The Supreme Court's intervention

The stand of the Vajpayee government on the Ayodhya issue immediately prior to and after the Supreme Court ruling of March 13, and Attorney-General Soli Sorabjee's interpretation of the court's earlier verdict on the "disputed land", give cause for grave concern.

MOVING for the adoption of the Draft Constitution on November 4, 1948, Dr. B.R. Ambedkar warned the Constituent Assembly that "the form of the administration must be appropriate to and in the same sense as the form of the Constitution... it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution" (Constituent Assembly Debates; Volume 7; page 38).

Fifty years later, the warning came true when a Bharatiya Janata Party-led regime run by the Rashtriya Swayamsevak Sangh (RSS) came to power and soon dropped the mask of the National Democratic Alliance (NDA). Its head, Prime Minister A.B. Vajpayee, had said on May 12, 1991, that the construction of a Ram temple at Ayodhya was necessary "to save the honour of the Hindu community". Neither V.D. Savarkar, the author of Hindutva, nor the founders of the RSS (K.B. Hedgewar) and the BJP (S.P. Mookerjee) had raised the issue. Vajpayee gladly compromised with "the honour", on May 28, 1996, in order to save his 13-day regime by offering to "freeze" the Ayodhya issue. On May 20, 1996, he had said "there will be no softening in our stance" on the temple. He renewed the freeze in 1998 and 1999 in order to prop up the NDA. As Sushma Swaraj said in Bhopal on April 14, 2000, the Ram Janmabhoomi movement was "purely political in nature and had nothing to do with religion".

Vajpayee revived the issue in New York on September 9, 2000, and in the Lok Sabha on December 6, 2000, in response to the new RSS chief K.S. Sudarshan's aggressive moves. The country has known no peace since. Vajpayee told the Lok Sabha that "the construction of the Ram temple in Ayodhya was an expression of national sentiment which is yet to be fulfilled". He knew this was untrue. On April 6, 1989, he rejected the plea for a national monument in Ayodhya saying that "Hindus were the rightful claimants to the site", adding that he was not speaking as a BJP leader but as a Swayamsevak and Hindu (The Indian Express, April 7, 1989).

The Supreme Court has done the nation proud by its ruling on March 13, 2002. But the conduct of the government prior to and after the ruling, and the entire record of the RSS, give cause for grave concern. The case is adjourned for 10 weeks and will be placed before a larger Bench.

On March 15, the Prime Minister sent an official in the Prime Minister's Office (PMO), Shatrughan Singh, personally to receive the shila offered by Ramchandra Das Paramhans, after a puja avowedly as a step towards the building of the temple and in order, as V.K. Malhotra admitted, to "give sanctity" to the entire ceremony. The Vishwa Hindu Parishad's (VHP) international general secretary, Pravin Togadia, said it was an indication of the government's acceptance in principle of the demand for a Ram temple. C.R. Irani reveals that Shatrughan Singh actually gave a receipt "in his official capacity" and handed over the pillars to the Additional District Magistrate (ADM) "with the instruction that they be the first stone slabs for construction of a temple whenever it is and put on plinth" (The Statesman, March 19).

It is in this context that the Prime Minister called for a settlement out of court on March 16, "because it is becoming an impediment in maintaining communal harmony in the country", more truthfully, to his continuance in office.

The atmosphere was fouled by L.K. Advani's rath yatra in 1990 and the demolition of the Babri mosque on December 6, 1992. The matter was raked up by the RSS and the VHP, again with added gusto soon after the BJP came to power in March 1998. After over a year and a half of agitation the Sangh Parivar projected the Dharma Sansad at the Maha Kumbh Mela at Prayag in January 2001. It was the Dharma Sansad which graciously granted Vajpayee time until March 12, 2002, Mahashivratri day. Vajpayee dances to their tune and invites his NDA allies, Muslims and the entire nation to dance with him. He blames "both parties to the mandir-masjid dispute for having failed to come to any negotiated settlement on the issue". The implications of thus falsely equating the wrongdoers with the wronged are menacing and sinister. Vajpayee wants Muslims to yield to his pressure and that of the RSS-VHP, abandon their rightful claim in court cases to the site of the demolished mosque, and acquiesce in the construction of a temple on it.

