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Muslims wronged

Print edition : Oct 22, 2010 T+T-
MUSLIMS OFFER PRAYERS at a mosque in Allahabad on October 1, a day after the verdict.-PTI

MUSLIMS OFFER PRAYERS at a mosque in Allahabad on October 1, a day after the verdict.-PTI

The judgment is a crowning act on consistent judicial injustices to Muslims since December 23, 1949.

THE judgments delivered by the Lucknow Bench of the Allahabad High Court on September 30 on the Babri Masjid cases not only flagrantly violate the law and the evidence but a binding unanimous judgment of the Supreme Court on the Babri Masjid case itself ( M. Ismail Faruqui and Others vs Union of India and Others (1994) 6 Sec 360). It sanctified the conversion of a historic mosque, which had stood for 500 years, into a temple.

The country showed maturity by receiving the judgments with calm and dignity despite an obscene attempt by some members of the Bharatiya Janata Party to demand instant Muslim submission to the wrong, a fact which was noted pointedly by a distinguished political scientist on television where, for the most part, loud ignorant anchors had a field day with guests no better-equipped. Stability is important in nation building. As important is justice to all. On the Babri Masjid, for 60 years from 1950 to 2010, Muslims have been woefully wronged by every single court ruling, including that of the Supreme Court after the demolition of the mosque on December 6, 1992. One of the leaders of the Bar remarked more than once that the Bench of the Supreme Court that heard the case split along communal lines.

On one point all the three judges of the Lucknow Bench Justices D.V. Sharma, Sudhir Agarwal and S.U. Khan were in remarkable and laudatory agreement idols of Ram were placed inside the mosque on the night of December 22-23, 1949. The Rashtriya Swayamsewak Sangh's Organiser of March 29, 1987, said they miraculously appeared there. The BJP's White Paper on Ayodhya said they had appeared there. L.K. Advani used the same expression. The court has confirmed a truth which was known to all and confirmed the Parivar's contempt for the truth.

But the three judges do not realise the legal implications of the truth they themselves acknowledged. Here are some incontrovertible and uncontroverted official documents:

1. Two reports dated 10 and 23, December 1948, by the Inspector of Waqfs, Mohammed Ibrahim, after visits to the Babri mosque. He recorded the harassment and stoning of the namazis going to the mosque. Yet prayers continued to be offered just before dawn and on Fridays (Chapter IV, Doc. 5).

2. Official support to an application by Hindus in 1949 to build a Ram temple on the Chabutra near the mosque. The City Magistrate's Report of October 10, 1949, recorded: Mosque and temple are situated side by side and both Hindus and Muslims perform their rights and religious ceremonies. The Hindu population is very keen to have a nice temple at the place where Bhagwan Rama Chandra Ji was born. The land where the temple is to be erected is of Nazul' (Chapter IV, Doc. 6).

3. The First Information Report on December 23, 1949, lodged by Sub-Inspector Ram Dube, Police Station, Ayodhya, reads thus:

According to Mata Prasad (paper no. 7), when I reached to [ sic] Janam Bhumi around 8 o'clock in the morning, I came to know that a group of 50-60 persons had entered the Babri mosque after breaking the compound gate lock of the mosque or through jumping across the walls (of the compound) with a stair and established therein, an idol of Shri Bhagwan and painted Sita, Ram, etc. on the outer and inner walls. Ram Das, Ram Shakti Das and 50-60 unidentified others entered the mosque surreptitiously and spoiled its sanctity. Government servants on duty and several others are witness to it. Therefore, it is written and filed (Chapter V, Doc. 2).

4. Radio message on December 23, 1949, by District Magistrate K.K. Nayar to the Chief Minister, Chief Secretary and Home Secretary: A few Hindus entered Babri Masjid at night when the Masjid was deserted and installed a deity there. Police picket of fifteen persons was on duty at night but did not, apparently, act (Chapter V, Doc. 3).

5. December 26, 1949, Nayar to Chief Secretary: Installation of the idol was carried out in the night between 22 and 23 instant (Chapter V, Doc. 5).

6. Ramchandra Das Paramhansa's admission to The New York Times on December 22, 1991, that he had installed the idol (Chapter V, Doc. 16).

7. Prime Minister Jawaharlal Nehru's wire and letters to Chief Minister G.B. Pant (Chapter V, Doc. 18).

8. Deputy Prime Minister Vallabhbhai Patel's letter to Pant on January 9, 1950 (Chapter V, Doc. 19).

9. Akshaya Brahmachari's letters and memorandum to Home Minister Lal Bahadur Shastri (Chapter V, Doc. 21).

10. The Imam of the Babri Masjid, Abdul Ghafar's interview in 1987 (Chapter V, Doc. 11).

11. Written statement in court by the State of Uttar Pradesh, signed by Deputy Commissioner, Faizabad, J.N. Ugra, on April 25, 1950 (Chapter V, Doc.13).

