Thank you Captain Amazing. Now it makes more sense to me.
The other bit is that according to The Economist’s take
The court (thanks for the link) finds that the mosque was built over a site that was the ruins of a previous, already destroyed Hindu temple - and such actions are not unheard of, as a demonstration of a conquering culture’s dominance. (The Al-Aqsa mosque, for example, is built over the site of the Second Temple’s ruins, and the Crusaders converted that into a church while they were in charge - and then when gone the Muslims made it mosque once more.) But conflicting news reports do not make clear the evidence for the Hindu claims. It seems that holding it as Lord Rams birthplace is accepted because the religious Hindus believe it to be so, and for that reason alone. One wonders if the jurists had the ruling in mind first, as the compromise that would cause the least anger on all sides, and came up with the legal theory to justify it after …
It’s been noted above, but, recall, the mosque was built in 1527. My feelings are that, after nearly half a millenium, it’s futile to try and reverse ownership by reference to perceived illegitimacy in its original acquisition. But grudges run long…
Oh just a quick contribution to that “debate” - according to the court’s findings the circumstance prior to the rise of Hindu Nationalism was
So they seemingly did share holy ground for years, without killing each other … there at least. And most reads of this controversy place the odds of new violence over this to be small. As the Economist article I linked to stated:
Thanks for the site. According to your link, the treatment of deities as persons subject to the law of the land seems to stem from Hinduism itself. As for Muhammed, from the link above
I know that India has personal laws which codify events like marriage, divorce, adoption and inheritance, and that each community has its own personal laws. E.g. moslems are allowed to practice polygamy, while hindus are not. Perhaps the right to worship is also covered by the personal laws? At any rate, even if Rama achieves personhood under Indian law, how can one prove that he was born at a given location, given that this event occurred several millennia ago?
This Times of India article (How the Lord became a litigant | India News - Times of India) refers to a few earlier Supreme court judgements, wherein deities were represented by either temple priests or by the management. Since the purpose then was to arrange for either better management of holy sites, or a more charitable use of the donations from the devotees, little attention was paid by the media to this reduction of a supposedly omnipresent, all-powerful being to a mere litigant (and that too, before the notoriously slow Indian courts). In fact, here is an earlier case (BBC NEWS | South Asia | Hindu gods get summons from court) wherein a court in Jharkhand state put up an advertisement in a newspaper, requesting that the involved deities appear in person before the judge, by such-and-such date, or forfeit their right to the ownership of a certain piece of land. No surprises that the involved deities were Ram and Hanuman – they seem to have the most litigious followers, after all :D.
At any rate, if the potential consequences of this event weren’t so heinous (witness the 1992 riots), then all of us would have had a good laugh at the courts, and attributed it to yet another eccentricity of the “great Indian demo-crazy”. But as it stands, the present ruling is, IMO, ridiculous, and sets an extremely dangerous precedent. It makes an absolute travesty of the constitutional right to worship freely and the protection of minority rights.for one thing. And a joke out of the very definition of divinity, for another.
I’m not sure for how long the ka-ching of cash registers will drown out the chants of the fanatics. Locally, it has been pretty quiet, but that is at least in part due to the strict security orders which were implemented as a precaution. There was definitely a miasma of fear in the air on Thursday. The courts would have done better to suggest that both communities use the land for some common good (e.g. build a hospital), since there is no way of proving that Rama was actually born there.
Big deal. The Hindus and the Muslims have to split the land. I don’t see how giving a religious minority a share of the land (as opposed to seizing it away from them entirely) is some travesty for religious freedom. It’s not my preferred outcome, but I don’t see any reason to portray it with this hyperbolic language.
And note, I’m not talking about rioting or property destruction which should be (and was) condemned at the very least by the Indians who dealt the BJP a number of electoral setbacks in the next elections held after the destruction of the mosque.
Since I have a few more moments, I’ll just add…
The thing you have to realize about India is that up until 50 years ago, there wasn’t some unified property regime. There were hundreds of governments managing property issues. India has to deal with centuries upon centuries of religious law as well as deal with historical property regimes spanning centuries. It’s not like many places in India had formal title recording systems until relatively recently.
Additionally, many of these historical religious sites are either owned by the government or by quasi-governmental institutions. This isn’t really an area of Indian law I’m familiar with, but you can’t think of this site as the equivalent of your neighborhood church which is owned by some non-profit with a deed and title.
My preference would be not to have all these religious claims dealt with by courts. But sometimes claims based on religious law are the only claims that exist for a particular piece of property. If you were to remove those type of claims entirely, you could very well disposess a lot of people from their rightful land.
