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Islamic Sharia Laws ( 28 Oct 2010, NewAgeIslam.Com)

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The Shariah Position on the Babri Masjid and its Ownership

By Maulana Abdul Hameed Nomani

(Translated from Urdu by Yoginder Sikand for NewAgeIslam.com)

 

The recent verdict of the Lucknow bench of the Allahabad High Court on the Babri Masjid-Ram Janambhoomi controversy has taken everyone by surprise. If the verdict acquires the status of a judicial precedent, it is bound to lead to a whole range of massive problems in the future. It is for the first time that the courts have privileged ‘religious belief’ (astha) over facts and clear evidence. This ‘belief’ is one that itself has no basis at all in the Hindu religious texts. The fact of the matter is that rumours about the Babri Masjid allegedly standing on the precise spot of a temple built on the birthplace of Ram were invented and circulated by some communal elements much after the mosque was constructed. These rumours have nothing to do with the ‘religious beliefs’ and faith of the Hindus. Half a century after the construction of the Babri Masjid, the biggest devotee of Ram, Tulsi Das, who lived in Ayodhya, wrote numerous books, including the Ramcharitmanas, but he made no reference at all in any of his writings to any temple standing on the spot occupied by the mosque or to the claim that the spot marked the birthplace of Ram. Nor did he claim that a temple had been destroyed to build the mosque. I have studied these writings by Tulsi Das myself, and so can vouch for this with confidence.

 

Some days ago, I had the opportunity to participate in discussions on television with a group of Hindu sadhus. I asked them to provide evidence from the Hindu scriptures about the ‘belief’ that they kept harping on—that the spot occupied by the Babri Masjid was the precise birthplace of Ram and was once occupied by a Hindu temple that was destroyed to make the mosque. Was there no distinction between rumour and religious belief, I asked them? These sadhus could not answer my questions. In another television programme there were more than a dozen sadhus and sants from the Hindu Mahasabha and other organizations. I told them that they knew nothing about the shariah. I asked them to prove their ‘religious ‘belief’ about the Babri mosque allegedly standing on the spot of Ram’s birth from their own scriptures. Viewers of the programme saw for themselves that these one dozen selected sadhus and sants were unable to prove their claim. They could not even define the term ‘religious belief’.

 

A religious belief is not something floating about in the air. To be considered a religious belief it must be specifically and clearly mentioned in a religious text. The claim that Hindus believe that the spot occupied by the Babri Masjid is the precise birthplace of Ram does not find any such textual reference or support in the Hindu scriptures. It may be that many Hindus believe that Ram was a god—that is their religious belief—but whether Ram was actually born on the exact spot once occupied by the mosque or whether a temple once stood in its place and was later torn down and replaced by a mosque is definitely not a question of religious faith at all, but of history. How can one expect reasonableness from a society that does not know the distinction between history and religious belief? It is certain that these extraneous considerations have impacted on the court’s verdict, prompting legal luminaries to openly and very explicitly insist that it poses ominous consequences for justice.

 

A crucial question is being deliberately sidelined in ongoing discussions about the Babri Masjid-Ram Janambhoomi controversy, and this concerns the teachings of the Islamic shariah that relate to the issue. It is clear that these teachings are being ignored or wrongly interpreted by some people who falsely project themselves as authorities on the subject. Some such people have suggested that the Muslims give away even the small portion of the land previously occupied by the Babri Masjid that the court has granted them. Obviously, they are ignorant of the teachings of the shariah in this regard.

 

They should know that, according to the Islamic shariah, no organisation or individual has the right to give or transfer the ownership to somebody of even a part of a property that is a waqf endowment, especially a mosque. According to the rules of Muslim jurisprudence, as soon as a piece of land is made into a waqf for the purpose of prayer and worship, its ownership is transferred from human beings to God, and it then becomes a mosque in perpetuity. Even if the structure of the mosque falls down, and even if all its walls disappear, even then no organisation or individual has the right to transfer its ownership or control to someone else or to shift the mosque or to change its use and function, not even into a madrasa for religious studies. Obviously, from this it follows that to convert a mosque for a purpose totally contradictory to that of a mosque, for instance for promoting idolatry and polytheism, is a grave crime, a heinous sin.

 

This is precisely the situation with regard to the Babri Masjid, where some people, based on their numerical and political power, succeeded in capturing the mosque. In this case, Muslims were unable to resist this aggression, and so they cannot be blamed for it. But if a Muslim individual or organisation willingly accedes to this forcible capture of the mosque, it is, according to the shariah, a serious matter. Such a stance would only further embolden those who will certainly invoke ‘religious belief’ to unleash an endless serious of such heinous assaults in the future. It will break down the limits and laws that the Islamic shariah has laid down to preserve and protect the sanctity of mosques. In such an event, devious characters will resort to force to misuse and make a complete mockery of the law, using this one instance to justify future such aggression in a huge number of cases.

 

In order to protect the sanctity of mosques and the distinctive attributes of monotheism, the shariah has arranged that as soon as a place becomes a mosque its ownership is wholly transferred from out of the hands of human beings. Once a place becomes a mosque, it remains so forever, even though it might become dilapidated or is no longer prayed in or even if no Muslims live any longer in its vicinity. Even in such conditions, it cannot cease to be a mosque, and no one can change its status.

