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Faith and belief cannot be basis of judgement; only evidence can

Faith and belief cannot be basis of judgement; only evidence can

Shafiq R.Mahajir

“Faith and belief cannot be the basis of judgments; only evidence can”: solemn as a platitude, it failed to light the way. Namaaz never ceased in inner courtyard nor was it abandoned. If namaaz never ceased, nor was courtyard abandoned, how was possession by Muslims “not uninterrupted”? But SC says “absence of evidence is not evidence of absence”.

Do construction remnants of “non-Muslim character” ipso facto give them “Hindu” character?

Demolition was illegal, placing idols was sacrilege, for centuries it was a Masjid. Court, ignoring Masaajid (mosques) are built for namaaz alone, seeks proof of prayers during centuries past!

Flashback three and a half decades. In WP filed for allowing worship at Masjid atop Charminar, an APHC judge asks 30-year old (loaded) question referable to a period prior to his birth: had he ever himself personally seen namaaz held there, and on his honest “no”, on that ground dismisses the WP, lauding him (the sop) for honesty!  Go figure.  

Cut to judgement. Claim initially is for Ram Chabutra, Lord Ram’s birthplace under Masjid’s central dome is first mooted in 1989. On ruins of 300-year antiquity, Mir Baqi built Masjid in, say, 1549 (actual, 1528).  Idols came in 1949. Four hundred years. Enough to satisfy a law, not enough for Court. Instead of law regulating public conduct, can majoritarian demands determine what courts decide?

In the context of claim over other mosques, mainly Kashi, Mathura, etc., SC mentioned Places of Worship Act, 1991 as imposing “Non-Derogable obligation towards enforcing commitment to secularism under Constitution… legislative intervention … preserves non-retrogression as an essential feature of our secular values.” Obligations need implementation. When the very Constitution is ignored, Non-Derogable obligations arising from assurances given directly to SC violated, does the SC really believe what it says? If Parliament can legislate for, can it not repeal?! Are myopic fools who demand codification of Muslim Law able to even see beyond their noses, leave alone reading between the lines? Recall Aligarh Muslim University and denial of minority character?

A reality check. Can it not be alleged that the aasthaa of Hindus is equally attached to other important temples, wherefore 1991 Act is discriminatory, excludes only Babri Masjid, every Hindu does not revere Lord Ram the most, others revere Lord Krishna more, yet others Lord Shiva or Lord Vishnu more. Can a future SC Bench not strike down the 1991 Act as discriminatory, violating Article 14…?

Recall what SC said: “Matters of faith and belief … personal realm of a believer. … sustains solace to soul … inscrutable. Whether a belief is justified lies beyond ken of judicial inquiry. Once the court has intrinsic material to accept faith or belief is genuine, not pretense, it must defer to the belief of worshipper.”  Here lies the Law of Evidence.  Muslims too have beliefs, and Constitution and Article 14.

You explain the Act does not discriminate between equals, makes “reasonable classification” differentiating between un-equals, which ones were not ongoing disputes in 1991… you’re stopped again: Did not SC say “absence of evidence is not evidence of absence”? Hindus have been agitating for these also. You explain again Babri Masjid was excluded from 1991 Act to others Limitation law will apply. Laughter! You think so? 400 years jettisoned, Limitation Act has shown the door, we’ll start now!  The limitation doesn’t apply to trusts, to Waqfs, so… add Temples.

Constitutional protection was violated, allowed to succeed once. Now that majoritarianism has tasted blood, it will try again. What is SC’s “reassurance” based on? The Act of 1991 excludes Babri Masjid by name. It applies… “except to” that Masjid. Read para 85 of SC’s judgement. “Section 4(1) stipulates religious character of a place of worship as on 15 August 1947 shall be maintained …exception proviso to sub-sec. (2) where proceeding instituted on the ground conversion of the religious character of a place of worship taken place after 15 August 1947 and legal action was pending at the commencement of Places of Worship Act.”  Are both these criteria not fully met in the case of the Babri Masjid?! Wow! So that is why it was excluded!

Reality check again : (i) What was the basis for exclusion of Babri Masjid from the Act since its change in character in 1949 is after 1947 and already a proceeding was pending in court? (ii) If such a result (SC allowed the claim for handing over Babri Masjid to Hindus against admitted 400+ years of it being with Muslims) flows from the enactment is not the enactment specifically calibrated to engineer the successful result of that particular claim? (iii) Ergo, does it not qualify as a colourable exercise of legislation and is it not a violation of the principles that stand quoted earlier in the judgement referring to what his lordship justice Jeevan Reddy said? (iv) Should not Supreme Court have struck down that exclusion of Babri Masjid as being contrary to the scheme of the enactment and guarantees enshrined in the constitution, instead of deciding on the basis of that illogical law? (v) From passing such legislation, opening locks to permit one type of worship, prohibiting another type, allowing collection of lakhs of Kar Sevaks knowing fully well-armed forces would not fire into such a crowd killing thousands, allowing movement of lakhs of Shilanyas, judiciary not passing any Suo Motu order to restrain activity there, a series of amazing happy “coincidences” all culminating in a predetermined result is there for the world to see?  All institutions synergising to achieve the impossible shows us how inclusive and co-operative India has become. Who says the age of miracles is over?

“Much cannot be attributed to negative inferences based on what a book does not contain. Absence of reference to temple may not be evidence of absence of a temple.” Reality check. Imagine tussle between Bhakts of Lords Shiva and Vishnu: imagine one are in a majority: one claims their temple was destroyed to make another of the other. Court proceedings commence. What would the side claiming relief desire? That there should be justice based on rule of law, or judgement based on claimed faith of the majority, De Hors acceptable evidence? See where the precedent the SC set leads to? The issue is not Masjid, nor Muslims, but Rule of Law. The plasticity of the human brain is such it constantly rewires itself. Each new experience creates a brain change. Thoughts breed words which breed actions. Reading the SC judgement, will future citizens not be justified in concluding a sell-out of justice is the price of peace in the land? Legally trained brains in the entire world, not just among Muslims, see the damage, and their concern, unspoken, is real. Great nations are built on foundations of justice. Will India of the future see institutions killed by actions of the very people who occupy their seats of honour? Judges swear to uphold, in that order, the Constitution and the Law, and long judicial precedent shows unjust arbitrary discriminatory laws struck down. Mistakes made can be corrected. It takes courage to admit a mistake, to reverse one’s stand. Some mistakes hold up nations to ridicule. International opprobrium is difficult to live with. Judges should exemplify judicious courage, not take the easy way out.

Shafeeq R. Mahajir is a seasoned lawyer based in Hyderabad.

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