Recently, the contemporary issues in the international vicinity have not appreciated the principles of territorial occupation and establishment of titles. However, there exists recognition of these principles among all the states. Notably for establishment of titles there is a prerequisite of sovereign manifestation and continuous possession over the territory. However, for domestic territorial disputes the principles may vary as in accordance with the municipal law. Specifically, for domestic territorial disputes sovereign manifestation is not required to be considered as the determining factor for the settlement of dispute. However, the fact of continuous possession has consistently been a relevant factor to determine historical or mythical allegiance. The article evaluates the Supreme Court’s verdict on the touchstone of international law jurisprudence with respect to territorial disputes.
The Babri Masjid Dispute
The dispute revolves around the plot of land in the city of Ayodhya in Uttar Pradesh, India. The site located the Masjid prior to its demolition in the year 1992 and the same site is also revered by the Hindus as the birthplace of Lord Rama. Specifically, the dispute was whether a previous Hindu temple was demolished or modified to create the mosque.[i] After a series of events and litigation, in September, 2010, the Allahabad High Court ruled that the disputed land in Ayodhya will be divided into three parts. The 2.77 acres land will be divided between Hindus, Muslims and the Nirmohi Akhara.[ii]However, later the Lucknow Bench of the High Court stayed the September, 2010 Judgement in the year 2011.[iii] After a batch of appeals, on November 9th, 2019, the Supreme Court of India ruled that the temple may be constructed on the disputed land and an alternative plot of five acres should be allotted by the Central Government for the construction of Mosque.
Babri Masjid - Ayodhya Verdict
The case of M Siddiq (D) Thr Lrs. v.Mahant Suresh Das(M Siddiq) famously recognized as the Babri Masjid – Ayodhya verdict has not explicitly affirmed or applied international territorial principles. However, a careful perusal of the decision shows that the Apex Court of India has impliedly reaffirmed International principles on territorial acquisition. The court did not apply the theory of continuous possession over the land and therefore despite the continuous possession for over 492 years until the year 1992 by the Muslim population, the court has determined the existence of title on the basis of historical ties. The Court in its decision has extensively relied on findings of Archaeological Survey of India (ASI) and various religious texts to determine the territorial ties.
Notable observations by the Apex Court
While evaluating the question of title, the court had to determine an issue whether title can rest on the basis of the findings of ASI. While determining the question of title over the land, the Court extensively relied on the report of the Archaelogical survey of India. The ASI report inferred the existence of a pranalato drain out water after the abhishekaof the deity which is not present in the shrine now. The brick shrine which has been found as a result of the excavation is stated to be similar to the findings of the excavation carried out by ASI at Sravasti and at Rewa. On a comparative analysis, ASI has inferred that the circular shrine can be dated to circa tenth century A.D.
Reliance on religious texts was also made by the Supreme Court. The Court observed that;Valmiki Ramayan narrates that Lord Ram was born in Ayodhya. Description of Ayodhya has been made in Vedas, Upanishads, in codes (Samhitas) and in eighteen Puranas, in Smritis; and in recognized works of Sanskrit literature of Bharat.[iv]In all these, Ayodhya has been accepted as the birthplace of Lord Ram. The Court further acknowledged the difficulty of scrutinising documentary evidence over five hundred years of history. The Court also observed that no clear picture emerges from various history books. In fact, the contemporary record did not answer the issues, one or the other way, with certainty but some record, authored after about 200 years i.e., 18th Century, states about existence of temple, its demolition and the construction of the disputed building (Babri Masjid), while some well-known historians dispute it and some history books are silent.[v] These observations by the Supreme Court of India clearly show how the court has appreciated the historical allegiance of the disputed land with Ram Lalla(Lord Ram). Perusal of this judgement through an International law spectacle unravels few interesting facets of International and Municipal Law.
The Jurisprudence laid down by International Court of Justice (ICJ) and other bodies in territorial disputes
International territorial claims can be based on culture[vi]and history[vii]and therefore territorial ties may be determined on basis of historical evidence which shows that the territory in question is an inviolable part of the national patrimony.[viii] Historical claims create an underlying entitlement to territory[ix]as they often relate to cultural claims, because the greater the cultural importance of the territory, the stronger the historical claim to it. Historical claims are strong when the territory in question is the claimant group’s homeland because that “includes both priority and duration and expresses the ultimate case of manland symbiosis.[x] It can be based on events that have actually taken place or on myths that were purposely constructed.[xi] The M Siddiq verdict is based substantially based on facets of historical ties, culture, and religious patrimony. These facets have been recognized by the International adjudicatory bodies in several decisions.
