Supreme Court of India
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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.


Also read: How Erdogan’s Hagia Sophia mosque move erases Ataturk’s stamp on Turkey


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.


Also read: Turkish President Erdogan reconverts 16th century Hagia Sophia cathedral into a mosque


Peaceful possession’

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.


Also read: SC Ayodhya verdict shows Muslims can be given public space if it doesn’t adulterate Hindu one


Sovereign’s rule

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.


Also read: Two readings of Ayodhya verdict: legalising Hindutva or separating site from structure


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.

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38 COMMENTS

  1. The central issue is Turk himself is illegal Immigrant in Asia Minor. Like Babar was illegal Immigrant in India. They did not take permission from inhabitants of the land.

  2. I listened to Mustafa a number of time on TV panels. However, the current article is illogical. Please note that one of the Ministers of present Turkey regime claimed and produced documentary evidence that Mahmmod-II, the Ottoman ruler after victory over Turkey purchased the church (disputed site) from the father of Church to establish a mosque. Thus, had the Hon’ble SC had opportunity to hear the matter, this point which finds no mention in your article must have been there in argument. A winner of medieval era is a winner and all men and material would pass on to the winner forcefully. Thus, purchase of a church is unimaginable, it was a forced capturing. This piece of evidence would also prove that it was a church before arrival of Ottoman. Thus, the verdict would go in favour of Church. It also raises a question can a Maulvi , Mulla or Kazi sell a mosque? No, never. How can father sold the church?. Your article is misleading and argument made is for the sake of argument. It carries no force.

  3. Keeping in mind that an ‘egregious ethical wrong’ was committed in 1543 – you mean 1453, right?

  4. Writer is good in writing fiction than writing facts.
    1. Muslims bought property – How he is a law expert from Nalsar in Hyderabad or religion makes him blind? There is no historical proof for this claim.
    2. For a period ownership was with Catholics, so orthodox cannot claim ownership, cleverly he forgets both are Christians
    3. History of Hagia Sofia starts 4th century, but writer ignores this
    4. Writer is do idiotic to say this church is not important because this is not related to Jesus, with same logic st Peter’s Basilica also not related to Jesus, do not important for Christian s.
    People who knows history knows the importance of Constantinople just like Rome, but for religious fanatics what history..

  5. “ThePrint” should fact check the veracity of articles. Hagia Sophia was not purchased from the Orthodox Christians. One of the first things that Mehmet the Sultan did when he conquered Istanbul was to pray at the Hagia Sophia thereby making it a site of Muslim worship. He also created a endowment for the maintenance and running of the mosque. If you want to have more thorough knowledge of the history of Hagia Sophia, read through the wikipedia article https://en.wikipedia.org/wiki/Hagia_Sophia. This new fabrication of Sultan Mehmet buying the Hagia Sophia has become so widespread that it is attaining a status of truth. This is is very similar to many of the fabrications that other religions have done (examples) St. Thomas Visited India, Rama was born in the site of the Babri Masjid etc. Historical scholars like Faizan Mustafa are expected to fact check their writings if they need to maintain their credibility.

  6. If anyone is missing hot jalebis this lockdown, here is a whole bagful. Consume carefully. Health hazard probable from the use of illicit substances.

    Wonderful logic, Dr. Mustafa. Although, after following you for so many years, one cannot expect anything lesser from a man of your calibre. And thanks ThePrint for bringing to us this unprecedented logical achievement.

  7. the claims circulating that Mehmed II bought Hagia Sophia from Patrick (Saint) Orthodox doubted, moreover there were no data on the existence of the patrick at the time because his position was empty, and from the documentation there were no strong archives to confirm the rumor. Put simply: the claim to purchase Hagia Sophia never happened.
    This entire writing is from the Islamist point of view basing upon a sale deed which has no truth in it…
    This is rubbish and totally against the Indian SC ruling cited.

  8. Indian constitution stands sherreded and all the institutions created by it has been negated including SC.india is running ad hoc by bigots from Nagpur.so why talk of SC whose presiding judge was assured lucrative posting and he got it.

  9. YhM The stories are well written by all the scholars, let me put this very simply – Orthodox Church – Russia – S – 400 and Mosque – Turkey – S – 400 = 1 – Instead of giving back the Church converted into mosque – 2 – Turkey was a friend converted into enemy of Russia 3 – Turkey will not give back S – 400 given by Russia it will be used against Russia – becos S – 400 is converted – thus is the strategy of Islam – why to refer India here – Shal-om n Grace a i YhM

  10. So, this too clever by half writer wants to say that the SC is flawed in handing over the Ram Janmabhoomi area to Hindus. I am sure he will show documents that Paigambar Mohammaed visited Ayodhya is some year – like China shows its Ming pottery shards on every land it tries to occupy – and claim that the mosque came before Lord Rama. Note he does not condemn the Turkish Government’s decision to convert a Church/ Museum into a mosque – like all Islamists do. They carry the garb of secularism as long as it suits their interest, then they turn rabid Islamists.

