SC Order On Mathura Idgah Does Not Change Norm Gaining Ground On Disputed Structures

By K Raveendran

The Supreme Court order staying the Allahabad High Court decision to appoint an advocate commission to conduct a survey of the Krishna Janmabhoomi-Shahi Idgah complex in Mathura does not substantially alter the general approach of the judiciary with regard to the disputed places of worship, which is more in favour of faith rather than other issues.

The apex court order is based on technicalities rather than on substantive issues about the contentious claims, including the challenge to the Places of Worship Act of 1991, which is no longer considered unbreachable as per various judicial verdicts, including that in the dispute relating to the Ram Janmabhoomi in Ayodhya. In fact, the historic decision in that case has created a new template for the future, which is expected to witness increasing adoption in the days to come.

It is pertinent that the Supreme Court has only stayed the high court order to appoint the commission to conduct the survey and not the continuing of the proceedings in the main suit. “We are not issuing a complete stay,” the court clarified, adding that the stay order is related only to the implementation of the high court order to set up an advocate Commission for a survey of the site. The most important issue is whether the 1991 Act precludes any change with regard to the claims by rival parties. Over a dozen petitions are pending before the Allahabad High Court with the Hindu side claiming that the mosque was constructed by emperor Aurangzeb by demolishing a temple on the land of Krishna’s birthplace.

The Supreme Court has picked holes in the application by the Hindu side for the appointment of a commission to undertake a survey on the disputed structure. It has not gone beyond that point. “Can an application be made like this? We have reservations about the application. Look at the prayer. It’s so vague. Read it. You cannot make an omnibus application like this. You have to be very clear about what you want the local commissioner to do,” Justice Sanjiv Khanna, heading the two-member bench observed.

In May last year, the Allahabad High Court had transferred to itself all the suits on the Sri Krishna Janmabhoomi-Shahi Idgah Masjid dispute. The mosque committee approached the apex court challenging the transfer on the ground that all suits in connection with the dispute are pending and the high court should not have given an interim relief to the other side in the meantime. The Supreme Court was only upholding that argument. All other issues are still pending a final decision.

Essentially, the country’s Muslims lost their cause with regard to similar disputes on the day when a bench headed by the former Supreme Court chief justice Dipak Misra settled the issue on whether to refer the 1994 decision on what constitutes the essential form of Muslim worship. That decision was based on the conclusion that praying in a mosque is not an essential part of Islam and namaz by Muslims can be offered even in the open. The decision had a major bearing on the Allahabad High Court award in the Ayodhya land dispute in September 2010, when a three-judge bench partitioned the disputed site among Hindus, Muslims and the Nirmohi Akhara.

This has almost become an established norm and therefore will have bearing on all cases where ownership of places of worship is disputed on the ground that the present structures had been erected on the ruins of temples that once stood at those places. But the political fight over the issue would continue to rage, just as it is evident in the case of the new Ram Mandir at Ayodhya. Although the basic issue about the current controversy is about the use of the consecration event for political purposes by the BJP, the demolished Babri Majid continues to represent secularism as a symbol. But with secularism losing much of its flavour in the present dispensation, the dice is heavily loaded in favour of the old structures. (IPA Service)

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