None should be deceived by his promises to respect the court's ruling. Uttar Pradesh is now under President's Rule. Why does he not issue the notification under Section 11 of the Code of Criminal Procedure to facilitate commencement of the cases against L.K. Advani, Murli Manohar Joshi, Uma Bharati and others as Justice Jagdish Bhalla of the Allahabad High Court clearly asked it to do in his judgment on February 12, 2001? As pointed out earlier, it was to fill a lacuna. He upheld the Sessions Judge's order on September 9, 1997, framing the charges. The accused have warded off accountability to the law. It has been a sustained record of deceit (vide the writer's article "A reprimand for delay", Frontline, March 30, 2001).

On December 2, 1992, the Uttar Pradesh government run by the BJP issued a press note promising to abide by the Supreme Court's order and concluding: "However, according to the State government, kar seva which does not violate the aforesaid orders of the Hon'ble Court can be performed" (for the text, vide Mohammad Jamil Akhtar; Babri Masjid: A Tale Untold; Genuine Publications & Media P. Ltd., New Delhi, page 109. An excellent compilation of century-old documents). Ten years later the Supreme Court, which was deceived and defied by the Sangh Parivar in 1992, was invited to trust it, once again.

It is unfortunate that the Attorney-General, Soli Sorabjee, took the stand in the Supreme Court as he did on March 13. The Bench, comprising Justices B.N. Kripal, G.B. Pattanaik, and V.N. Khare, sharply said: "We don't want the December 6, 1992 incident to be repeated." It asked: "What will be the reaction to the symbolic puja in the current surcharged atmosphere?" Sorabjee wrongly said in a press interview that the Bench was "possibly" influenced by the Gujarat killings (The Indian Express, March 14). The puja would exacerbate tensions at any time. The VHP would rightly call it "victory", as it did on March 15. Fundamentally, it would have undermined secularism.

The Hindu reported: "Even as Mr.Sorabjee was making a forceful plea to allow the 'bhoomi puja', the Bench observed 'our fundamental foundation is secularism. We are not going to do anything that will affect secularism'" (March 14). This aspect was glossed over when Sorabjee submitted that, on his interpretation of the 1994 ruling, temporary use of the "undisputed" adjacent land for a brief duration for the performance of 'puja' was not per se prohibited and would not violate the "status quo" order which, he said, pertained only to the "disputed land". He proceeded to specify the administrative measures the government would take. In press interviews Sorabjee said: "I was only giving my own interpretation of the 1994 judgment... on a specific query from the Bench." He was not "airing anyone's views - neither of the government nor that of the Vishwa Hindu Parishad", adding: "Naturally as Attorney-General, the government cannot disown the views I gave before the Supreme Court" (J. Venkatesan: The Hindu, March 14).

In 1994 the court had no reason to imagine that anyone in his senses would ask to perform puja on the adjacent land, which is why it did not prohibit it. But it is clear from its judgment that such a puja would be against the principle of secularism. To press that omission into service eight years later and claim that there is no bar on it is to misread the judgment. It is sad to say that this is the first time in the country's history that the Attorney-General of India and the Government of India took a stand before a court of law favouring one community.

The issue here is the government's culpability. These facts are relevant. First, there were credible reports just a day earlier of the government's stand. They foreshadowed the stand Sorabjee took. Swati Chaturvedi, a correspondent, wrote: "Law Minister Arun Jaitley has told the Union Cabinet that there is no legal bar to handing over the undisputed part of the 67 acres of land acquired by the Centre in Ayodhya to the Ramjanmabhoomi Nyas, citing a 1994 Supreme Court judgment. The Law Minister did not give a written opinion, but he briefed the Cabinet with this view on March 5" (The Hindustan Times, March 13).

Indeed, a hint was thrown by Jaitley himself to a television channel that there was a way out while staying on the right side of the law. Sudesh K. Verma of The Statesman reported (March 12) that the government "may approach the Supreme Court after March 13 seeking a direction whether the undisputed land... can be transferred to the Ramjanmabhoomi Nyas... This is besides the government's response to the court's notice for a case on Wednesday relating to the VHP's proposed puja on March 15. The move is being contemplated to appease the Parivar..."

Secondly, the Bench sought to know the government's stand and the A.G. responded to this query, as Jaitley admitted in the Rajya Sabha on March 13. Rajeev Dhavan, who appeared in the case, wrote: "Sorabjee gave his views, but in response to a question from the Bench about the government's stance" (The Hindustan Times, March 16).