Paragraphs 12 and 13 read thus:

(12) That the property in suit is known as Babri Mosque and it has for a long period been in use as a mosque for the purpose of worship by the Muslims. It had not been in use as a temple of Shri Rama Chandraji.

(13) That on the night of December 22, 1949, the idols of Shri Rama Chandraji were surreptitiously and wrongly put inside it.

In The Statesman of October 26, 1986, Chandan Mitra, now eminence grise of the BJP, quoted an official as saying, Obviously the guard had been bribed heavily.

From July to September 1949, there were efforts to build a Ram temple on the chabutra (platform) outside the mosque but within its complex. The City Magistrate, Faizabad, went to the spot on October 10, 1949, and submitted a favourable report. Abdul Ghafar, the imam of the mosque, testified that until the end we used to offer namaz inside the mosque and the Hindus prayed on the chabutra ( Sunday Mail, July 2, 1989). Litigation in the 19th century for permission to build a temple was confined to the chabutra not the mosque (1883-1886).

The Gandhian Akshaya Brahmachari's detailed memorandum to Lal Bahadur Shastri recorded the campaign on the capture of the mosque that was mounted in November 1949: There is terror in the hearts of the Muslims of Faizabad.

The law is not impotent in such cases. Sections 295 and 297 of the Penal Code make the acts offences in law. Section 145 of the Criminal Procedure Code (CrPC) of 1898 empowers the magistrate to require the parties to file their claims, not on title to the property, but as respects the fact of actual possession of the subject of dispute. He decides which of the parties was in possession. If a party has been forcibly and wrongfully dispossessed, the magistrate may treat it as if it had been in possession. It is then restored in possession, leaving it to the aggressor to file a civil suit to establish his title to the property.

In Ayodhya this very Section was used to sanctify the Muslims' dispossession. Markandey Singh, Magistrate First Class, ordered the attachment of the said buildings and appointed Priya Dutt Ram, Chairman of the Municipal Board, as receiver of the mosque. This was on December 29, 1949. He took charge on January 5, 1950, and submitted a scheme. On January 19, 1950, a Civil Judge, Bir Singh, issued an injunction restraining removal of the idols from the mosque and from interfering with the puja carried on in the mosque since December 23, 1949. On April 26, 1955, the Allahabad High Court confirmed the injunctions.

Losing battle

The conversion of a mosque into a temple was now complete. The Muslims lost, and were fated to lose, every round in the battles in the courts of justice for correction of the wrong perpetrated on December 22-23, 1949.

Contrast this with the order of the Sub-Divisional Magistrate, Parliament Street, New Delhi, A.G. Cutting, of February 7, 1972, in The State vs Sadiq Ali and Others and S.D. Sharma and Others under Section 145. He ordered restoration of possession of 7 Jantar Mantar Road (Congress House) in New Delhi to Congress (O). Not because it was the real' Congress but because it had been forcibly dispossessed by Congress (R) on November 13, 1971. That order was also made under Section 145 of the CrPC. A similar order should have been made in the Babri Masjid case in 1949. The contrast is glaring. As Magistrate Cutting said, the Congress (O)'s men were dispossessed. They are therefore entitled to be put back into possession until they are evicted from the said premises by an order of a competent court (in a regular civil suit on title).

In the Ayodhya case, the Receiver's scheme, predictably, said the most important item of management is the maintenance of Bhog and Puja in the condition in which it was carried on when I took over charge. There were to be at least three pujaris who should be allowed free access to the installed idols. Under the scheme, Muslims were altogether forbidden to pray in the mosque; Hindus were permitted to offer puja and have darshan of the idols from a side gate and make offering through four pujaris employed by the Receiver who was appointed by the Magistrate.

Civil suits on title were filed by the parties which were decided on September 30, 2010. The next round was on January 25, 1986, when a lawyer filed an application for removal of restrictions on the puja. On February 1, 1986, District Judge K.M. Pandey ordered the opening of the locks after 45 minutes' hearing. The Muslims were not impleaded in the application and were not heard by the judge. On January 3, 1986, the Lucknow Bench of the High Court ordered maintenance of the status quo.

The next step was the demolition of the Babri Masjid on December 6, 1992. On January 7, 1993, the President promulgated the Acquisition of Central Area at Ayodhya Ordinance acquiring the site of the mosque later enacted as an Act of Parliament and asked the Supreme Court for its advisory opinion on this question: Whether a Hindu Temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?

