Bhojshala hearing: Hindu Front plea a title claim, argues Khurshid

Indore: Senior advocate Salman Khurshid, appearing for the Maulana Kamaluddin Welfare Society, told the Indore bench of the Madhya Pradesh high court on Wednesday that the petition filed by Hindu Front for Justice in the Bhojshala temple-Kamal Maula mosque case amounts to a title claim — regardless of how it is worded."Even if the word ‘title' is avoided through careful drafting, the substance of the claim remains one of ownership," Khurshid submitted before the bench of Justice Vijay Kumar Shukla and Justice Alok Awasthi.The submission came after the court pointed out that petitioner's counsel, Vishnu Shankar Jain, had opened arguments by stating he was not seeking title. "His opening position was that this is not a claim for ownership," Justice Shukla noted.Khurshid argued if the petitioner is not claiming ownership or title, then on what basis he has approached this court. He added that the petitioner's challenge to the Archaeological Survey of India (ASI) order — which grants restricted access to both communities to the disputed site — implicitly rests on either a title claim or a claim rooted in faith and belief. "This is where the doctrine of ‘waqf by user' arises, and where my learned friend may argue: ‘once a temple, always a temple'. However, advancing such an argument implicitly amounts to claiming title," he said.Khurshid drew a distinction between the present petition and the Ayodhya suit and said in the Ram Temple case, Ram Lalla Virajman — the deity — was itself a petitioner, along with a shebait or manager looking after the temple.In the Bhojshala temple-Kamal Muala mosque case, no such arrangement exists. "There appears to be an assertion of a deity being linked to, or imagined in relation to, the very land on which the mosque stands today," he said.He argued that juristic personality arises from an express dedication to a pious purpose, embodied in the idol as a legal representative of that purpose. "The purpose itself may survive even in the absence or destruction of the idol, but land or structures do not acquire such personality merely due to religious association," he submitted.Khurshid challenged the evidentiary weight being placed on ASI findings and citing the Ayodhya verdict, argued that archaeology is inherently interpretive and involves multiple layers of inference. He noted that even in the Ayodhya case, the Supreme Court — while identifying an underlying non-Islamic structure — expressly found no conclusive evidence of demolition and cautioned that archaeological reports must be read with caveats."ASI findings in the present case cannot, by themselves, determine title," he submitted. Questions of ownership, he said, must be decided on settled legal principles and evidentiary standards applicable to civil trials — not on historical reconstruction.Khurshid said there was insufficient evidence to establish that the site once housed a structure that was destroyed and replaced. But he added: "Even if, in the worst-case scenario, such a proposition were to be accepted, the fundamental question would still persist — what legal principles govern ownership of this property today?"Faith, historical claims, and archaeological inferences, he argued, cannot displace settled legal principles governing title and religious character.Khurshid reiterated his reliance on the Places of Worship (Special Provisions) Act, 1991, stating that the statutory cut-off date of August 15, 1947, is decisive. The legislative intent, as recognised in the Ayodhya verdict, was to draw a line of closure over historical disputes and preserve the religious character of places of worship as they stood at the time when the country attained independence.He acknowledged the statutory exception for ASI-protected monuments under Section 4, but argued that the pending challenge to the 1991 Act before the Supreme Court in Ashwini Kumar Upadhyay v. Union of India effectively keeps the matter in abeyance — limiting the scope for judicial intervention at this stage.