Parts of Ayodhya Judgment ‘laughable’, Different Standards of Proof ‘Unfair’: Faizan Mustafa
Nov 19, 2019
Parts of the Ayodhya judgment are “laughable” while a different standard of proof for Hindus and Muslims is “unfair” and wrong in the eyes of the law, says Faizan Mustafa, vice-chancellor of NALSAR University of Law in an exclusive interview with Karan Thapar.
Professor Mustafa, one of India’s foremost experts on the constitution, says the claim that there was no evidence of Islamic worship in the Babri Masjid from its construction in 1528 till 1857 is what makes the verdict “laughable”. Mustafa comprehensively discusses the Supreme Court’s Ayodhya judgment and the issues and questions arising out of it.
Speaking about the Supreme Court’s claim that “there is no account by them (Muslims) of … the offer of namaz in the mosque between the date of construction and 1856-57,” he makes several points.
First, he says the Court accepts this was a mosque which existed for over 450 years. The logical presumption is that it’s a functioning mosque where prayers were regularly said. If that presumption is to be disputed you need proof to do so.
Second, he says, the Supreme Court’s claim that there is no evidence of Muslim prayer in the inner structure between 1528 and 1857 would suggest the Court believes the mosque was defunct or disused for over 325 years. However, the Supreme Court has not said so. Consequently, the Supreme Court has got caught in its own inconsistencies.
Speaking about the fact the court decided “on a balance of probabilities”, Mustafa says that a better and more fair decision would have been to split the Babri Masjid site between Hindus and Muslims, though not necessarily equally, rather than give it entirely to Hindus.
He points out that when the judgment says “on a balance of probabilities, the evidence in respect of…the Hindus…stands on a better footing than the evidence adduced by the Muslims,” it clearly means both sides have evidence supporting their claim but the court believes the Hindu evidence is better. Therefore, splitting the site would have been a better decision than giving it entirely to one party.
Mustafa says a second infirmity in the judgment is that after stating the mosque was “desecrated” in 1949 and its demolition in 1992 was “an egregious violation of the law,” the land on which the mosque stood has been given to the party allegedly guilty of violating the law.
In this connection, he also points out that the main arguments advanced by the advocate of Ram Lalla were dismissed by the court but the outcome still favoured Ram Lalla. He also says there were good grounds for saying that the Ram Lalla case filed in 1989 should have been barred on the grounds of limitation of time.
Finally, the professor says that if the Supreme Court had adjudicated the case in circumstances where the mosque had not been demolished but was still standing, the judges would not have ordered its demolition and, therefore, they would not have given the land it stands on to the Hindus. He says it was the demolition of the mosque that made this possible.