Now, I don’t know if India’s approach to dealing with religious claims like these is the correct one, and I’m not defending it. I’m just pointing out that there’s an inherent complexity in dealing with these issues in a country like India.
I don’t know if you can separate the decision from the rioting, though. I mean, would this decision have been made this way the mosque hadn’t been destroyed? It seems like this decision legitimizes the mosque destruction.
There’s been off-and-on litigation and legal action surrounding the site well before the mosque’s destruction. This case necessarily had to deal with that issue, but if the mosque hadn’t been destroyed, my guess is there would have been some other litigation or governmental inquiry into the issue. I vaguely recall some type of inquiry was underway at the time of the destruction, but I’m not able to find anything, so I might be mistaken on that point.
Maybe this particular ruling will finally settle things for good (we can always hope).
What is the significance of the site to the various factions? It looks like a mosque was destroyed that was built over a Hindu temple that was destroyed. Is there particular significance to the area itself to any of the religions involved beyond a time stamp?
The King Solomon “divide the land” solution seems pointless when other sites could be secured for the parties involved.
Unfortunately, a big deal is exactly what it is. The correct outcome would have been for the courts to say that since Rama had no known physical existence, no unique space-time coordinate can be assigned to his birth, and therefore there is no question of the site being “ram-janmabhoomi” (the birth place of Rama). On the question of whether the Muslims have the right to a mosque which was constructed on the site of destroyed Hindu temple, the most logical response from the court could have been as follows: Since the Babri mosque was constructed sometime in 1500s (documented archaeologically), long before India itself existed as a single nation under its present constitution, therefore, the state should not be expected to judge over something that did not occur within/during its jurisdiction. In conclusion, the land should have been returned back to the Muslims, to do with as they pleased. Ideally, the Muslims would then use the land for some humane cause, and/or voluntarily allow Hindus to worship there, as they used to do before the mid-1800s. In any case, ideal achieved or not, such a ruling would have upheld the right to worship, and the right to ownership of land, which is what a just court in a secular nation is supposed to do.
Consider the alternative – many Islamic Indian monuments, supposedly even the Taj Mahal (see www.bbc.co.uk/dna/h2g2/alabaster/A5220) are built on the site of some temple, often using material from the destroyed temple. Several temples themselves are constructed from ruins of older, Buddhist and Jain monuments. Some of them are now world heritage sites. Under the present ruling, what is to stop Hindu, Buddhist or Jain fundamentalists from demanding that these monuments be returned back to their “original community”, whatever that was? In 2000, the supreme court of India dismissed a petition to have the Taj declared as a Hindu site… given this 2010 ruling, it will probably have to work much harder if it is to uphold the integrity of the Indian nation.
Finally, the riots in 1992 did not lead to the (hindu fundamentalist) BJP’s electoral setback. In the next general elections (1996), BJP gained enough seats for there to be no clear majority in the parliament – a hung parliament existed until 1998, and BJP came into majority after that. The voters appeared to have equally apportioned the blame for the riots on the then-ruling congress party, and on BJP. Which is not surprising, given that below a thin veneer of secularism, most Indians will first identify themselves with their community, and then with their country. It is true that India is pretty calm given the present ruling, but that is only because the majority community sees it as a victory of sorts, and because there is money to be made and jobs to go to. Neither reason appears to bode well for India’s future as a single, secular, nation… 
Imagine in America a court ruling that Christ had no known physical existence; or an Israeli court ruling the same about Moses. You are proposing not that they keep church and state separate, but that the state rule that religious beliefs are false. That won’t fly.
I can agree with the logic of your proposal, but note the latter part of your post. India is pretty calm with this ruling. That’s the pragmatism of the ruling. Each side got enough to keep them mollified and violence is avoided. The location matters to the fundamentalist Hindus; rebuilding a mosque there, not allowing a Hindu temple over the site they believe is particularly holy, would not have been as likely to have that result. OTOH having each side go on record saying that they will live by the court’s decisions (if it holds on appeal) and commit to that process of rule of law even if they are not completely happy with the outcome and it means they must {shudder} live and worship side by side … I cannot see how that does not bode well for a single diverse nation, secular in the American sense of religious tolerance (not the more European sense).
I think it’s important to note that there were legal disputes over the mosque going back to the 19th century. Secondly when it came to power the Indian government every right to decide under its own laws what the status of the property was. It decided very early in 1949 that the property was disputed and now finally the Allahabad high court has resolved the dispute with its property sharing formula. It’s not as if any party had a clearcut right to the property under Indian law.
Incidentally I would note that one of the two judges in the majority was a Muslim. While that’s not relevant from a legal perspective it is important from a symbolic and political point of view and will hopefully increase the perceived legitimacy of this decision.