 

This is not a new position on the matter devised in the wake of the Babri Masjid controversy. Rather, this has been the clear and explicit position of Muslim jurisprudence (fiqh) since the very beginning, explicitly mentioned in numerous reliable and respected books of fiqh. For instance, in the well-known fiqh compendium Shami it is mentioned that if people no longer live in the vicinity of a mosque and, therefore, this mosque is no longer in use, even then the mosque remains a mosque, and will remain so till the Day of Judgment. Fatwas have been given based on this principle, which argument has the backing of the leading figures of the established schools of Muslim jurisprudence, including the Imams Abu Hanifa, Mailk, Shafi and Ahmad Bin Hanbal. In other words, it can be said that there is a consensus or ijma among the Muslims on the matter. Accordingly, the noted Muslim jurist Allama Hafiz Ibn Hamam writes in the Fateh al-Qadeer that it is a duty binding on Muslims to protect, as far as they possibly can, even an unused and dilapidated mosque. This point is mentioned in numerous other important books of Muslim jurisprudence, such as Al-Bahr al-Raiq, Al-Durr ul-Mukhtar ma Radd-il Muhtar, Fatawa Alamgiri, etc.  

 

A mosque is not owned by an individual or an organisation, and that is why it cannot be transferred to anyone else’s control or ownership. Nor can it be bought or sold. In short, according to Muslim jurisprudence, once a piece of land becomes a mosque this status cannot be changed in future. It always remains a mosque Having explained this, it needs to be noted that the concern of the Muslims with regard to the Babri Masjid stems from their desire to protect their place of worship in accordance with the rules of the shariah, and not from any identification with or support for Babar or from association with a particular bit of land. That is why to seek to counterpoise Ram against Babar is a mischievous conspiracy to scuttle the real issues that are central in the ongoing controversy.

 

It must be pointed out that the early classical Hindu texts contain no reference to, or even a concept of, a Ram temple. It is also the case that ardent backers of this project, be they sadhus or Justice Sharma of the Lucknow Bench of the Allahabad High Court, appear to be quite ignorant of the teachings of Islam and the rules of Islamic jurisprudence or else they would not have raised the question of the ownership of the Babri Masjid. To bring in the name of Babar or Mir Baqi with regard to its ownership betrays ignorance of the rules of the shariah. To repeat a point I made earlier, an individual or an organisation can be the caretaker of a mosque but not its owner. A caretaker is not an owner, and nor can he make someone else the owner of a property.   

 

Till date, no compelling evidence has been provided to prove that the Babri Masjid was built after destroying a temple. It is a shariah duty binding on Muslim rulers to build mosques for their Muslim subjects to pray in. Accordingly, Babar arranged for the Babri Masjid to be built in Ayodhya under the supervision of Mir Baqi. According to the shariah, a mosque cannot be built on land owned by someone else. That is why the land where the Babri Masjid once stood must either have been bought from someone or else built on empty land or land that had no legal private owner and that, therefore, was technically owned by the state. In either case, Babar’s decision cannot be said to be un-Islamic or erroneous. The mosque stood on that spot for centuries, and this itself is proof as to who its rightful owner is. For centuries Islamic worship was offered therein, and that itself is sufficient evidence of it having been a mosque. To back this claim, there is no need for additional evidence, such as a written will, the names of those who had given the land in waqf for the mosque, and so on. Rather, it is for the opposite party to prove that the mosque was not built on state land and that, instead, the land actually belonged to someone else that was, as they allege, forcibly taken by either Mir Baqi or Babar in order to build the mosque.

 

The texts of Islamic law provide in great detail the rules for constructing a mosque, and these rule out forcibly and wrongfully capturing the lands of others for this purpose. The existence of the Babri Masjid is itself proof that it was not built illegally. That some people later started making false claims about it does not mean that it no longer enjoys the status as a mosque or that it was constructed in violation of Islamic principles. Such an allegation is an assault on the truth and a wholly wrong and unacceptable misinterpretation of Islamic principles and teachings.

 

Muslims have always been very sincere and sensitive with regard to the sanctity of mosques. There are clear rules and regulations that need to be followed with regard to constructing mosques, there being no such corresponding rules for building Hindu temples or monasteries. It is crucial to know the shariah position in this regard.

 

It is clear that the legal battle over the ownership of the Babri Masjid will continue, but in this the commandments of the shariah cannot be ignored. In this regard, it is crucial that we remain aware of and oppose wrong interpretations of the relevant shariah rulings, for which those responsible for such errors will have to answer before God. 

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Abdul Hamid Nomani is secretary of the Jamiat ul-Ulema-e Hind, and in-charge of its Department of Religious Affairs

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Yoginder Sikand works with the Centre for the Study of Social Exclusion at the National Law School, Bangalore.

 

URL: http://www.newageislam.com/islamic-sharia-laws/the-shariah-position-on-the-babri-masjid-and-its-ownership/d/3600


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