Babri to Waqf: Eroding Equality Before Law - Senior Advocate MR Shamshad

In this Nous Podcast, we are joined by Supreme Court senior advocate M.R. Shamshad. The 2019 Supreme Court verdict in the Babri Masjid case is often discussed as the closure of a long-standing dispute. This episode looks at the judgment more closely, examining how the Court reasoned its decision, the role evidence played, and the legal assumptions that shaped the outcome. The conversation then traces a wider legal trajectory: the intent and subsequent weakening of the Places of Worship Act, 1991; debates around religious property and the Waqf framework; and the growing reliance on institutions like the Archaeological Survey of India in faith-related disputes. Together, these developments raise larger questions about legal consistency, institutional accountability, and equality before law. Rather than focusing on intent or motive, this discussion examines legal structures, statutory interpretation, and the long-term implications of selective legal reasoning, especially in how these processes affect religious minorities and access to constitutional protections in contemporary India.

The Babri Precedent: A Shift in Legal Logic

Shamshad’s journey into these heavy constitutional battles began with a personal memory: finishing his 10th grade in Madhubani, Bihar, the very year the Babri Masjid was demolished in 1992. Years later, as a lawyer in the Supreme Court, he would find himself deep in the case files, uncovering what he describes as a "shocking" evolution of a manufactured dispute.

He traces the modern legal conflict not to ancient history, but to the night of December 23, 1949, when idols were surreptitiously placed inside the mosque. "Overnight, a live mosque became a disputed structure," Shamshad noted. He highlighted a critical turning point in 1989, when a new suit was filed on behalf of the deity itself (Lord Ram Lalla Virajman), claiming the land is the deity. This fundamentally shifted the legal ground, placing the previous suits—filed by the Nirmohi Akhara and the Sunni Waqf Board—at a severe disadvantage.

The Crisis of Accountability

One of the most potent arguments raised during the discussion was the total collapse of accountability within state institutions. Shamshad pointed out that despite assurances given to the Supreme Court in 1992 by the State of UP that the mosque would be protected, it was demolished.

"The highest institution of the country was told nothing would happen... yet the mosque was demolished. And the contempt case regarding that assurance was never decided," he reflected.

This lack of accountability, he argues, has become systemic. Whether it is the police failing to register FIRs equally, or bureaucrats making adverse notings without consequence, the system has insulated itself from answerability.

"The system is working," Shamshad remarked ironically, "but it works selectively. Where it wants to act, it acts instantly. Where it doesn't, it stalls."

The Role of the ASI and the Places of Worship Act

The conversation also turned to the Archaeological Survey of India (ASI). Shamshad critiqued the agency's involvement in sensitive religious disputes, suggesting that its reports often align with a specific narrative required by the state, lacking necessary neutrality. He cited the discrepancy where ASI rules mandate preserving the "religious character" of a monument, yet administrative rules—like sunset-to-sunrise entry restrictions—effectively ban Fajr and Isha prayers in protected mosques, destroying their living character.

This selective approach threatens the spirit of the Places of Worship Act, 1991. The Act was intended to freeze the religious character of all places of worship as they stood on August 15, 1947. Shamshad argued that the exception made for Babri Masjid should have remained just that—an exception. However, current legal challenges in places like Gyanvapi and Sambhal suggest an attempt to normalize the "Babri model," eroding the Act's protection and opening the floodgates for endless litigation on historical grounds.

The Waqf Act: Shifting the Burden

Addressing the proposed amendments to the Waqf Act, Shamshad warned of a dangerous shift: the burden of proof is being moved from the state to the individual. Historically, "Waqf by user"—where a property is recognized as Waqf due to its long-standing use—has been a legally accepted concept. The new proposals aim to remove this, demanding strict documentation that may not exist for centuries-old properties.

"The intention seems to be to dispute every mosque and madrasa," Shamshad observed. By making the process of registration and verification overly bureaucratic and dependent on local administration (like Collectors), the state is effectively disempowering the community. It mirrors the logic of the NRC or the Foreigners Tribunals in Assam: create a complex bureaucratic maze where the citizen must prove their existence or property rights against a hostile system.

The Way Forward: Legal Literacy and Documentation

Despite the grim diagnosis, Shamshad’s message to the community was not one of despair, but of pragmatic resilience. He urged Muslims and marginalized groups to pivot toward "constitutional literacy."

"The Constitution is the only book that guarantees your freedom," he asserted. He advised the community to prioritize two things:

1. Understand the System: Move beyond emotional responses and engage with the legal and constitutional framework of the country.
2. Documentation: In an era where the onus is shifted to the citizen, maintaining impeccable records—of identity, property, and finances—is an act of survival.

Conclusion

The podcast underscored a critical reality: while laws like the CAA, Waqf amendments, or policies on Bulldozer Justice may appear technically distinct, they share a common DNA—the erosion of the constitutional guarantee of equality. As MR Shamshad concluded, unless the institutions, courts, and politicians address this selective application of the law, the "constitutional objectives" of India will remain unfulfilled.