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Babri Masjid; A case of travesty of justice

By: Aabid Mushtaq

The doctrine of rule of law of which everyone is subordinate to, and is apex because constitution is the derivative of it and also is a supreme law of the land. I would straight go to the judgment of the Hon’ble Supreme court in Indore Development Authority v. Shailendra, (2018) 3 SCC 412 in this regard: “It is a settled proposition that one cannot be permitted to take advantage of his own wrong. The doctrine “commodum ex injuria sua nemo habere debet” means convenience cannot accrue to a party from his own wrong. No person ought to have advantage of his own wrong. At the very beginning when India was only two years old. When, idea of India and Bharat was just decided. While both India and Bharat finds place in the Indian constitution. Prime Minister Jawaharlal Nehru was come to grips with an ideal called India, his deputy, Sardar Vallabhai Patel, was defining its frontiers. As the people of a free, yet divided nation were still recovering from the partition – which ripped apart the social fabric – somewhere in Uttar Pradesh, the ground was being prepared for a confrontation in Ayodhya on the night of 22 December 1949. At 3 am, a flash of light was seen and Sri Ram appeared at the Babri Masjid. This supposed divine occurrence was the first turning point in the “centuries long” struggle of the Hindus to “liberate Ram Janmbhoomi”, ie, the Babri Masjid, which was commissioned by Babur’s commander Mir Baqi in 1528. This has been the first instance among all when India looks more Hindustan and Bharat to be a savior and a separate nation for Hindus. But a more earthly clarification exists in the FIR lodged on 23 December 1949, in which the officer-in-charge of the Ayodhya Police Station, Pandit Ramdeo Dubey, named three individuals – Abhiram Das, Ram Sakal Das and Sudarshan Das – and charged them with sections related to rioting, trespassing, and defiling a place of worship. The same charges were also leveled against another 50 to 60 unknown persons. How does desecration and crumbling down of structures of masjid took place, was preconceived and mostly state sponsored. The police remained back and most of the time as a mere spectators to let the process happen and unprecedented and unfortunately, we have the upshots in front now. A group of 50 to 60 persons have entered the Babri Masjid by breaking open the locks of the compound, and also by desecrating the walls and staircases and placed an idol of Shri Bhagwan in it and scribbled sketches of Sita, Ramji etc in saffron and yellow colors on the inner and outer walls of it. This incident has engraved stains on the democratic values and secular philosphy of Indian nation. This didn’t stop here but came all across two three decades when karsevaks had ordered an open attack on the premises of the Babri Masjid, vandalized , looted and crumbled the structures to the earth. Babri Masjid was again demolished on 6 December 1992. It was not a general criminal incident. The Supreme Court said that ‘a five-hundred-year-old structure which was defenseless and whose safety was a sacred trust in the hands of the State Government was demolished’. This had the effect of shaking faith in the rule of law and the constitutional process in our country. It is apparent from a reading of the chargesheet that it was planned for months by organized mobs under the leadership of known political masters, who later rose to very high offices in government and politics.

