The Inclusive Nature and Structure Of Indian Secularism
This blog is inscribed by Shreshth Srivastava.
The concept of secularism in Indian Context can be defined as “Religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution”.
The Judgement of M Siddiq (D) Thr Lrs v.Mahant Suresh Das and Others, 2019 SCC OnLine SC 1440 is a ‘Legal Disaster’, this particular judgement has sabotaged the very structure and inclusive nature of secularism. The word ‘Religion’ does not have any definition but undoubtedly the word ‘tolerance’ has to be equated with any definition of the religion. This blog provides that why Ayodha Verdict has imperiled all these principles.
India is a pluralistic society and a country of religions. It is inhabited by people of many religions. The framers of the Constitution thus desired to introduce the concept of secularism, meaning state neutrality in matters of religion[i]. They also wanted to confer religious freedom on various religious groups. Religion has been a very volatile subject in India before and after independence and hence the constitution ensures state neutrality in this area.
In M. Ismail Faruqi v. Union of India[ii] regarding the concept of secularism it was held that “It is clear from the constitutional scheme that it guarantees equality in the matter of religion. The Preamble of the constitution read in Particular with Article 25 to 28 emphasizes this aspect. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting pattern of the scheme in our Constitution”.
The judgement of M Siddiq (D) Thr Lrs. v. Mahant Suresh Das and others[iii]is an indentation to secularism, it was held that “Irrespective of the status of mosque under the Muslim Law applicable in the Islamic Countries, the status of a mosque under the Mahomedan Law applicable in Secular India is the same and equal to that of any other place of worship of any religion; and it does not enjoy any greater immunity from acquisition in exercise of the sovereign or prerogative power of the State, than that of the places of worship of the other religions”.
The Supreme Court while evaluating the ASI report held that “There are no records to show that whether a temple existed or not, but the ASI have claimed that there exists a Non-Islamic Structure”[iv]. After evaluating the judgment, it looks like not only the ASI but even the Supreme Court was having a notion that the mosque was built by demolishing an existing structure. The court held that the land grants is an ‘act of restitution’ for a wrong, but the researchers would like to quote this judgment is a reward for those who carried the act of vandalism. The question which arises here is does the Ayodhya Judgement privilege “faith” over “facts”?
Theory of Adverse Possession
The Theory of ‘Adverse Possession’ as incorporated in the Articles 64 and 65 of the limitation act 1963 is determined on the basis of pristine presumption of the cultivation entry in the Adangal in the civil suits either against the individual or the Government[v].
The main contention of the Muslim parties was that even if there exited a Hindu temple on the disputed site, the Mosque was built by Babur over 400 years ago, and that Muslims have been enjoying possession over the land since. It was argued that such long, exclusive and continuous possession would extinguish the right, the title and interest of the temple and of the Hindu public.
But the court held that “The plaintiffs have failed to adopt a clear stand evidently because they are conscious of the fact that in pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the person or the entity against whom the plea of adverse possession has not been adequately set up in the pleadings and as noted above, has not been put-forth with any certitude in the course of the submissions.”
In Amendra Pratap Singh v. Tej Bahadhur Prajapati[vi]the court held that, “the process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. Thus, a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by law is an adverse possession and there cannot be a fixed timeline to prove adverse possession”
Theory of Loss Grant
Under this doctrine, a long, unabating use or possession points to a legal presumption that the right to use was previously conveyed to the user and that the instrument of conveyance has been lost. The Court noted that enjoyment since the time of legal memory is to be viewed as an augury that the right claimed had been vouchsafed on the claimant by a grant and hence the plea of loss grant was also dismissed.
The apex court in Mallikarjunaiah v. Nanjaiah[vii] held that “Mere continuous possession, howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.” The court held that the Muslim parties were not able to prove their possession between 1526 and 1858, whereas the riots which broke out sets an example the strong belief of the Hindu parties over the siputed land, hence this pleas was also rejected. The question which arises here is that nowhere in the history the construction and destruction of such temple is recorded, so how this preponderance of probability was established?
The Researcher would like to conclude that this verdict has been a peremptory verdict not based on the secular nature of this country which is against the basic structure of the Constitution of India. Constitution of India is the creation of a constituent act and is an extraordinary legislation derived direct from the people and acting in their sovereign capacity for setting up the structure of the Government. The exact definition of Religion cannot be drafted because it is the matter of one’s belief and it is not only the duty of the State to protect this “belief” but it is also the duty of the citizens to protect this belief and this can be done through value based education.
[i] MP Jain, Indian Constitutional Law 1103 (6th ed., 2019).
[ii] AIR 1995 SC 105.
[iii] 2019 SCC OnLine 1440.
[v] A. Ratnavelu, Legal Sanctity for the Entries of Cultivation Record by Transparency, 3 LW JS 9 (2005).
[vi] (2004) 10 SCC 65.
[vii] AIR 2019 SC 198.