WHILE the construction of the Somnath temple bears no relevance to, let alone provide justification for, the crime which the Sangh Parivar committed on December 6, 1992, by demolishing the Babri Masjid at Ayodhya, the case of the Shahidganj Masjid in Lah ore is strikingly relevant - as Ayodhya in reverse. Outside the Parivar's ranks, not one scholar of repute, Indian or foreign, has bought its theory that Mir Baqi, the Governor of Ayodhya appointed by Babar, demolished a temple at Ayodhya to construct th e Babari mosque in 1528. There is overwhelming evidence that prayers were being said by Muslims till the night of December 22-23, 1949 when idols were surreptitiously planted there converting a mosque into a temple. The imam who led the prayers survived to testify to this. The first information report (FIR) lodged by sub-inspector Ram Dube on December 23 recorded this crime (vide the writer's essay Legal Aspects to the Issue in S. Gopal (ed.); Anatomy of a Confrontation; Viking; 1991; page 70). Chandan Mitra quoted a Faizabad official as saying that "obviously the guard had been bribed heavily" (The Statesman, October 26, 1986).
In contrast, three courts upheld Muslims' claim that in 1722 Falak Beg Khan created a wakf (trust) and dedicated land to build a mosque, appointed Sheikh Din Mohammed and his descendants as muttawalis (trustees) of the mosque, a school and an orchard and a well on the land. All three courts, however, also held - and rightly so - that by adverse possession to Sikhs after 1762 Muslims had lost title to the site and the mosque.
This is an apt precedent. It is Ayodhya in reverse, as it were. All the elements of the Ayodhya case were present - a mosque in the adverse possession of another community, Sikhs, to whom the site was a hallowed place; its demolition by Sikhs; frenzied a gitation by Muslims; involvement of religious figures; Muslim frustration with the courts and determined moves in the Punjab Assembly to enact legislation for the takeover of the site. They all failed. But the situation was not reversed even after the es tablishment of Pakistan. To this day, when there is hardly anyone to visit it, the Gurdwara Shahidganj stands, as it did before August 15, 1947. This precedent should shame the Sangh Parivar.
In the Shahidganj case the judiciary acted impartially and speedily. In the Ayodhya case, Justice V. R. Krishna Iyer angrily remarked: "The judiciary will be described as the villain of the piece." In his view it lacked the guts to face that issue. (T he Times of India, November 11, 1989).
After the Congress split, Indira Gandhi's supporters forcibly ousted her rivals from Congress House at 7 Jantar Mantar Road, New Delhi, on November 13, 1971. But, on February 7, 1972, the Sub-Divisional Magistrate, Parliament Street, ordered restoration of possession to the oustees, under Section 145 of the Criminal Procedure Code. It is a summary remedy designed to protect the party in possession and deter use of force to acquire it. Title to the land is irrelevant in these proceedings. It is for the c laimant to go to a civil court to establish his title and acquire possession. He cannot take the law in his own hands. In Ayodhya, Muslims were driven to court to reclaim the possession from which they had been forcibly ousted. On December 18, 1961 the f irst civil suit was filed by Muslims. It is yet to be decided.
This legal issue was faced squarely by the courts in the Shahidganj case. Its history was set out authoritatively by the Privy Council, on May 2, 1940, in a judgment delivered by Sir George Rankin. The other members of the Board were Lord Thankerton, Lor d Russell of Killowen, Lord Justice Goddard and Dr. M.R. Jayakar. As a leader of the Hindu Mahasabha, Jayakar had wrecked all chances of compromise on the Nehru Report at the All Party Conference in 1928 and at the Round Table Conference in London later. Yet, such was the legal culture of the times that neither the Muslim League nor its president, Mohammed Ali Jinnah, raised any objection to his participation in such a case. (Masjid Shahid Ganj vs Shiromani Gurdwara Prabhandak Committee: 67 India n Appeals 251).
The facts are set out in the judgment, which is a model of lucidity:
"Before 1935 there had stood for many years to the south of what is now called the Naulakha Bazaar, in the city of Lahore, a structure having three domes and five arches, which had been built as a mosque (masjid) and which retained, notwithstanding consi derable disrepair, sufficient of its original character to suggest, or even to proclaim, its original purpose. It had a projecting niche (mehrab) in the centre of the west wall such as is used in mosques as the place from which the imam leads the prayers. Its dedication is no longer in dispute, having been established as of the year A. H. 1134. or A.D. 1722, by the production and proof of a deed of dedication executed by one Falak Beg Khan. By this deed, Sheikh Din Mohammad and his descendants we re appointed muttawalis." The trust deed existed and was on record.