Thirdly, reports of the proceedings fortify this. The Indian Express, for instance, reported: "Sorabjee also said in the court that the Centre favoured the performance of the symbolic puja as a concession to 'strong emotional feelings of the Rambhakta and its importance from the viewpoint of law and order'." This would be irrelevant and improper in a detached exposition of the law by the A.G. It is understandable in counsel giving the BJP regime's stand.

Fourthly, the Prime Minister himself said on March 13: "The Attorney-General, Soli Sorabjee, had presented the government's views in the Supreme Court" (Neena Vyas, The Hindu, March 14).

Fifthly, while the VHP's counsel could tell the Attorney-General how many sevaks would participate, the precise administrative measures he mentioned - 45 companies of the paramilitary forces apart from personnel of the Uttar Pradesh police - could have come only from the government.

Lastly, on March 14, the A.G. asked the court that puja in the 14 temples be not stopped. Since Sorabjee's was indeed the government's stand, Vajpayee's earlier remarks that he would abide by the court's orders explain a lot. The hypocrisy of his assertion to Muslim leaders on March 12 ("I do not represent any particular community, but the entire nation") stands exposed.

It is important to note the Prime Minister's statement to Parliament on March 14 that the government accepted the court's order and "are not going to the court for seeking any new directions". Thanks entirely to Manoj Mitta's mention (The Indian Express, March 14) of an inadvertent error in the description of the acquired plot, the court clarified on March 14 that the entire acquired land of 67.703 acres was covered. His explanation of how the error crept in puts paid to a laboured attempt to insinuate that there was more to it than that.

But Manoj Mitta's greater service lay in his reminder that the Ramjanmabhoomi Nyas' claim to ownership of 43 acres out of the 67 acquired by the Union is false: "98 per cent of the land - to be precise 42.09 acres - it claims to own was in fact only leased to it by the Kalyan Singh government... and the Nyas' plans to build a temple on that land run contrary to the terms on which the property was leased. On March 20, 1992, the U.P. Tourism Department gave the land to the Nyas on perpetual lease against a nominal rent of one rupee for the public purpose of implementing what was by then a nine-year-old project called the Ram Katha Park."

As the Prime Minister said in the Lok Sabha on March 14 the Ramjanmabhoomi Nyas is "the owner" of one acre - only. The rest it holds as a lessee and the lease is liable to be challenged by any citizen on the grounds that it was granted in a mala fide manner for a communal and not a public purpose and the lessee has systematically violated the terms of the lease.

SEVEN conditions were attached to the lease deed. Construction of a temple would violate it. However, "when the government leased out 42.09 acres... the first thing the Ramjanmabhoomi Nyas and the Vishwa Hindu Parishad did was to demolish some small temples and raze a Muslim graveyard located there" (The Indian Express, March 10, 2002, vide the White Paper on Ayodhya, page 16). The graveyard stood on land owned by a wakf, a trust in perpetuity in Muslim law, as enforced in India. The government had no title over it. Nor has the Nyas, still less the VHP. It was acquired by the Union. It is therefore wrong to say that Muslims have no interest over it or that the adjacent land is "undisputed" as Justice J.S. Verma said in the 1994 majority ruling. It was both obiter and ipse dixit. There was absolutely no factual material before the court to warrant the conclusions, much to refute it - the government's White Paper on Ayodhya and the Report of the delegation led by S.R. Bommai of Members of the Standing Committee of the National Integration Council (NIC) and MPs, to Ayodhya on April 7, 1992. Both documents show how the BJP's Kalyan Singh government and the VHP played with the land in preparation for the crime of December 6, 1992. First, 2.77 acres were acquired on October 21, 1991 on a palpably false pretext - "for the development of tourism and providing amenities to pilgrims at Ayodhya". It was struck down as a mala fide act by the High Court on December 11, 1992. In February 1992 a boundary wall was sought to be built around the acquired area as well as the mosque.

The White Paper records: "In March 1992, the State authorities undertook demolition of additional structures in the Ram Janmabhoomi-Babri Masjid complex, such as the Sankat Mochan Temple, major portion of the Sakshi Gopal Temple (except for the room containing the deity and an adjoining room), Sumitra Bhavan, Lomes Ashram, Gopal Bhavan, and shops."

