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Wednesday, May 28, 2008

The Judgement Vs the Interim Order

Arun Shourie
��The mandate (which the Act imposes upon the Central Government),�� the Supreme Court said in its 1994 judgement on the Ayodhya case, ��is that in managing the property so vested in the Central Government, the Central Government or the authorised person shall ensure maintenance of the status quo [and here the Court quoted merely reproduced -- for the second time within ten lines -- the words in the Act itself) in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janmabhumi-Babri Masjid, stood.��

There had been some discussion, the Court remarked alluding to the special pleading that had gone on, as to what exactly was meant by ��the area�� -- the ��entire area�� that had been taken over or what. But the provision itself sets out clearly what is meant, said the Court.

The meaning is not the entire area that had been taken over and was specified in the Schedule annexed to the Act, the Court held -- ��since the words which follow qualify its meaning confining it only to the site on which this structure, commonly known as the Ram Janmabhumi-Babri Masjid stood, which site or area is undoubtedly smaller and within the area specified in the Schedule.��

Moreover, the Court specified, the land over which the structure had stood has not been acquired to be held in perpetuity by the Government. It has not been acquired to be put to sundry use by the Government. The sole purpose for which it has been acquired, the Court specified, is to hand it back to its rightful owners -- Hindus or Muslims -- once the dispute about who owned it is settled.

The acquisition is not absolute, the Court declared. It is not for perpetuity. The relevant provisions are ��transitory�� ��for the purpose of its subsequent transfer to the person found entitled to it as a result of the adjudication of the dispute for the resolution of which this step was taken��.

The Presidential Reference also makes clear, the Supreme Court declared, that ��the acquisition of the disputed area was not meant to be absolute but limited to holding it as a statutory receiver till the resolution of the dispute; and then to transfer it...��

��The duty of the Central Government as the statutory receiver,�� the Court emphasised yet again, ��is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed land has been acquired.��

Contrast this emphatic, unambiguous, recurring declaration of the Supreme Court about what the purpose is for which the disputed land was acquired with the secularist clap-trap: the land must be used for building a hospital, a school, a playground, a park, a memorial... -- that is, for anything but for handing it back to the Hindus should they win the title-suit and thereafter reconstruct the temple -- the ancient, well-documented temple -- that Mir Baqi and his crew demolished.

That the disputed area has been acquired solely for this purpose, and that the mandate to maintain the status quo applies only to the disputed area was set out by the Supreme Court in its judgement not once, not twice, but at seven different places.

And there is a clear reason, said the Court, why the Act has mandated that the status quo be maintained on the disputed area till it is transferred back to its rightful owner.

��Unless the status quo is ensured,�� the Court explained, ��the final outcome on resolution of the disputed area may be frustrated by any change made in the disputed area which may frustrate the implementation of the result in favour of the successful party and render it meaningless.

A direction to maintain the status quo in the disputed property is a well-known method and the usual order made during the pendency of a dispute for preserving the property and protecting the interest of the true owner till the adjudication is made.��

Now, as is well known, the area over which the structure stood is but a fraction of the total area that the Government had acquired: the structure per se had covered just a third of an acre, the appurtenant platform etc. had covered another 2.5 acres or so; but the Government had taken over about sixty seven acres.

The only area over which there was a dispute about ownership -- the part over which there has been a dispute ever since the temple was destroyed -- are the one-third to 2.7 acres. Muslims have maintained that as they had acquired it and built a mosque on it long ago, it is their�s forever.

Hindus have maintained that it had been wrested from them by force, that what was sacred to them was razed, that they have never abandoned their ownership of it, that they have -- even when denied access to it -- continued to venerate it from the platforms, the bye-lanes around the spot.

After recounting the successive stages by which the Hindus have come to physically resume worship of the idols at the spot at least since 1949, the Supreme Court observed, ��On the other hand, at least since December 1949 the Muslims have not been offering worship at any place in the disputed site though, it may turn out at the trial of the suits that they had a right to do so.�� This limited area is what is known as the ��disputed area��.

About the rest of the area, the Supreme Court noted with emphasis, there is no dispute at all. "The narration of facts indicates," the Court said, "that the acquisition of properties under the Act affects the rights of both the communities and not merely those of the Muslim community.

The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining entire property acquired under the Act is such over which no title is claimed by the Muslims. A large part thereof consists of properties of Hindus of which the title is not even in dispute.��

The purpose for which this undisputed area had nonetheless been acquired was to ensure that, should courts ultimately decide that the disputed site in fact belongs to Muslims, they should not be prevented from enjoying the property by not having access to it.

Indeed, the Court went further. Elaborating on the significance of the words that had been used in the Act itself in this regard -- the words ��so far as may be�� -- the Court held, ��This provides for the situation of transfer being made, if necessary, at any stage and of any part of the (undisputed) property, since Section 7(2) is applicable only to the disputed area.��

Lest any authority use even this clear enunciation to hold on to the undisputed area, the Court added, ��The provision however does not countenance the dispute remaining unresolved or the situation continuing perpetually.

The embargo on transfer till adjudication, and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found to be unnecessary, as indicated.��

But are all the sixty-seven acres needed for this limited purpose? Should more be acquired to ensure full enjoyment by Muslims in the event they win the title suit? The Court�s answer was absolutely unambiguous: "... the extent of adjacent area considered necessary is in the domain of policy and not a matter for judicial scrutiny or a ground for testing the constitutional validity of the enactment...��

Because of its preoccupations at the time, the Government had not been able to determine, much less indicate to the Court how much and what parts of the undisputed area were required. The Court observed, ��However, at a later stage when the exact area acquired which is needed for achieving the professed purpose of acquisition can be determined, it would not merely be permissible but desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner.��

The Court did not just say, Government ��may�� or ��might�� return this undisputed area to its Hindu owners. It held that the Government is duty-bound to do so, that once it has determined what exact portion is needed for the limited purpose of enabling Muslims to enjoy the disputed site if the courts ultimately hold in their favour, the undisputed portion ��must�� be restored to the undisputed owners.

Contrast these emphatic, unambiguous, recurrent declarations of the Supreme Court with what has now been stated in the interim order. In this order, the judges state, ��Furthermore, no part of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the Government till the disposal of this writ petition nor shall any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith.��

How can this be squared with the judgement of the Constitution Bench on the case? Actually, there was one way to square the two. But that turned out to be a telltale embarrassment! In the paragraph preceding the one I have just quoted, the judges set out what they meant by ��the aforesaid land��.

Ordering that counter-affidavits and rejoinders be filed successively in four weeks each, the judges directed, ��In the meantime, we direct that on the 67.703 acres of land located in revenue plot Nos. 159 and 160 in village Kot Ramchandra which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumipuja, shall be permitted or allowed to take place.��

Only two revenue plots in just one revenue village. That left the overwhelming part of the undisputed land out of the Court�s order, and, therefore, one could have assumed that in some sense this interim order conforms to the judgement. But the omission had but to be brought to its attention, and the Court foreclosed that construction!

Yet that is but one of several reasons why the Prime Minister was entirely right when, during his response in the Rajya Sabha on 14 March, he said -- in the understatement so characteristic of him -- that the new order will have to be discussed in detail some day.

Indian Express
March 17, 2002

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