Fruit of crime

The demolition squad of the so-called kar sevaks had built a temporary structure after the demolition and kept the idols there. On December 9, West Bengal Chief Minister Jyoti Basu asked the Centre to demolish this fruit of crime. The Union Home Secretary Madhav Godbole refused to pray there. God could not reside in that temple, the construction of which was associated with so much deceit and wanton violence ( Unfurnished Innings, pages 406-407).

Alarmed at the sheer absurdity of the President's query to the Supreme Court, the country's foremost lawyer N.A. Palkhivala wrote a devastating critique in The Times of India. It has acquired added relevance after the judgment of September 30. He wrote:

It is to my mind absurd to suggest that the highest Court in the country should be asked to decide questions of history or archaeology. But the government has now asked the Supreme Court to give its opinion under Article 143 of the Constitution, whether a temple existed centuries ago on the site where the Babri Masjid stood before its demolition.

Historians have expressed widely divergent views on the issue whether there was a pre-existing temple on the site on which the mosque was built by Babur. Much less are they agreed that Rama was born at that place. There is even a greater difference of opinion on the question whether Rama actually lived as a human being or whether he was the supramental ideal created by mythology to represent the perfect man. To ask the Supreme Court or the Allahabad High Court to decide such questions of mythology or history, or mixed questions of mythology and history, is to bear witness to the bankruptcy of our political institutions.

It is a measure of the degradation to which we have reduced our third-rate democracy that we have lost all sense of propriety, and are not only willing but eager to call upon the Courts to decide questions of opinion or belief, history, mythology or political expediency. Never in the history of any country have Courts been approached to deal with the type of questions which are now suggested as fit to be referred to the Courts in connection with the incidents at Ayodhya.

The consequences of asking the Supreme Court or the Allahabad High Court to deal with the type of questions which are suggested for reference would be disastrous in the long run.

It would thrust upon the Court a task for which it is not qualified by training or experience. Courts can deal with questions of law or of fact. They are not qualified to deal with questions in other fields like archaeology or history. A judge can decide only upon documentary evidence or evidence given by a witness as to what he himself saw or heard. It is well established that hearsay evidence is inadmissible in a Court of law under the Indian Evidence Act.

If the Court is pushed into the political arena, it would impair the image and undermine the status of the Court.

Archaeology is the study of the art, customs and beliefs of ancient times. It can afford a ground for belief or an opinion but never for universal certainty. Cannot two minds come to different conclusions on the same archaeological evidence? How can a conclusion reached by a judge be binding on people whose opinions or beliefs go counter to those of the judge?

Palkhivala was vindicated by the Supreme Court, while his warnings have been proved all too sound now by the Lucknow Bench.

Presidential reference

A five-member Bench of the Supreme Court Justices M.N. Venkatachaliah, J.S. Verma and G.N. Ray in the majority upheld the Act, bar one provision which abated the civil suits in the High Court. Justices A.M. Ahmadi and S.P. Bharucha held the entire Act to be void. All agreed that the Act and the reference for an advisory opinion were an integral whole. But while Justice Verma, who spoke for the majority, belittled the moral and legal significance of the mosque's demolition, an offence in law, and did so as judges tend to do in high-flown rhetoric, Justice Bharucha, who spoke for the minority, reckoned with the crime fully and, unlike the majority, refused to perpetuate the situation it had created. Section 7 (2) of the Act asked the government to ensure that the position existing before the commencement of this Act is maintained.

Justice Verma ruled shockingly that this affected both communities equally since the Muslims had not been offering worship at any place there after December 1949 a right they had only lost by deceit and force. Justice Bharucha subjected this logic to deserved and withering scorn.

However and this is very relevant to the Lucknow Bench's ruling the judges unanimously ruled that Section 4(3), which abated the civil suits, was void. Why? Because it was one-sided and deprived the Muslims of the defence valid in law that a 500-year-old mosque by sheer adverse possession extinguished any claims to title based on history, real or imagined.

This is what Justice Verma said: This also results in extinction of the several defences raised by the Muslim community including that of adverse possession of the disputed area for over 400 years since construction of the mosque there in 1528 A.D. by Mir Baqi. Ostensibly the alternate dispute resolution mechanism adopted is that of a simultaneous Reference made the same day under Article 143(1) of the Constitution to this Court for decision of the question referred. It is clear from the issues framed in those suits that the core question for determination in the suits is not covered by the Reference made, and it also does not include therein the defences raised by the Muslim community. It is also clear that the answer to the question referred, whatever it may be, will not lead to the answer of the core question for determination in the pending suits and it will not, by itself, resolve the long-standing dispute relating to the disputed area. Reference made under Article 143(1) cannot, therefore, be treated as an effective alternate dispute-resolution mechanism in substitution of the pending suits which are abated by Section 4(3) of the Act. There can be no doubt, in these circumstances, that the Special Reference made under Article 143(1) of the Constitution cannot be construed as an effective alternative dispute-resolution mechanism to permit substitution of the pending suits and legal proceedings by the mode adopted of making this Reference. In our opinion, this fact alone is sufficient to invalidate sub-section (3) of Section 4 of the Act.