You are assuming that the court actually made this ruling in this sense. I don’t know that. For all I know they might have ruled that it is the historically attributed birthplace. I can’t make head or tales of the ruling that was posted. Common law systems have all sorts of artificial legal entities and constructions. This could be one of those.
This is a ridiculous approach. India, like any other country in the old world, has to deal with property issues that existed before it’s inception. Your proposition would limit India to only dealing with issues from 1950 onwards. That’s not logical at all. Under this proposition, if the Madras Presidency gave me a deed in Bangalore, it would be beyond the jurisdiction of the Indian courts to settle any dispute regarding that deed. If we took your approach, pretty much nobody in India could turn to the courts for a property dispute. If we then carried your approach to its logical conclusion, the Indian government wouldn’t be able to regulate property anywhere in the country!
I’m going to need a cite that the land in question is actually owned by the Muslims. If this site follows the usual pattern, then it is either owned by the Indian government, a state government, or a quasi-governmental agency, and therefore, there is nobody to return it to. If the government actually does own the land, then what we are debating is who gets to use it, not who gets to own it. So, since you’re such an expert on Indian law, how about ponying up a citation as to actual ownership.
Since the ruling allows both Hindus and Muslims to worship there, it already upholds the right to worship. AFAIK, the thing about right to ownership of land is just something you’ve pulled out of thin air. If the mosque was indeed built by Babar, then it was owned by the Mughal Empire, which was succeeded by the British Raj and then the Indian government. Which would mean that the Indian government is the rightful owner of the land. If you have a cite that shows otherwise, I’m willing to be corrected, but until then, I’ll assume you are just making it up.
There was never anything to stop them “demanding” anything. In India, like in most countries, anyone can petition the government or the courts for redress. As for the Supreme Court “having to work harder” that doesn’t even make any sense. The highest court doesn’t bend to lower court rulings. It’s the other way around.
India’s survived much worse. I doubt this will make it fall apart, despite whatever histrionics you want to engage in. I think you’ve just got some desire to bash India, and this case makes a good excuse for doing so.
Correction: IIRC, Bangalore wasn’t part of the Madras Presidency and therefore they couldn’t have given me a deed there. Feel free to substitute an appropriate city.
I’ll take a shot at it.
Land or no land, holy ground or not, they’ll still keep killing each other. Death to the infidel, destroy the unbeliever, and all of that stuff. The “holy property” is just an excuse.
Thanks for posting this. It was very informative. This isn’t a detailed treatise or anything, and since I’m not trained in Indian law, I’m going to take a stab at filling in the blanks. If anyone has any background to add or wants to correct, please feel free.
Think of it this way. Some rich dude built a temple hundreds of years ago. That guy is long dead. There’s no formal deed or title system surrounding the temple. So, who owns the temple? You could say the government owns the temple. Or you could say that the temple is an entity unto itself with its own legal rights. Or, you could say the temple is owned by “Lord Ram” which is an artificial legal construction meant to represent the temple. Then the government or the courts appoint an organization or an individual to represent Lord Ram, the legal entity. My guess is something along these lines forms the basis for the development of the deities as juristic persons. If a modern court has to deal with court decisions from hundreds of years ago that treated temples this way (and remember, common law courts are supposed to at least acknowledge prior decisions, whether or not they overrule them), then you might just continue with this approach, because taking another approach would upend or throw into disarray a lot of property rights. I don’t know if this is exactly what happened, but I think there’s something along these lines. There’s probably a political component too, since most courts (even in the West) are reluctant to outright dismiss religious beliefs as being untrue. They will usually find a way to circumvent around the issue of truth or untruth.
Now, as to why a mosque isn’t a “juristic person,” if I’m reading the article correctly, it appears that the court can declare a religious building an entity unto itself, which would give it entity rights similar to a juristic person. So, a mosque can obtain rights that way (I think). It also appears to me that a mosque specifically dedicated to a Muslim scholar or saint (the way the Dome of the Rock is said to be where Mohammed ascended) would be amenable to arguments giving a mosque juristic person status.
Again, I’m just trying to make a guess as to what’s going on. I really am not familiar with this area of law.
Actually the article does explain why a mosque isn’t a juristic person.
These principles were developed during the Raj when the British were for the most part trying to respect the religious law of the different communities they ruled. So they appear to have concluded that Islam did not permit the concept of a “juristic person” in a legal/religious context but Hinduism and Sikhism did.
That’s the conclusion the blogger draws. I’m not sure I agree with his reading of the cases he cited. I think there’s a potential argument to be made in the certain specific cases I outlined.