This article is written by Aarlin Moncy, from HILSR, School of Law, Jamia Hamdard. This article will give you a brief idea about the 2019 landmark judgement which was more than a century old, land dispute between the two religious communities and what was the jurisprudence behind the verdict.
Table of Contents
Background and introduction
Ayodhya-Ram Janmabhoomi Land dispute is over 200+ years old, historical, religious and political feud between the two communities, i.e. Hindus and Muslims. The 2019 verdict pronounced by the Constitutional bench of five judges headed by then Chief Justice of India, Ranjan Gogoi, is a landmark judgement in many aspects such as in the Constitutional aspect and even with respect to the communal tension which was there since ages, regarding this land dispute which turned into a political and communal war between the two communities.
This disputed land is located in the Faizabad district of the State of Uttar Pradesh. The dispute was particularly based on the title dispute, whether the 2.77 acres of (Disputed) land belonged to the Hindu community or the Muslim. But, this dispute soon took a communal turn and caused a lot of damage both to the Indian land and human lives. This dispute was first recorded in the British era in the late 19th Century as the “Disputed land” back then was shared by both the communities together. The inner portion/courtyard was used to offer prayer and worship by the Muslims and the outside portion/courtyard or the Ram Chabutra was used for worship by the Hindu devotees. The Mosque and the Chabutra were divided by a pukka grill wall.
As per records, we can say that since the 19th Century, the Hindus wanted to construct a Temple at the outer portion, but their plea was rejected multiple times by the British courts. The District sub-judge of Faizabad in his judgement on 24th December 1885, held that “it would be against public policy to permit the construction of the temple, as the sound of bells and the shankh, common to Hindu rituals, would lead to greater conflict when Muslims passed that way; greater conflict could lead to another riot and the massacre of thousands of people”.
Later on 23rd December 1949, two idols of Hindu deities were placed inside the Mosque in order to desecrate the Mosque and then on 6th December 1992, the Kar Sevaks demolished the Mosque and since then till the 2019 verdict, the Land was untouched and multiple appeals and petitions were filed in order to take back the possession.
This article will not only explain the 2019 judgement but moreover will try to explain the jurisprudence or the philosophy behind said judgement.
Two Jurisprudence Approaches
In order to understand the philosophy or the jurisprudence behind this judgement, the author has taken two of the important Schools of thought. The two Schools of thought are:-
Historical School of Jurisprudence
This School of thought by the name itself one can assume about the significance it gives to History and it’s supporting sources. This School completely focuses on the History of a society, and only through the given history, laws can be made or further amended in order to develop as a society. Laws are not only for certain groups in a society, rather they are for the entire society, but then the question which arises is that, if the law is for the entire society, then what will be the source from which laws can be made or taken. That is why, history plays an important role in this School of thought. When we try to understand the history of a nation or a society, then we come across certain traditions, customs, beliefs which are in fact followed for several years and are considered to be sacred laws governing that nation or a society. Friedrich Carl Von Savigny is known as the founder of this School of thought. Savigny described law as language because it evolves and develops by the direct forces of religion, customs, habits and traditions followed in a nation or society.
On the other hand, Sir Henry Maine was the founder and chief exponent of the English historical school of jurisprudence. Maine stated that “The movement of progressive societies has hitherto been a movement from status to contract”. This generally means that earlier there was a fixed status of an individual against his/her will but with the progress of civilisation, now there is individual freedom and liberty and everything is the consequence of the free will. In the Indian context, this free will is not absolute in nature, as there is a State’s reasonable restriction on our fundamental rights.
To summarise the above paras, this School of thought emphasizes on Customs as the source of law for the society. It is not a set of rules, rather it changes keeping in mind the past and present events of a society.