While Justice Bharucha said: The provisions of Section 4 of the Act, inasmuch as they deprive the Sunni Waqf Board and the Muslim community of the right to plead and establish adverse possession as aforesaid and restrict the redress of their grievance in respect of the disputed site to the answer to the limited question posed by the Reference and to negotiations subsequent thereto, and the provisions of Section 3 of the Act, which vest the whole bundle of property and rights in the Central government to achieve this purpose, offend the principle of secularism, which is part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.

He added: The Act and the Reference, as stated hereinabove, favour one community and disfavour another; the purpose of the Reference is, therefore, opposed to secularism and is unconstitutional.

He pointed out another flaw. The Court being ill-equipped to examine and evaluate such material (on archaeology and history) it would have to appoint experts in the fields to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides.

The Supreme Court gave this unanimous ruling on October 24, 1994. On March 5, 2003, the Allahabad High Court ordered excavation of the land and ruled that it did not violate the Supreme Court judgment. Why? Because one of the important issues in the suit is whether there was any temple/structure which was demolished and mosque was constructed on the disputed site.

But this was the very issue which had been referred by the President to the Supreme Court for its advisory opinion and the Court declined to answer it because of its irrelevance. The issue was whether adverse possession by the mosque extinguished other titles. The excavation order revived this irrelevant issue in breach of the Supreme Court judgment. The rest followed inexorably until September 30, 2010.

The Court's order was criticised by archaeologists of the highest distinction in a statement on March 10, 2003. The task of excavation was assigned to a controversial agency. The Archaeological Survey of India's report has been widely criticised (vide Ayodhya: Archaeology After Excavation by D. Mandal and Shereen Ratnagar, Tulika Books, 2007).

In his judgment on the land acquisition case, delivered on December 11, 1992, Justice S.H.A. Raza of the Allahabad High Court rightly said that an article of faith cannot be stretched to such an extent which threatens the Rule of Law. The contention that faith is beyond the jurisdiction of the Court is centred around the application of theocratic ideas. Still less can the faith of one community become the law of the land by a judicial ruling because it happens to be the majority community.

But what if judges themselves rely on their own religious faith in their judicial orders? Justice D.V. Sharma's remarks on Ram and the spirit of divine in this context are eloquent enough. Courts can try only suits of a civil nature (Section 9 of the Civil Procedure Code) in matters of faith. Remember the Evidence Act permits expert evidence only on a few limited matters (Sections 45 to 50). History and archaeology are not among them. The Act itself is misread by Justice S.U. Khan, who held that both the parties have failed to prove commencement of their title. Hence by virtue of Section 110 of the Evidence Act, both are held to be joint title holders on the basis of joint possession.

Section 110 says no such thing. It says, on the contrary, that when the question is whether any person is owner of anything of which he is shown to be in possession of, the burden of proving that he is not the owner is on the person who affirms that he is not the owner in this case, the Sangh Parivar vis-a-vis the Babri Masjid. The Supreme Court has held that a presumption of an origin in lawful title could be drawn... in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming. The longer the possession, the stronger the presumption. (1991 Supp (2), SCC 228 at pages 243-244).

Records of the 19th century litigation disprove Justice Khan's inference of joint possession. From such errors flow the bizarre order of a tripartite partition, which the media and others have so readily lapped up as an act of judicial statesmanship.

The record since December 23, 1949, shows the judgment of September 30, 2010, to be a crowning act on consistent judicial injustices to Muslims in 1950, 1955, 1986 and 1994.

In the Shahidganj masjid case, there was incontrovertible proof of a 1722 waqf (trust) to build a mosque. But it came under the possession of Sikhs after 1762. In the 20th century from the District Court, the High Court of Lahore and the Privy Council ruled against the Muslims on the ground of adverse possession. The Premier of Punjab Sikander Hyat Khan rejected pleas for legislation to overturn the verdict. Jinnah supported him fully. The mosque, now a Sikh gurdwara, still stands in Lahore undemolished.

Calm has been preserved, creditably, but the pain inflicted on Muslims is not concealed. This is not how a secular edifice is built. It was left to Mohammed Hashim Ansari, the oldest living petitioner, to express the anguish, Masjid bahut banegi, lekin desh nahi banenge (Many more mosques will be built, but the nation will not be built this way). The Supreme Court can prove him wrong. Those who rushed to acclaim the order of September 30 revealed worse than ignorance. Their enthusiasm reflected indifference to right and wrong.

We are not an island unto ourselves. What impression of our judiciary will courts elsewhere form?