The Bommai Report found that the State government had "failed to fulfil the solemn assurances" given to the NIC. A letter of April 7, 1992 annexed to the Report (page 83) sets out the Muslims' claims and grievances in respect of the adjacent land. It said: "That on three sides of Babri Masjid exists an ancient graveyard over which existed thousands of graves, kachcha and pucca, including the grave of Qazi Qidwa. That scores of graves existed till recently which have been dismantled by the State government after 20th March, 1992, including the grave of Qazi Qidwa..." This causes great concern and anguish to the entire Muslim community and gives an extreme provocation for confrontation. That the demolition of temples also causes concern, anguish and fear that Babri Masjid may also be demolished in the same manner at any time or by collecting a crowd of undesirable persons it may be demolished... That the attack on the mosque of Kasai Bara, Faizabad is only a trailer for a bigger action to destroy Babri Masjid."

Muslims had not only a legal "interest" in the adjacent land before its acquisition, but retain it even thereafter. For the entire 67.7 acres were acquired to build both a mosque and a temple. The winner in the President's Reference to the Supreme Court for advisory opinion was to receive the site of the demolished mosque, the "disputed land": the loser was to receive a plot on the "adjacent land". Thanks to Justice J.S. Verma's unfounded ipse dixit that there was "no dispute" over the adjacent land, Muslims would lose it as well if they lost in the title suits before the Special Bench of the Allahabad High Court in Lucknow. Justice Verma himself referred to the White Paper and to the Central government's announcement of December 27, 1992, on the acquisition. "The acquired area excluding the area on which the disputed structure stood would be made available to two Trusts which would be set up for construction of a Ram Temple and a Mosque respectively and for planned development of the area" (Ismail Faruqui vs. Union of India (1994) SCC 360 at page 383).

The Statement of Objects and Reasons appended to the Acquisition Ordinance said: "It was considered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a complex which could be developed in a planned manner wherein a Ram Temple, a mosque, amenities for pilgrims, a library, a museum and other suitable facilities can be set up."

On September 9, 1994, the Solicitor-General told the Court: "Government stands by the policy of secularism and of even-handed treatment of all religious communities. The Acquisition of Certain Area at Ayodhya Act, 1993, as well as the Presidential Reference, have the objective of maintaining public order and promoting communal harmony and the spirit of common brotherhood amongst the people of India. Government is committed to the construction of a Ram Temple and a mosque, but their actual location will be determined only after the Supreme Court renders its opinion in the Presidential Reference."

Yet, the majority judgment, delivered by Justice J.S. Verma on behalf of Chief Justice M.N. Venkatachaliah and Justice C.N. Ray and himself, said: "The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining entire property acquired under the Act is such over which no title is claimed by the Muslims. A large part thereof comprises of properties of Hindus of which the title is not even in dispute." This is manifestly wrong. There was no evidence in its support. There could not be. The court was simply deciding the legality of the act.

Such errors abound in the majority ruling. It recorded: "In spite of initial reports from Ayodhya on 6-12-1992 indicating an air of normalcy, around midday a crowd addressed by leaders of BJP, VHP, etc., climbed the Ram Janma Bhumi-Babri Masjid (RJB-BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of 'national shame'. A five-hundred year-old structure (sic) which was defenceless and whose safety was a sacred trust in the hands of the State government was demolished."

This figures on page 379, para 6. But, on page 409, para 52, the BJP-VHP inspired crowd becomes "miscreants". "The act of vandalism so perpetrated by the miscreants cannot be treated as an act of the entire Hindu community for the purpose of adjudging the constitutionality of the enactment... The miscreants who demolished the mosque had no religion, caste or creed except the character of a criminal and the mere incident of birth of such a person in any particular community cannot attach the stigma of his crime to the community in which he was born." This was in the context of upholding Section 7 (2) of the Act which sanctified the fruits of the crime of December 6, 1992, by protecting worship of the idols planted on the site of the demolished mosque.

In the next para (53) we are assured that this, after all, was a lesser right than what was enjoyed before the crime. "The miscreants who demolished the mosque are suspected to be persons professing to practise the Hindu religion. The Hindu community must, therefore, bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold." The reasoning is tortuous to a degree and contradicts admissions made by top BJP leaders. Jaswant Singh told The Economic Times (June 11, 1996): "We have accepted the responsibility (for the demolition) directly." Vajpayee told Organiser (May 7, 1995): "We did pull down the structure in Ayodhya... the Hindu society has been regenerated, which was the task of the RSS."