Cases/FIRs Filed – And how the Path for a ‘Combined Trial’ was paved
FIR 197 was registered on 6 December 1992 against lakhs of kar sevaks, alleging offences of dacoit, robbery, voluntarily causing grievous hurt by act, endangering life or personal safety of others, injuring and defiling place of worship with intention to insult the religion of any class trespassing burial places, promoting enmity between different groups
The same day, almost at the same time, another FIR – FIR No 198 – was registered against eight persons including LK Advani, Giriraj Kishore, Ashok Singhal, Murli Manohar Joshi, Vinay Katiyar, Uma Bharti. Sadhvi Rithambara and Vishnu Dalmiya, under various other sections of IPC.Apart from these two FIRs, about 47 more FIRs were lodged for committing cognisable offences and non-cognisable offences. Finally, FIR No 197 was handed over to the CBI on 13 December 1992.
FIR No 198 remained with the CBI/CID, but later, on 26 August 1993, these investigations, along with 47 other FIRs, were also handed over to the CBI. Accordingly, all 49 cases were entrusted to the CBI.
The CBI prepared a combined chargesheet on 4 October 1993, and a supplementary chargesheet on 10 January 1996.
On 9 September 1993, the state government issued a notification creating a special court in Lucknow for the trial of ‘all cases’ – but the schedule of cases in the notification mentioned only FIR No 197. This error (might have been a deliberate action of the state government) proved to be a godsend gain to complicate the issue of the trial at the hands of the accused for years. The trial court kept travelling from Lalitpur to Raebareli to Lucknow. Finally, the Supreme Court resolved it in 2017, to pave the way for a combined trial before one court in Lucknow, to enable the conclusion of the trial – and now we have the final judgment.
Originally, 49 accused were chargesheeted. In the last 28 years time, 17 accused died and 32 survived. 351 witnesses were proposed in the cases before this court. The first hand evidences which were collected against the criminal conspiracy that has been carried out when Masjd was demolished as such now were very instigative and clear to hold the accusation.
When Shri LK Advani – in close proximity of the disputed structure, shortly before the actual demolition of the disputed site amongst other facts duly projected by him – had also emphasized that 6 December was the last day of the kar seva, and the kar sevaks shall do the last seva on that day.
The charge sheet also records that LK Advani advised another co-accused Kalyan Singh, the then Chief Minister of UP, not to resign till the demolition of the disputed structure was complete.
In order to aid and abet criminal conspiracy, inadequate force was deployed at the disputed site and non-deployment of sufficient force was strategic and deliberate, which helped to abate the offence. The same Mr Kalyan Singh refused granting permission to use force to stop the foreseeable demolition saying it will lead to violence in the entire state of UP and the country itself.
Sadhvi Rithambara and Uma Bharti provoked the accused kar sevaks to demolish, and made an appeal through the public address system saying, ‘Ek dhakka aur do, Babri Masjid tod do’ (Give one more blow; demolish Babri Masjid). Uma Bharti shouted ‘Masjid girao, mandir banao’. Acharya Dharmendra Deo incited and encouraged the kar sevaks by saying ‘Ek ek eint prashad kay tor kar le jao’
Apart from all these clear indicative speeches and open pathetic slogans there were thousands of oral evidences before court to prove that Masjid was illegally demolished and hold up the accusation.
The Supreme Court of India on 09/11/2019 in M siddiq thr LRs Mahant Suresh das and ORS delivered the judgment in the long decades pending dispute wherein it directed central government to establish a trust to further proceed to hand over the possession of the disputed land to the Hindus . And Under clause, 2 of Ayodhya Act of 1993 a suitable plot of land measuring 5 acres shall be handed to sunni central waqf board
This Hon’ble Court has utterly failed to consider that settled principle of law i.e. ex “dolo malo non oritur action” (no right of action can have its origin in fraud). By failing to effectively adjudge and adjudicate upon the various illegal acts done in furtherance of the goal to build a temple upon the disputed site, and then ordering the said construction themselves, the Hon’ble Court has willingly allowed for a fraud not just on the Muslim parties to the dispute but on the Constitution of India. The arguments thus relies on the dictum of Lord Mansfield in Holman v Johnson (1775) : “The principle of public policy is this; “ex dolo malo non oritur action”. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
The cause of action appears to arise “ex turpi causa”, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. Despite having reiterated that the case was to be decided purely as a property suit between the parties, the Court framed the dispute from the very first paragraph of its judgment to be one between two religious communities. In doing so, the Court has violated the secular framework of the Constitution of India. It was held by the Court that the ASI report established that there was no evidence of the underlying structure being a Ram Mandir. The court thus errs in providing justice for the act of the Masjid destruction that was allegedly done in the name of unshakable faith in Ram Janmabhoomi.
The Hon’ble Court failed to consider the settled principle of law i.e. “commodum ex injuria sua nemo habere debet” – a wrongdoer should not be enabled by law to take any advantage from his actions. The orders passed by the Hon’ble court have allowed the concerned militant hindutva outfits to take advantage to their illegal actions such a placing the idol under the central dome on the intervening night of December 23/24 -1949 Violation of Article 15.
The Supreme Court has given more importance to the faith of one community over the faith of another community, which violates Article 15 of the constitution which says that the state shall not differentiate on the basis of religion.
This in contradiction to the judgment of the court on the sabirmala issue; wherein the Supreme Court opined the faith of every community has to be tempered against the constitutional framework of justice, equality and rights.

The Court in its final conclusion , identifies that acts of 22/23 December , 1949, as the desecration of the mosque and holds that it was in violation of the Muslim’s right to worship in the mosque . However , the claim made in the above mentioned statement incorrectly indicates that the act of the desecration of the mosque was seen as a righteous assertion of claim by the Hindu parties over the mosque area of worship , thereby holding the faith of the Hindus over the desecration of the mosque . Constitutional morality, the constitution envisioned a role for the state within the framework of constitutional morality to ensure that every branch would adhere to the rule of law. This view has been expressed in Manoj narula v. U.O.I (2018), It was held that the principle of constitutional morality basically means to bow down to the norms of the constitution and not to act in manner which would become violative of the rule of law or reflective of action in an arbitrary manner. In the case of JUSTICE Puttaswamy (retd)and Anr v. U.O.I (2108) SC 1642;it was held by the supreme court that the Constitutional morality requires a government not to in manner which would become violative of the rule of law. Constitutional morality require that the orders of this court be compiled with faithfully Navtej singh johar vs U.O.I, ministry of law and justice SC 1350 in This case the honorable court places a burden on the courts to derive every aspect of life to adhere to the constitutional values . But in this context of decision the honorable court which despite the caveats of the court to the contrary, in effect gives primacy to faith over constitutional principles of justice, equality and non discrimination.

From Supreme Court declaring the land in favor of Hindus to the CBI Court’s acquittal of those who were accused of illegal demolition of Babri Masjid , whole of the affairs were preconceived and state sponsored. As we should end this debate now by a last thing to tell that this dispute was one of the main agenda of current political regime and acquitting of accused was last nail to the Babri masjid coffin.

Author is a student of law , at department of law in University of Kashmir, can be reached at Tweets @Aabidrafiqa.