LAW RESOURCE INDIA

Will Govt now live up to its commitment?

Posted in JUSTICE by NNLRJ INDIA on October 3, 2010

A SURYA PRAKASH IN THE PIONEER

It had promised to go by the answer to its 1993 Presidential Reference to SC on whether a temple existed below disputed structure

Now that the Allahabad High Court has delivered its judgement in the Ayodhya case and it is now an established fact that the Babri structure was built above a Hindu temple, it would be pertinent to revert to the proceedings before the Supreme Court in regard to the Presidential Reference made in January, 1993 and to the declarations and assertions made by the Union Government before the apex court on how it proposed to resolve the dispute. A five-judge Bench of the Supreme Court delivered its judgement in what is known as the Faruqui case ( Dr M Ismail Faruqui and Others vs Union of India and Others) while simultaneously disposing of the Presidential Reference that had been made in the previous year under Article 143(1) of the Constitution on October 24, 1994. In that reference the President asked the court the following question:

“Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhhoomi – Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?”. The court declined to answer this question. In the Faruqui case, the constitutional validity of Acquisition of Certain Area at Ayodhya Act, 1993 was challenged. The court upheld the Act but declared Section 4(3) of the Act, which provided for abatement of all pending suits and legal proceedings pertaining to the disputed structure, to be invalid. This meant the revival of all pending suits and legal proceedings before the Allahabad High Court. As regards the Presidential Reference, the court said it was “superfluous and unnecessary and does not require to be answered”.

The matter was heard by a five-judge Bench comprising Chief Justice MN Venkatachaliah, Justice AM Ahmadi, Justice JS Verma, Justice GN Ray and Justice SPBharucha. The majority judgement was written by Justice JS Verma on behalf of Chief Justice Venkatachaliah, himself and Justice Ray. The judgement pertained to the constitutional validity of the ordinance named ‘Acquisition of Certain Area at Ayodhya’ Ordinance on January 7, 1993 for acquisition of 67.703 acres of land in the Ram Janmabhoomi — Babri Masjid complex and the reference made by the President that very day to the Supreme Court under Article 143 of the Constitution. The ordinance was replaced by the Act. The Presidential Reference said “a dispute has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure, commonly known as the Ramjanmabhoomi-Babri Masjid) in the area in which the structure stood in village Kot Ramachandra in Ayodhya … And whereas notwithstanding the vesting of the aforesaid area in the Central Government under the said Ordinance the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India in terms of the said opinion”. Further, the reference said the question “is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court in terms of the said opinion…”

After this preamble, then President Shankar Dayal Sharma asked the court “Whether a Hindu temple or any Hindu religious structure existed” prior to the construction of the disputed structure. Those who opposed the Presidential Reference questioned the Central Government’s motive in making such a reference to the court. They said the question was “academic” and “vague” and did not serve any constitutional purpose. The Supreme Court asked the Solicitor General to clarify. The Solicitor General responded with a written statement on behalf of the Central Government on September 14, 1994. He said the Government would treat the finding of the Supreme Court on the question of fact raised in the Presidential Reference “as a verdict which is final and binding”. The Government would make efforts to resolve the controversy by a process of negotiations “in the light of the Supreme Court’s opinion and consistent with it”. The Government was confident that the opinion of the Supreme Court “will have a salutary effect on the attitudes of the communities and they will no longer take conflicting positions on the factual issue settled by the Supreme Court”.

The Solicitor General went on to say that if efforts at a negotiated settlement do not succeed, “Government is committed to enforce a solution in the light of the Supreme Court’s opinion and consistent with it. Government’s action in this regard will be even-handed in respect of both the communities. If the question referred is answered in the affirmative, namely, that a Hindu temple/structure did exist prior to the construction of the demolished structure, Government action will be in support of the wishes of the Hindu community. If, on the other hand, the question is answered in the negative, namely, that no such Hindu temple/structure existed at the relevant time, then Government action will be in support of the wishes of the Muslim community”. The Solicitor General’s statement formed a part of the record and was taken into account by the court.

The Supreme Court, however, held that the Presidential Reference was “superfluous and unnecessary” in view of its decision to uphold the validity of the Acquisition of Certain Area at Ayodhya Act, 1993, except Section 4(3). The court’s decision to strike down Section 4(3) resulted in the revival of the pending suits and legal proceedings. The court declared that the Presidential Reference cannot be treated “as an effective alternate dispute-resolution mechanism in substitution of the pending suits…”

“Muslims will voluntarily hand over …”

The White Paper published by the Central Government after the demolition of the Babri Masjid offers a clue as to why the Government posed that important question to the Supreme Court: The White Paper said: During the negotiations aimed at finding an amicable settlement, one issue that came to the fore was whether a Hindu temple had existed on the site occupied by the disputed structure and whether it was demolished on Babur’s orders for the construction of the Masjid. It was stated on behalf of the Muslim organisations, as well as by certain eminent historians, that there was no evidence in favour of either of these two assertions. It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily hand over the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and AIBMAC. This explains the purpose of the Presidential Reference and its specificity in regard to the existence or otherwise of a temple below the disputed structure.

Now that the Allahabad High Court ordered the ASI to excavate the site, accepted the ASI’s findings and concluded that there indeed was a temple below the disputed structure, the Union Government is bound by the commitment it made before the Supreme Court on September 14, 1994. It now has the answer to the question it posed via the Presidential Reference and will be morally and legally bound to live up to its commitment.

Decodingorder-II

  • Now that the Allahabad High Court ordered the ASI to excavate the site
  • Accepted the ASI’s findings and concluded that there indeed was a temple below the disputed structure
  • Union Government is bound by the commitment it made before the Supreme Court on September 14, 1994
  • It now has the answer to question it posed via Presidential Reference
  • Will be morally and legally bound to live up to its commitment–To be Continued
  • One Response

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    1. Venkatesh P. Dalwai said, on October 4, 2010 at 19:30

      Union Govt is though bound to act as per its assurences still with politices of our netas, it is very difficult to belive them now.


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