Sociological School of Jurisprudence
This School of thought was greatly influenced by the Historical School and the jurists involved in it. The reason behind it is that both the Schools consider society as the basis of law making, both the Schools accept the fact that there is a certain kind of relation between law and society. This School of thought further clarified the issues and criticisms raised against Historical School as it only considered customs, religion and beliefs of a society as the source of law, it only took primitive sources while considering what ought to be the law for a society or nation. Whereas, in Sociological School of Jurisprudence, the relationship of a society with its law and law-making was emphasized, stating that laws shall change according to the need of a nation or society and this process is evergoing. This School describes law as a social phenomenon and examines law with respect to its impact on a nation or society. There are over four jurists involved in the development of this School, and they are:
- Ihering- He stated that, “ the success of law depends upon the degree in which such a balance is achieved”. For him, law never served the individual interests but rather as a way to the good of the society.
- Ehrlich– According to him, law constitutes social facts and doesn’t depend on state authority but depends on social compulsion. He further states that the real source of law is not statutes or precedents, rather the activities of society itself.
- Leon Duguit– He introduced the term ‘Social Solidarity’. Solidarity is nothing but the fact of interdependence which unites the people in a society and in a nation and law should be the mechanism to promote or provide for social solidarity.
- Roscoe Pound– He coined the term ‘Social engineering’. It means that social engineers should help in inventing and discovering new ways to prevent social problems through law. He also states that jurisprudence should seek an improvement of the law with respect to the society’s need, so that the law may do greater good.
Jurisprudence behind this judgement
There is no direct answer to this question because of the fact that this dispute has its own history and many people have suffered and were sacrificed during the entire timeline of this dispute. The fact that this is an exceptional case where two religious communities were colliding with each other over a piece of land, both religious as well as human sentiments were attached with this dispute. Sadly, this dispute turned into a communal dispute rather than a land dispute, that’s why it is not easy to just give an instant answer as to which jurisprudence was applied. The fact that this judgement was unanimously pronounced by the Hon’ble bench and the author is still not known, this itself shows how serious the judgement was to the entire country.
This judgement is purely based on the relevance of the historical evidence placed by both sides. Now, coming to the verdict and then explaining the jurisprudence behind it. The Hon’ble Supreme Court of India, was satisfied and convinced by the historical evidence and arguments put forth by the Hindu side and the verdict was in favour of them, permitting the Hindu community to build the temple and take possession of the disputed land but before doing so, the court directed that the Central Government shall constitute a trust who will be taking care of the construction of the Temple in Ayodhya. Whereas, the judgement also held that it doesn’t justify the desecration and demolition of the Mosque and it states that it was against the rule of law and further offers the Muslim side a piece of 5 acres of land.
As earlier stated the entire judgement is based on historical evidence, customs, faith and beliefs. This certainly proves that the philosophy or the jurisprudence preferred by the Hon’ble court was somewhat the Historical school, as only the historical school focuses on religion, beliefs, customs as a source of law. The evidence provided by the Hindu side showed exclusive rights over the disputed land. The fact that the Mosque was earlier demolished by the kar sevaks and no one was penalised for the same, still remains a big question against the Government and the judiciary as to whether mobs are held liable in such a situation. Clearly, the demolition of the Mosque is and will always be a dark day for our Country’s constitutional principles and the rights which our constitution guarantees us. In the judgement, you’ll find words like, beliefs, customs, religion, faith multiple times.
This judgement is not completely based on the principles of the historical school, rather it has a little touch to the Sociological school, as one can’t ignore that the said school of thought is based on the relation of law with the society and law changes as per the needs of the changing society. This judgement tried to focus on the same, as before this final verdict by the Apex court, other courts since 19th Century, either tried to settle the dispute by stopping the Hindu community from possessing any rights over the land and later in the 2010 Allahabad High Court verdict, it tried to accommodate both the sides and divided the land between the parties. We can see that the law regarding the title of the land was changing right from the first dispute.
Hence, in order to weigh which side of the suit had a stronger claim against the disputed land, the Hon’ble court relied on the Historical school of jurisprudence, and in order to set aside the previous judgements, the court has relied on the Sociological school of jurisprudence.
