How would the Supreme Court of India have decided on the status of Istanbul’s Hagia Sophia, if it had the chance? Given that the court set a precedent with the Babri Masjid-Ram Janmabhoomi case last year.
The unfortunate decision of Turkey’s top administrative court to cancel Hagia Sophia’s museum status and reconvert it into a mosque has rightly been criticised all over the world. But Right-nationalist governments, such as President Recep Tayyip Erdogan’s, which fail to deliver and solve current problems, rely on the past and in the name of correcting historical wrongs, take pride in divisive acts.
At the outset, the Indian Supreme Court would have noted that Hagia Sophia is neither sacred for Orthodox Christians nor Muslims. It has nothing to do either with Jesus Christ or Prophet Muhammad, though the latter had predicted the Muslim conquest of Constantinople. It was constructed by one sovereign as a church and subsequently converted into a mosque by another sovereign.
Church to mosque to museum
The Eastern Orthodox Church, the sect to which Hagia Sophia originally belonged, has just 0.001 per cent share in the population of Turkey today. This is due to the Treaty of Lausanne signed in 1923, which ended Ottoman rule and led to an exchange of population between empires. It resulted in almost one million non-Muslims going to Greece, Armenia, and Muslims from these states settling in Turkey.
Hagia Sophia was constructed by Emperor Justinian I between 532 and 537 AD and remained an Orthodox Christian church for almost 900 years. Although, in the middle, it was converted into a Roman Catholic Cathedral during the fourth Crusade of 1204, but it was converted into an Eastern Orthodox Church again when the Byzantine empire made a comeback in 1261. After the fall of Constantinople in 1543, Ottoman Sultan Mehmat II converted it into a mosque by purchasing it and creating a waqf. The petitioners in the current case had alleged that the building belongs to the Fatih Sultan Mehmat Han Foundation of Mehmat II.
Hagia Sophia remained a mosque until 1931 when it was closed. It was reopened as a museum in 1934 in a decision by the Mustafa Kemal Ataturk cabinet. It was ‘secularised’ and opened to all with an entry fee.
Now, Turkey’s Council of State has ruled that this conversion to a museum was illegal. I oppose this decision and consider Mehmat II’s decision of 1453 to convert it into a mosque as ethically wrong too.
If the Indian Supreme Court was deciding on the status of Hagia Sophia, it would have cited its own historic judgment on the Babri Masjid-Ram Janmabhoomi dispute in Ayodhya to observe that the Eastern Orthodox Church could not conclusively prove its ‘uninterrupted possession’ of the Hagia Sophia, because, from 1204 to 1261, it was used as Roman Catholic Cathedral. On the other hand, Hagia Sophia remained a mosque from 1453 to 1931, and Muslim prayers were continuously offered there. Moreover, the court may have attached a lot of importance to the fact that Muslims never gave up their ‘belief’ that Hagia Sophia was a mosque and prayed there. Hindu beliefs were similarly given lot of weightage in the Babri judgment.
Unlike the Babri case, where the Muslim petitioners had failed to produce any document indicating dedication of the mosque by Babur as the foundation of a legal title prior to 1857, the decree of Mehmat II is still available, creating an endowment and dedicating Hagia Sophia as a mosque. Once a property is dedicated to God, the Indian law is clear that such property becomes inalienable. Section 3 of the Waqf Act, 1995, like earlier statutes, recognises waqf by user even in the absence of a specific deed of dedication. The Supreme Court, too, had upheld waqf by user doctrine in the Faqir Muhammad Shah v. Qazi Fasihuddin Ansari case (AIR1956 SC 713). In Hagia Sophia, Muslims did offer prayers for 478 years and, therefore, waqf by user stands established.
Moreover, the settled law on adverse possession also goes in favour of a mosque. Conceding Hagia Sophia was a Christian property till 1453, its actual, peaceful, open, and continuous possession and use as mosque negate the Christian claim because Hagia Sophia became a Muslim property by adverse possession.
In the Babri case, since the Muslim parties could not give any evidence of such a possession between 1528 (when the Masjid was constructed) and 1860, and Hindus have been obstructing prayers and were in possession of outer courtyard after 1860, peaceful possession by Muslims could not be proved and therefore they lost the case.
The Supreme Court of India would have also taken note of constitutional changes in Turkey that started with the Ottoman Constitution of 1876. In 1921, the first constitution of the Republic of Turkey was adopted. Article 70 of the constitution guaranteed not only freedom of conscience but also right to property. Article 74 explicitly laid down that no one shall be dispossessed of their property except in public interest and on payment of actual value of the expropriated property. (Article 35 of the current Turkish constitution also guarantees right to property.)
Article 75 guarantees the right to religious observances. In 1928, Article 2, which had declared Islam as the state religion, was deleted and Turkey became a secular state. In view of these provisions of the constitution, conversion of Hagia Sophia into a museum was illegal because it was not only a negation of secularism but also violated freedom of conscience and right to property since the actual value of the property was never paid. Accordingly, the 1931 and 1934 orders would be set aside by the Indian Supreme Court as well.
Conversely, the Supreme Court could have rejected the argument of Hagia Sophia not being a mosque because Islam does not permit the conversion of other faiths’ places of worship into mosques and Sultan Mehmat’s action might have been legally right, but was theologically and morally wrong. Again, relying on its Babri judgment’s paragraph 77, the court may have observed that it cannot enter into theological issues. The belief and faith of the worshipper in offering namaz at a place, which is for the worshiper a mosque, cannot be challenged.
The Supreme Court might also have refused to examine the legality of Mehmat II’s action. The court in paragraph 652 of the Babri judgment had clearly observed that “this court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer”.
In paragraph 649, it had observed that “the Mughal conquest of the territories was a supra-national act between two sovereigns to which, absent the recognition by the new sovereign of pre-existing rights, any claim to disputed property could not have been enforced by virtue of change of sovereignty”. Under international law, a successor state inherits all the properties of the predecessor state. Even Article 11 of the Vienna Convention on Succession of State in respect of State Properties, Archives & Debts, 1983 acknowledges this well-established principle of property passing to a successor state without compensation. So, when Mehmat II, as the new sovereign, did not recognise Hagia Sophia as an Orthodox Church, he was well within his rights to do so.
Since about 20 per cent of UNESCO’s world heritage sites have religious or spiritual connections, including the Vatican City, the court could have ordered that the Byzantine paintings or mosaics of the Hagia Sophia not be damaged or destroyed. The entry of the building should remain open to people of all faiths.
A mosque again
Secularism is an essential feature of modern Turkey’s constitution. A Places of Worship Law should ideally freeze the religious status of all places of worship on the day Turkey became a republic — 29 October 1923 (like 15 August 1947 in India). Keeping in mind that an ‘egregious ethical wrong’ was committed in 1543, the Supreme Court, if it was deciding on Hagia Sophia, may have invoked its power to do complete justice under Article 142 of Indian Constitution and ordered that the Eastern Orthodox Church be given 25 acres of land as reparation to construct a magnificent church within the city of Istanbul. It had similarly given five acres of land to Muslims for the construction of a mosque as repatriation for the illegal act of surreptitiously installing idols in the mosque in 1949 and illegally demolishing it in 1992.
The Supreme Court would have probably concluded that since Hagia Sophia was a mosque not only till 1923, when Turkey became independent, but continued to be used as one till 1931, it should be handed back to the Mehmat Foundation.
Faizan Mustafa is the Vice-Chancellor of NALSAR University of Law, Hyderabad. Views are personal.