Expert: Last-minute stand of Muslims made court secure in giving Ayodhya land to Hindus

On October 19, three day after the Supreme Court ended hearing in the case, lawyers of Muslim petitioners submitted a single-page note drafted by lead lawyer Rajeev Dhavan and signed by five Muslim lawyers left it to the court to “mould the relief” sought by Muslims. The note, obtained by Gulf News, was titled “Statement On Moulding The Relief” said: “The decision of this Hon’able court, whichever way it goes, will impact future generations. It will also have consequences for the polity of this country. This court’s decision may impact the minds of millions who are citizens and who believe in the constitutional values embraced by all when India was declared a republic on January 26, 1950.”

“Since the judgement of this court will have far reaching implications, it is for the court to consider the consequences of its historic judgement by moulding the relief in a fashion that will reflect the constitutional values that this great nation espouses. We hope that the court, in moulding the relief, upholds our multi-religious and multi-cultural values in resolving the issues confronting it. Moulding the relief is the responsibility of this court, which itself is the sentinel of our Constitution,” the second paragraph read.

The note ended by saying: “When moulding relief, this court must also consider how future generations will view this verdict”.

The note did not mention Babri Masjid or the disputed land or the original relief of declaration and possession of the dispute land sought by Muslims. In contrast, the moulding of relief statement submitted by Hindu petitioner Gopal Singh Visharad stuck to the original suit and clearly stated that the “birthplace of Ram is non-negotiable”.

What is moulding of relief?

In civil cases, the rights of petitioners are stated on the day the suit is filed. However, the Supreme Court, following a principle of American judicial system, can mould the rights in long-pending cases by taking into account new facts and events which have come into existence after the suits is filed. This principle adopted by the courts is called 'Moulding of Reliefs', according to an explanation by India legal portal Live Law. “This principle is traceable to an early decision of the Supreme Court of United States of America, Patterson v. State of Alabama,” the portal stated.

Was it a climb down by Muslims?

Gulf News spoke to two legal experts to understand the implication of this written submission by Muslims and whether this statement became the basis of the court verdict. “It is difficult to say what went on before the verdict. But the fact that five Muslim parties who signed the statement virtually left it to the court, I think, made the court feel more secure in whatever the verdict it was going to give. In other words, if the court has decided on something and supposing some parties had mounted opposition to it, then court may have tempered it down. But once a party says whatever you says fine, then whatever the court has in mind would go with that. So, in a sense they [Muslim petitioners] enabled the court or furthered the court in whatever verdict the court had in mind,” explained a senior lawyer who is closely involved in the Babri-Masjid-Ram temple case. This lawyer declined to be identified for this article.

What is the significance of moulding of relief?

The lawyer explained: “This is a complicated case and not a simple title suit. Therefore, it encompasses multiple things, one of them being the title. But it also encompasses going beyond that… here are two communities fighting over a piece of land. The court obviously had to travel beyond the confines of the title suit. When the court is doing that it is uncharted territory, because the pleadings of the parties are silent on that, the parties haven’t made arguments on those aspects. So, then the court says what is the relief you think we should mould?. Essentially, the court is not asking about the title suit or its outcome, but the court is asking the parties to think wider because the court is also the highest court in the country, exercising a very rare power under article 142. That power enables the court to do what we call ‘complete justice’. In order to do that, the court can travel outside the confines of the case and even contrary to the existing law… because the court recognizes that in some cases it will have to take a broader view. That’s what the court has done, apart from giving the 13,500 square metre of land to Hindus, it has talked about Places of Worship Act and it has emphasised on the secular fabric of the country.”

Why did Muslim petitioners leave it to court?

“I am not privy to what went in their minds but I think those Muslim parties were saying: ‘If we are going to win this case [then], we are in for huge problems.’ So, essentially, they were telling the court ‘please do something and think in national interest’. They wanted to the court to move away from what they had [originally] asked for in the case. They knew that if they win, its going to be [create] problems and if they lose like that [then] Hindus may demand Kashi and Mathura… So, essentially they were begging the court to do something what the court ultimately did. I won’t say that Muslims had given up their title but they realised that if they are going to win the title, there would be much larger problems for them,” the lawyer explained.

Rajeev Dhavan declined to speak to Gulf News on Saturday and at least one petitioner said he was not consulted when the moulding of relief statement was drafted.

Gulf News also spoke to Faizan Mustafa, a legal expert and vice-chancellor of a law university in Hyderabad. He said: “Moulding of relief is not central [to a case]… that does not impact either the judgement or anything else.” He, however, said that “moulding of relief is not routinely asked by the court”.

“In this case, a mediation was also being tried, so the court asked the petitioners ‘what can be done’. But the moulding of relief doesn’t violate your right and the court certainly cannot base its judgement on this,” he added.

He, however, said: “The Ayodhya verdict was pragmatic in the sense that it is trying to resolve the conflict and ensure lasting peace.”