In the Meerauge arbitration award,[xii] it was observed that, Possession immemorial is that which has lasted for such a long time that it is impossible to provide evidence of a different situation and of which anybody recalls having heard talk. Pertinently the parties in the Babri Masjid Dispute had also claimed that the disputed land is the birth place of Lord Ram since time immemorial according to the faith and belief of Hindus.[xiii] The Supreme Court of India conclusively noted that the sequence of the historical events clearly indicate that faith and belief of Hindus is that the birth place of Lord Ram was in the structure of the Mosque which was constructed at the janamasthan(Lord Ram’s birthplace).[xiv]
In Fisheries Case,[xv] the ICJ recognized historical as the notion of special feature: The notion of historical consolidation of title focuses on the special interest a territory may have for a given State, and on the general tolerance or recognition by other States of this claim.The special characteristics of the territory need to be taken into account, as does the particular structure of the sovereignty in question.[xvi] Interests and relations themselves have the effect of attaching a territory and therefore allowing historic consolidation of title. A historic homeland whether within an enclave or simply disputed territory is recognized in international jurisprudence.[xvii]
The Supreme Court verdict in the M Siddiq case is in the nature of domestic practice which appreciates the determination of titles on basis of historical allegiance. The Court observed that the Muslims have failed to show exclusive and continuous possession over the disputed land, whereas the Hindu group has displayed exclusive and continuous possession over the disputed land. The principles of territorial acquisition in international have been developed through municipal practice which ultimately culminated into customary state practices. The judgement in the natural of municipal practice is a revival for the International law principles on territorial acquisition especially when these principles seemed to have lost their significance and relevance.
***The views expressed herein do not necessarily represent the opinions of JTMS or Yonsei Institute for North Korean Studies. Sameer Gupta is a student at the National University of Study and Research in Law, Ranchi and is pursuing a B.A. LLB. (Hons.)
[i]All you need to know about the Ayodhya dispute, https://www.indiatoday.in/who-is-what-is/story/all-you-need-to-know-about-the-ayodhya-dispute-278274-2015-12-21
[iv]M Siddiq v. Mahant Suresh Das & Ors., Civil Appeal 10866-10867 of 2010, https://www.sci.gov.in/pdf/JUD_2.pdf.
[vi]M. Macchi and others, Indigenous and Traditional Peoples and Climate Change, IUCN Issues PAPER (March 2008).
[vii]Brian Taylor Sumner, Territorial disputes at the International Court of Justice, 53 Duke Law Journal 1779, available at, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1227&context=dlj.
[viii]Stein Tønnesson, Why are the Disputes in the South China Sea So Intractable? A Historical Approach, 30 Asian Journal of Social Science 570-601 (2002), available at, https://www.researchgate.net/publication/249602131_Why_are_the_Disputes_in_the_South_China_Sea_So_Intractable_A_Historical_Approach.
[x]Donald L. Horowitz, Ethnic Groups In Conflict 219–24 (University of California Press, 1985), available at, https://www.ucpress.edu/book/9780520227064/ethnic-groups-in-conflict-updated-edition-with-a-new-preface.
[xi]Guntram H. Herb, National Identity and Territory, in Nested Identities: Nationalism, Territory, And Scale 570-601(Guntram H. Herb & David H. Kaplan eds., 1999), available at, https://trove.nla.gov.au/work/8572995?q&versionId=9906423.
[xii]Austria v. Hungary, Decision of the arbitral tribunal established to settle the dispute concerning the course of the boundary between Austria and Hungary near the lake called the “Meerauge”, 1902 VOLUME XXVIII 379-396, at 382, available at, https://legal.un.org/riaa/cases/vol_XXVIII/379-396.pdf.
[xv]Fisheries case (United Kingdom v. Norway)(Judgment), 1951 I.C. J. 116 at 138, available at https://www.icj-cij.org/files/case-related/5/005-19511218-JUD-01-00-EN.pdf.
[xvi]Western Sahara (Advisory Opinion), 1975 I.C.J. 12, ¶ 95, available at, https://www.icj-cij.org/files/case-related/61/061-19751016-ADV-01-00-EN.pdf.
[xvii]International Crisis Group (ICG), Central Asia: Border Disputes and Conflict Potential (2002), available at, https://www.files.ethz.ch/isn/28346/033_central_asia_border_disputes.pdf.