The mosque as juristic person: law, public order and inter-religious disputes in India

ABSTRACT

The dispute between Muslims and Sikhs over the Shahidganj mosque in Lahore in the early 1930s served as the prelude to the Punjabi Muslims’ decisive shift in favour of the Pakistan movement. The competing political campaigns, religious polarization and intermittent spells of violence that it triggered has attracted the attention of historians interested in the development of communitarian mass politics and partition. However, the dispute also played out in the colonial courts and became the site on which some of the knottiest questions of colonial jurisprudence were debated. The present essay looks at this ignored aspect of the Shahidganj conflict. Could the mosque, like a Hindu deity, be designated a juristic person? What laws would apply in an inter-religious dispute of this nature? And whether in such matters, the state law enjoyed pre-eminence over religious laws. Despite the unanimity over the building’s antecedents as a mosque, the courts – all the way from the Sikh tribunal, to the High Court to the Privy Council – ruled in favour of the Sikhs. The essay seeks to understand how these competing claims were adjudicated and what were the imperatives of the colonial government that resulted in such a judicial outcome. It then proceeds to examine the Ram Janmabhoomi-Babri Masjid case in order to understand the continuities as well as departures in the exigencies of the post-colonial state, and the resolutions it offered thereof in such disputes.

KEYWORDS:

• Waqf
• deity
• religious law
• adverse possession
• Shahidganj mosque
• Babri Masjid

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Khurshid and Malik, “Shahidganj Mosque Issue and the Muslim Response.”

2. Gilmartin, “The Shahidganj Mosque Incident.”

3. Haroon, “Custodianship of Shahidganj in Colonial Lahore.”

4. Mukul, “Lessons for Ayodhya from Lahore Gurudwara”; Chhibber, “1940 Verdict in Lahore Gurdwara Case”; and Sachar, ‘The Impending Ayodhya Verdict.”

5. Masjid Shahidganj Mosque vs Shiromani Gurdwara Parbandhak (1940) 42 BOMLR 1100 para 6.

6. Anjuman-i-Islamia had stopped pursuing the case after the defeat in the Tribunal.

7. Mosque Known as Masjid Shahidganj v. Shromani Gurdwara Prabandhak Committee (Lahore) 1938 AIR (Lah) 369, para 4.

8. Ibid., para 136.

9. 1938 AIR (Lah) para 11. Ritu Birla has shown how in the run up to the passage of the Hindu Endowment Act of 1890, a series of judgments established the deity as a legal subject capable of holding property, filing suits, and being sued. This reflected not necessarily the precise ritual convention but indeed the ‘transformation of the Hindu endowment into a form of contractual private property’. Birla, Stages of Capital, 80–86.

10. 1938 AIR (Lah).

11. Ibid., para 12.

12. Ibid., para 27.

13. Ibid., para 13.

14. Ibid.

15. Ibid.

16. Ibid., para 137.

17. Ibid., para 106.

18. Ibid., para 99.

19. Ibid., para 12.

20. Among others, the judge referred to Muhammad Ahmad v. Muhammad Fazul AIR (1917) Lah 160, Sarat Chandra v. Nerode Chandra, AIR 1935 Calcutta 405 and Hukum Chand v. Maharaj Bahadur Singh AIR (1933) PC 193. In Muhammad Ahmad v. Muhammad Fazul, the dispute was regarding a mosque in which the defendants were residing with their families. The plaintiffs challenged the defendants right to reside within the mosque premises and sought perpetual injunction restraining the defendants from living there. The lower court dismissed the suit on the ground that the defendants continuous staying within the premises for more than 6 years was protected by limitation. The division bench of the Punjab chief Court however overruled the lower court arguing that the occupation by the defendants of the mosque premises for the purpose of residence was an ‘act of desecration’ of a place of worship which amounted to a ‘continuing wrong’. And going by section 28 of the Limitation Act, ‘a fresh period of Limitation’ began to run in favour of the plaintiffs ‘at every moment of the time” during which the defendants occupation of the mosque premises continued. The judges clarified that the occupation of the premises was an actionable wrong which could be objected to by any person who had the right to use the mosque as a place of worship. Ibid., para 110.

21. Ibid., para 111.

22. Ibid., para 113.

23. Masjid Shahid Ganj vs Shiromani Gurdwara Parbandhak (1940) 42 BOMLR 1100, para 14.

24. J. Din Mohammed, 1938, AIR (Lah) 369, para 69.

25. 42 BOMLR 1100, para 9.

26. Ibid., para 9.

27. Ibid., para 10.

28. Ibid., para 3.

29. Stephens, “The Politics of Muslim Rage.”

30. In 1887, a five-judge bench refused to penalize Imam Ali and his brother for slaughtering a cow, and thus hurting the religious feeling of the Hindus under section s. 295 of IPC. The judges ruled that the cow was not a religious object whose protection s. 295 afforded. It went on to conclude that cow worship was not an essential part of Hindu religion. Groves, ‘Law, Religion and Public Order in Colonial India: Contextualising the 1887 Allahabad High Court Case on “Sacred” Cows’.

31. 1938 AIR (Lah) 369, para 13.

32. Masjid Manzilgah was the name popularly given to a complex of buildings on the banks of the Indus at Sukkur‘, Sindh. It consisted of a serai (inn) and a mosque believed to be built by the Governor of Sind during Akbar’s reign. The buildings were taken over by the British at the time of the conquest during the middle of the nineteenth century and used as a residence by its military and political officers. Since the year 1920, Muslims of Sukkur had been demanding the return of the buildings to the community which in the 1930s was taken up by the Sindh Muslim League. On the part of the British authorities and the provincial government, the reason for their reluctance in acceding to the demand was a powerful Hindu opposition that was against any concession to the Muslims of Sukkur. See Khuhro, “Masjid Manzilgah, 1939–40.”

33. Copland, “Managing Religion in British India.”

34. Ibid.

35. Social science reflections on Ayodhya judgment appear torn between broadly two approaches: one saw it as an instance of inter-faith mutuality and negotiated peace and the other, deplored the trumping of secularism and imposition of majoritarianism. For the first approach see Nandy, “The Judges Have Been Injudicious Enough to Create a Space”; Mani, “Where Angels Fear to Tread”. For the second, see Menon, “Ayodhya Judgment’; Gupta, “Dissecting the Ayodhya Judgment”; and Teltumbde, “Whither the faith of Indians.” Interestingly, even those who agreed with the settlement recognized that the judgment did not meet the high standards of modern jurisprudence. For instance, Lata Mani writes: ‘Was the judgment fair? If one thinks of history and law as the primary means of just recompense it was clearly not … If however one asks whether it may facilitate peace understood as negotiated compromise..things look more hopeful and less bleak’. Mani, “Where Angels Fear to Tread,” 12.