The importance of this judgement
The importance of this judgement is that it’s been a dispute since centuries, and finally the Apex court has put a FULL-STOP to this age old dispute. As before the pronouncement of this judgement, there was too much communal tension inside the country which is not at all good for the country’s development as there is always a risk of any danger to the national security, and the public at large. This dispute was not only communal but was very controversial as human emotions and religious sentiments were attached with this issue. People in both communities were deeply impacted before and after the verdict. Lastly, this judgement also put an end to all the other disputed lands of our country located at places where Hindus claimed their right over the mosque.
Possibly this was the only way to protect the public at large and their interests and promote unity and brotherhood as promised by the Preamble of our Constitution. This judgment tried to bring down the communal tension which was built up since centuries.
The role of judges in making and developing of law
The role of the judges, especially the Supreme court judges is very important as when it comes to lawmaking and its development. The Constitution of India under Article 142 gives special power to the Supreme court to do justice, uphold equity and good conscience when the law(s) is not sufficient enough to protect or provide justice to the parties by passing an order/decree.
The court in this case as well as in multiple cases, have used the said provision in order to provide and prevail complete justice. In the Ayodhya verdict (2019), the word “equity” is mentioned more than 100 times, in the said judgement, the court used article 142, in order to provide complete justice to both the parties. That’s why even the Muslim side was offered a piece of 5 acres and the disputed land was given to the trust and the Central government was directed to constitute a trust, which shall take the responsibility of the construction of the temple. Hence, both the relief and the order granted by the Hon’ble court was only through it’s special powers vested under Article 142.
Even the Sociological school of jurisprudence allows judges to make laws for the betterment of the society. As per this school of thought, laws should keep on changing depending upon the needs of the concerned society and only the judiciary has the power to interpret laws, review it and make necessary changes to it. That is why the High Courts and Supreme Court of India are also known as the Constitutional courts as they focus on the question of laws, such as whether constitutional or unconstitutional? This gives such courts and the judges the authority in deciding and interpreting the laws and making necessary changes to it. Few examples of judgements where, judges have helped in making new laws and developing the earlier laws are:-
- Joseph Shine v Union of India, 2018
- Navtej Singh Johar v Union of India, 2018
- Vishaka v State of Rajasthan, 1997
- M Siddiq (D) Thr Lrs v Mahant Suresh Das & Ors, 2019
Aftermath and communal tension or harmony
The aftermath or the impact of this judgement is a mixture of feelings, but this is not an issue, the Apex court is neither responsible for justifying their verdicts nor does it take feelings into consideration and even law also considers only facts and evidence. India is a diverse country, a land of many Gods, traditions, beliefs, customs, etc. The history of India is vast. Conflict is a part of civilisation, none can eliminate conflict rather one can prevent it from happening again. This verdict did the same, it prevented any future religious disputes to ever happen again in the name of their worship places. Communal tension can’t be eliminated by any verdict, rather politics is the root cause of communal violence or hatred. In order to bring harmony, the country has to be inclusive and not exclusive when it comes to decision making or lawmaking. Then only will there be a sense of secular spirit inside the nation.
Conclusion
From this article, one can understand how history and society are important in decision making. That in every judgement there is a philosophy behind it. That one has to set aside all of his/her prejudice when studying law. Jurisprudence helps us in understanding the intent or the purpose behind every law and judgement passed. It is important to understand the intent before having an opinion. There are some negatives about the judgement but keeping it aside, one can understand that the court has tried to accommodate each and every claim and even prior to the suit suggested mediation. Even mediation couldn’t help in this issue. Hopefully, our country will never witness another issue like this ever again because the 2019 verdict brings an end to many such future claims.
References
- The Dramatic Decade: Landmark Cases of Modern India by: Indu Bhan
- Jurisprudence: Legal theory by Prof. Nomita Aggarwal
- https://www.mondaq.com/india/trials-appeals-compensation/882136/article-142-constitution-of-india-declaration-of-law-implied-by-the-highest-court-of-land
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