muslims were denuded to the right of the full site, they must nevertheless accept one third of what they were entitled to on a basis that they were not really entitled to it.
For the moment a lot is going to depend on the generosity of the Muslims to accept the denuding of their right and the proposed solution. It would have been better if the Muslims’ full ownership were recognized along with the right to Hindu prayer. The secular angle to this is that no minority should be forced into a legal solution in which their full rights have not been recognized and they have been given a compensatory one third as part of a new truth, justice and the Indian way of life. The Indian way of life required that no community or group should be pushed into a solution through an incorrect basis of law and moral entitlement.
Although the destruction of the Mosque on 6th December 1992 was not an issue before the court, the fact that a Mosque was destroyed on a Sunni Wakf Board site cannot be denied. The entire world is asking what Indian governance and justice had to offer in the wake of this act of sacrilege. The offer made by the Court which appears to have no legal basis is that Hindu sentiment should be respected. And, as an exercise in distributive justice, the Muslim should be given a part of a cake that is cut three ways. Both the world outside India as well as within the country may continue to make the accusation that India is a Hindu country which is prepared to marginalize the dignity, respect and entitlement of its minorities.
We must all make a plea for calm; but a plea for calm does not mean accepting this verdict. If the Muslim community as an act of grace accepts it and does not appeal to the Supreme Court that may well be the end of the matter, subject to a fair division of the one third split which would not be as easy as the judgment may assume.
But having won the Babri Masjid case, the Hindus should now stop seeking a recriminatory path of so called historic injustice by Muslim or Christian invaders. There should be no call, “Mathura next and Varanasi thereafter.” The Places of Worship (Special Provisions) Act, 1991 says that, on all other sites, rights that existed on 15th August 1947 should be respected. This parliamentary closure of remedying historical injustices should therefore be closed.