Iqbal A. Ansari on Constitutionality of Legislation to Hand-over Babari Masjid Site to VHP

 

The BJP leaders have expressed the view that in the event of the Supreme Court ruling in favour of restoration of the mosque at its site in Ayodhya, an enactment by Parliament overturning the verdict a la Shah Bano case will pave the way for lawful construction of the Ram temple at the site.

But the analogy of the enactment of the Muslim Women's (Protection of Rights on Divorce) Act 1986 reversing the judgement of the apex court in the Shah Bano case does not hold good in the Ayodhya case. A desirable mode of securing the divorcee's right to maintenance lies in the domain of social policy, which is a matter of opinion, whereas the Ayodhya case is essentially a dispute over title to a property which had existed for more than four hundred years.

Enactment of fresh laws or even amending the Constitution to reverse the effect of the apex court's rulings in cases that relate to social, economic, cultural or  political party is a normal function of a sovereign Parliament. The first Constitutional amendment incorporating proviso (4) to Article 15 is a good example of this. But such policy-oriented legislations reversing the effect of the rulings of the Supreme Court cannot provide justification for Parliament to dispossess the rightful owners and users of a property after their claim to title has been established by the apex court, and to transfer it to those who claim that their forefathers had been wronged more than 400 years ago. Such a solution lies outside the competence of Parliament. it can only acquire any such land or building for the public good, without favouring one religion against the other.                                (Source: The Indian Express,25 June, 1998)






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