  11. if the SC of India were asked to decide on the Hagia Sophia case, they would keep asking questions, clarifications and issue adjournments for the next 70 years by which time Erdogan would be in Jannat. Always go by past record. It gives one a fair indication of things to follow.

  12. The structure was fathered and used as church for over 500 years before the Sultan of Ottoman empire PURCHASED it and established a Waft and used for Muslim prayers. Thus the parentage question is not existant. However the fact that it is such a marvelous structure needs to be permitted fr public tourism on select days of the week. Muslim prayer mosques do not house any idols and as such there should not be a problem in allowing the outer circle to be used as tourist purpose. In modern world secularism has to accommodate different aspects in a homogeneous way

  13. The author of this article has presented a twisted logic. The two cases are not comparable at all. In India, the issue was whether the disputed place is to be considered as a Mandir or a Mosque. The two contesting parties belonged to two religious communities. In Turkey is issue was whether Hagia Sophia be considered as a Mosque or a Museum. No one demanded that it be converted into a Church. Christian population in Turkey is just around 0.001% . How did the Turkish State Council, the highest court decide in favour of converting the site into a mosque? Who were the contesting parties? What were the arguments from both sides? No details are furnished by the learned author. In India, the Muslim litigants were afforded a fair opportunity to argue their case – in high court as well as in the SC. The SC has ordered to provide an alternative site for constructing a mosque. Has the Turkish court ordered for constructions of a museum?

  14. How deranged one can go?
    This guy is cleary an Islamist who is masquerading as rationalist
    He is using the Ram Janmabhoomi verdict to whitewash the Turkey’s Islamic regime’s decision to officially convert a Church into Mosque which was there even before his Prophet & religion was born on Earth
    Let me give him a short & simple justification – Ayodhya place was a Temple originally, Islamists converted it into Mosque & now declared a temple again
    Hagia Sophia was a Church originally, Islamists converted into Mosque & then secularised & now again re-converted to Mosque. It should have been declared a Church, as it was originally.
    But Justice in his ‘religion’ is only reserved for Muslims. I mean it’s so laughable that their ‘only true God’ considers if a person was Muslim or Non-Muslim, praying only to him or others(say idols) before offering heaven or hell regardless of the goodness or badness of the person. Such insecure & narsicissitic fellow can never be God😂

    • Please dont forget that the property was bought first and then converted, which is anyways legal. Please dont give it a different angle to it.

      • Hahaha, dawood could have requested you your property, what you will do, resist him. If he had control over the whole state
        Property brought, my foot.

  15. It’s interesting how the author uses one event in far Turkey to criticise SC’s decision in India. Why can’t people just move on? Why do people simply want to live in the past? God is wihin human body and no church, temple or mosque can replace the human body. In all matters related to church, temple or mosque, everybody is at fault. If they raise questions, it’s because of their own selfish reasons.

  16. Even when the issue is between Christians and Muslims, why let go of an opportunity to slap the Hindus in the face? Kudos to the Print to publish such a fact of the matter opinion

  17. Frustrated writer trying to release some of his frustration by writing this peace of garbage

    The print always do this

  18. Frustrated writer trying to release some of his frustration by writing this peace of garbage

  19. Whole world is going backwards to bigotry, intolerance, racism, majoritarianism again. First and second world war forgotten. It is collective death wish.