HAVING ruled in gross error on Section 7(2) and on the title to the adjacent land, the majority first ruled categorically (on page 408, para 50) that land in excess of what is required can be returned to the owners "after the exact area needed for the purpose is finally determined". Also, "making of the Reference under Article 143(1) simultaneously with the issuance of Ordinance, later replaced by the Act, on the same day also is an indication of the legislative intent that the acquisition of the disputed area was not meant to be absolute but limited to holding it as a statutory receiver till resolution of the disputes and then to transfer it, in accordance with, and in terms of the final determination made in the mechanism adopted for resolution of the dispute". This is qualified only a few lines later by seizing on an expression that does not support such a construction. "The expression 'so far as may be' is indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under sub-section (1). This provides for the situation of transfer being made, if necessary, at any stage and of any part of the property, since Section 7(2) is applicable only to the disputed area, does not countenance the dispute remaining unresolved or the situation continuing perpetually. The embargo on transfer till adjudication and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found to be unnecessary, as indicated."

Now, read the very next paragraph: "Acquisition of the adjacent undisputed area belonging to Hindus has been attacked on the ground that it was unnecessary since ownership of the same is undisputed. Reason for acquisition of the larger area adjacent to the disputed area has been indicated. It is, therefore, not related to the resolution of the dispute, which is the reason for the entire acquisition. Even though, prima facie, acquisition of the adjacent area in respect of which there is no dispute of title and which belongs to Hindus may appear to be a slant against the Hindus, yet on closer scrutiny it is not so since it is for the larger national purpose of maintaining and promoting communal harmony and in consonance with the creed of secularism. Once it is found that it is permissible to acquire an area in excess of the disputed area alone, adjacent to it, to effectuate the purpose of acquisition of the disputed area and to implement the outcome of the final adjudication between the parties to ensure that in the event of success of the Muslim community in the dispute their success remains meaningful, the extent of the adjacent area considered necessary is in the domain of policy and not a matter for judicial scrutiny or a ground for testing the constitutional validity of the enactment as earlier indicated. However, it is with the caveat of the Central government's duty to restore it to its owner, as indicated earlier, if it is found later to be unnecessary, and reservation of liberty to the owner to challenge the needless acquisition when the total need has been determined." The best construction is that all this surplusage was said in the context of a possible settlement before the case is decided.

The minority judgment, delivered by Justice S.P. Bharucha on behalf of Justice A.M. Ahmadi and himself, observed; "Section 7(2) perpetuates the performance of puja on the disputed site. No account is taken of the fact that the structure thereon had been destroyed in 'a most reprehensible act. The perpetrators of this deed struck not only against a place of worship but at the principles of secularism, democracy and the rule of law...' (White Paper, para 1.35). No account is taken of the fact that there is a dispute in respect of the site on which puja is to be performed; that, as stated in the White Paper, until the night of 22-12-1949/ 23-12-1949, when the idols were placed in the disputed structure, the disputed structure was being used as a mosque, and that the Muslim community has a claim to offer namaz thereon."

They added: "When therefore adherents of the religion of the majority of Indian citizens make a claim upon and assail the place of worship of another religion and, by dint of numbers, create conditions that are conducive to public disorder, it is the constitutional obligation of the State to protect that place of worship and to preserve public order, using for the purpose such means and forces of law and order as are required. It is impermissible under the provisions of the Constitution for the State to acquire that place of worship to preserve public order. To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the Constitution."

Shortly after the judgment was delivered on October 24, 1994, Soli Sorabjee said: "The majority judgment overlooks that the reason why the worship in the mosque had come to a standstill was the surreptitious entry into the mosque and the placing of idols there in a clandestine manner. Indeed that was the unequivocal admission of the State of U.P. in its written statement solemnly affirmed in the suit.

"The real issue was not whether Hindus are offering worship in a reduced form but whether worship and puja of idols by one community should at all be permitted after the dastardly act of destruction, and for which in the ringing words of the majority 'the Hindu community must, therefore, bear the cross on its chest for the misdeed of the miscreants reasonably suspected to belong to their religious folds'.

"The distressing part is that the majority judgment countenances a situation which was the outcome of an act of national shame. The minority community is understandably disappointed with the majority judgment" (Minorities: National and International Protection by Soli Sorabjee, Minorities Council of India, New Delhi, 1995. The booklet is "based on a lecture" he had delivered, the publisher's note of March 15, 1995, records).

The Supreme Court's order of March 13 forbade "religious activity of any kind by anyone either symbolic or actual including bhumi puja or shila puja" and also forbade the Government of India from handing over any "part" of the acquired land to "anyone". Nor shall "any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith".

One can only hope that the larger Bench, to which the case is referred, will decide it in this spirit and correct the errors of the majority ruling in 1994.