SC queries Muslim parties on status of 'birthplace'

Muslim parties opposing claims of Hindus over the disputed Ram Janambhoomi-Babri masjid site on September 13 faced some searching questions from the Supreme Court which asked why the 'janmsthan' or birthplace of Lord Ram cannot have legal rights like a "juristic person" to seek title of the property.

A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi was told by senior advocate Rajeev Dhavan, appearing for Sunni Waqf Board and others including original litigant M Siddiq, that for the first time in 1989, deity 'Ram Lalla Virajman' and the birthplace moved the court as parties to seek claim over the disputed site.

He vehemently opposed the making of 'janmsthan' a party in the lawsuit filed by the deity through next friend Deoki Nandan Agrawal and said "this we did not encounter till 1989".

Dhavan told the bench, also comprising justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S A Nazeer, which was hearing the case on the 23rd day, as to how the piece of land can file the case and can have the status of "juristic person" to sue in a litigation.

He opposed the submissions of Hindu parties that it was their age-old belief, based on 'Skand Puran' and other religious texts, that Lord Ram took birth there.

The bench questioned Dhavan as to how the belief of Hindu worshippers can be challenged with regard to existence of 'janmasthan' and said the "sanctity of belief" that Lord Ram took birth there and whether it was genuine or "frivolous" can only be tested under Hinduism.

"What was discovered in 1989 either the belief that it was the birthplace or (the fact that) it (janmsthan) acquired legal sanctity," the bench asked.

"Your argument is that the 'janmsthan' was an area on the earth and it has the juristic personality which was something invented by them (Hindus) first time in 1989. The question is when was the occasion for anybody to assert that 'janmsthan' has the juristic personality," the bench said, adding that earlier there was no occasion for Hindus to say that the birth place has legal rights as a "juristic person".

Dhavan said, "you are asking me to answer the impossible."

Taking note of the fact that idols are "juristic person" having legal rights, the bench asked as to what were those features which rendered this status to idols and deities and they can be used to test the claim that the 'birthplace' also can have the same rights as "juristic person".

"What are those essential features in coming to the conclusion that idols are a juristic person and only then it can be dealt whether a property also can or cannot have the status of a juristic person," it asked.

The bench also asked Dhavan as to whether the land can acquire certain rights and suffer liability.

"If we go by their argument that entire area assumed the character of the deity then no other person will have any right over the property," Dhavan said.

The counsel for deity have argued that rivers, mountains and wells have been prayed by them and "my argument is this is a Vedic practice... you pray to the Sun, but not call it your territory", he said.

On the plea of Hindus that Lord Ram was 'swaymbhu', Dhavan said it meant that God has manifested himself at a place.

The bench then asked as to whether Kaaba at Mecca was 'swaymbhu'. The lawyer said that it was "intrinsically divine".

Dhavan summed up his response to the lawsuit filed by Nirmohi Akhara, which was granted one-third of the disputed 2.77-acre Ram Jamanbhoomi-Babri land by the Allahabad High Court.

He said Akhara indulged in "trade-off" with the next friend of the deity and said it would not challenge the maintainability of the lawsuit of the deity provided its (Akhara's) right as 'shebait' is not opposed.

On the issue of deity's lawsuit being filed by the next friend, Dhavan said it would create "havoc" if the court, instead of 'shebait', allows any person to file the case as a next friend.

"Ours is a country of religious endowments, everywhere. If your Lordships decide on next friend basis without proof, what will the consequence be. The consequence will be that next friend will be suing everywhere. This is a dangerous proposition," he said.

At the outset, senior advocate Zafaryab Jilani, appearing for Muslim parties, referred to documents, testimonies and other records in support of the claim that Muslims were never ousted during 1934 to 1949 and asserted that they have been offering namaz there on other days besides Fridays.

He said post-1934 riots, when some part of the disputed structure was damaged, Muslims were granted permission to access and repairs.

"It cannot be said that that building was being used as anything except mosque," he said.

"This shows that the building was being used as a mosque by Muslims and that is why only Muslims approached authorities regarding damage," he said.

The lawyer also referred to other orders with regard to compensation and repair of the building in 1934 and pointed out that it was on the basis of their application, the compensation was granted and the structure was repaired.

The bench will resume hearing on September 16.

The Allahabad High Court, in its judgment of 2010 on four civil lawsuits, had partitioned the 2.77-acre disputed land equally among Sunni Waqf Board, Nirmohi Akhara and Ram Lalla. Fourteen appeals have been filed in the Supreme Court against the verdict.