  20. It is about shame. Nothing but shame.
    .
    There are people, historically barbarians and dacoits – who’s will invade an occupy others – their land, their places of worships, molest their culture. One of the most barbaric people in history were the Turks from Central Asian wasteland. Not only these uncouth barbarians colonized India for 600 years – but Iran and Arabs as well.
    .
    It is the Turks, that came along with the Mongols that terminate the Golden Era of Arabs – together with Mongols, these mercenary barbarians killed the last Abbasid Caliph, burned Baghdad to ashes, killed all its inhabitants. Of course, like Nalanda, they destroyed their famous library – House Of Wisdom. They decay soon started with the Arabs – the people of the Book – naturally if the barbarians take control of the narrative – what would happen to the subjects.
    .
    Turks are NOT Native of the Indian subcontinent or Anatolia (Asia Minor) – they are aliens. PERIOD.
    .
    These cunning fellows adopted the religion of the Arabs – and soon become Caliphs themselves. Prophet Muhammad must be wondering in his grave – how come the worst people on the planet can claim this title. They strictly followed a policy of anti Arab Apartheid, yes – no Arabs we ever employed in the service of this illegal Ottoman Caliphate – administration or military.
    .
    Like they did in Indian Subcontinent – they massacred the ancient settled civilizations in Anatolia.
    .
    Timur, Gazni, Nadir Shah, Babar, Khilji, Tughlaq, Nawabs, Nizams were all Turks – aliens – not ethnic Indian people. India converts never really had any political power or enlightenment either during the 600 years of colonial rule of the Turks.
    .
    Any self-respecting and proud ethnic Indian or citizens of Turkified Anatolia – believing in the Arabic religion – should have the courage and morality to give back occupied places of worship – a symbol of loot and rape and a disgrace to their Prophet and his “religion-of-peace”.
    .
    Modern Turki people in occupied Anatolia should have returned Hagia Sophia to the Christians. Should return Ayodhaye, Mathura, Kashi back to Indian Pagans as well.
    .
    But dacoits being dacoits – what can be done. Shameless Neanderthals.

  21. Very few people are genuinely interested in the Supreme Court’s decision postfact , whatever the merits of the case , it is good riddance from the headlines..

  22. It’s a mischievous article. Coming from a scholar, it shows deep seated prejudice. Two cases can never be compared without personal biases thrown in. Hope the students of NALSAR are not being indoctrinated.

  23. Here’s the deal though, no one gives a single shiz what the supreme court of India “would” have done or do.

  24. An unnecessary and misleading piece. Out of context reference to Islam’s view on such matter.

  25. The speculative Mr Faizan Mustfa builds an imaginary narrative to show where his frustrations and sympathies belong under the guise of a lot of legalese.
    Unfortunately for Mr Mustafa, he has to live with Indian Supreme Court judgement on Ayodhya and presumably stay in India.
    The only commonality among, Ram Janambhumi Mandir / Babari Musjid; Hagia Sofia Church/ Mosque (& Jewish Temple/ Al Asqua Mosque in Jerusalem) is the penchant of Islamic conquerers to convert the places of worship of other faiths into Mosques!

  26. Whatever be one’s views on Ram Janmabhoomi verdict, this is a false equivalence. Hagia Sophia has been built as a church first, later “became” a mosque, then turned into a museum. It is now again a mosque because the majoriatarians of turkey wanted it to be a mosque even though it was built as a church first. In case of ram janmabhoomi, a hindu structure was demolished and a mosque was built. In Hagia Sophia case the first offenders got what they wanted even though it was built as a church. Here in ram janmabhoomi case, the site was “returned” to first owners i.e Hindus. I am sure Supreme Court of India is competent enough to know such a small difference. Unlike the author of this article who actually is an intelligent legal mind. You forgot who built what first and who destroyed and “converted” the sites first. Being clever, are we?

  27. Kemal Ataturk did the right thing. To amplify Turkeys secularism and make the world notice its intent, he converted the Hagia Sofia as a museum. And the structure itself would have made thousands of tourists come to Turkey.

    Erdogan was smart to realise this. He might have made it back to make it a mosque to amplify his intentions and make the Islamic world realise that he has arrived but he has has taken modern Turkey back to the medieval times both in thought and character.

  28. Mosque is a community center where people congregate and offer prayers.

    Mosque built on contested land, temple, church is an illegal structure as per Islam.

    Prayers offered in these illegal structure is not accepted by their god as per Islam.

    The fundamental difference is mosque is a community center while mandir is a place of worship.

    Statement of fact is there are close to 30000 community centers which are built by destroying desecrating ruining the mandir.

    In due course of time these community centers will be relocated starting with Kaashi and Mathura.

  29. Some interesting questions arise after reading this article – 1. Does the author now agree with the ratio of relevant SC judgement ? Or he is just using it to justify what he expected to have as the judgement from the Turkish SC? 2- Why should we Indians get involved in the Turkey’s internal affairs? 3- It is perhaps not well in India that there was a mass but peaceful transfer of population under Treaty of Lausanne in 1923? If that was a successful model, why it was not adopted in India in 1947! This could have avoided unnecessary blood bath and human tragedy that followed after the partition. Perhaps, the time window for transfer could have been set for next 30 years to ensure smooth transfer over a period of time with guarantee of individual rights till such time in the respective countries. This would have perhaps ensured that the relations between the two countries would have remained cordial rather than bitterly adversarial.

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