"No less well established than the dedication is the fact that from about A.D. 1762 the building, together with the courtyard, well and adjacent land, has been in the occupation and possession of Sikhs. The occupation of Lahore by the 'Bhangi Sardars' in 1762 was the commencement of Sikh power in this part of India. Sikh rule continued under Ranjit Singh, who in 1799 established himself by force of arms as the local ruler. It ended only in 1849, ten years after the death of Ranjit Singh, when the Punjab , as a result of the second Sikh War, became part of British India by annexation. At some time during the Sikh domination, land adjacent to the mosque building (but to the north of what is now the Naulakha Bazaar) became the site of a Sikh shrine (gurdwa ra), and the tomb of a Sikh leader, named Bhai Taru Singh, situated thereon was held in reverence. The land, which in 1722 had been dedicated to the purposes of a mosque, came to be held and occupied by the managers and custodians of the Sikh institution , and the mosque building was used by them.
"The land adjacent to the mosque was regarded by the Sikhs as a place of martyrs (Shahid Ganj), it being commonly held among them that Bhai Taru Singh had on this spot suffered for his religion at the hands of Muslim rulers, and that many others, including women and children, had been executed here. Thus communal feelings have long been in a state of tension as between Muslims and Sikhs with respect to this masjid Shahidganj."
A criminal case brought in 1950 by one Nur Ahmad, claiming to be muttawali, and proceedings in the Settlement Department, brought by him in 1853, came to nothing, as he had been long out of possession. A civil suit with a like object was brought a nd dismissed in 1853. On June 25, 1855, yet another suit by Nur Ahmad was brought in the court of the Deputy Commissioner, Lahore, against Sikhs in possession of the property; it was dismissed by that officer on November 14, 1855, by the Commissioner on April 9, 1856, and, on further appeal, by the Judicial Commissioner on June 17, 1856.
In Ayodhya there is a similar history of litigation in the 19th century in which Muslims won throughout (vide the writer's essay mentioned earlier, pp. 64-66). However, in none of them was there any claim to the Babri mosque but only to the Chabutra, the platform, outside it. Even that was negatived. Before the demolition of the mosque, Muslims were agreeable to a Ram temple coming up there by the side of the mosque. The Sangh Parivar would have none of it. Mumbai boasts of a traffic islan d which houses a temple, a church and a mosque, cheek by jowl.
In 1925, the Sikh Gurdwaras Act was enacted. On December 22, 1927, a notification was made under it listing the old mosque building and adjacent land as belonging to the Sikh Gurdwara "Shahid Ganj Bhai Taru Singh". Among other objections to this came one by the Anjuman Islamia of the Punjab on March 16, 1928. The Sikh Gurdwara Tribunal rejected all the claims on January 20, 1930. The Anjuman did not appeal. Other claimants did. The Lahore High Court dismissed the appeals on October 19, 1934.
The judgment records: "In the result the property and building were given into the custody of the defendants, and on the night of July 7, 1935 the building was suddenly demolished by or with the connivance of its Sikh custodians under the influence of co mmunal ill-feeling. Riots and disorder ensued, and much resentment was felt and expressed by the Muslims."
For the events of those times - and the injection of politics in the case - one must turn to K. L. Gauba's narrative "The Shahidganj Case" in his book Famous & Historic Trials (Lion Press; Lahore, 1946; pp. 77-118). For the Sikh view point, vide G anda Singh's History of Gurdwara Shahidganj; Lahore, 1935.
On July 2, 1935, shortly after Sikhs acquired legal possession, a deputation of Muslim leaders met Deputy Commissioner S. Partap who assured them that the mosque would not be demolished. The Civil & Military Gazette of July 3 published his press n ote: "The alleged demolition by the Sikhs of a portion of a very old mosque, within the precincts of Gurdwara Shahidganj in Landa Bazar has created a good deal of excitement among Muslims, many of whom collected outside the Gurdwara and made demonstratio ns. Fearing danger to the Gurdwara Jathas of Sikhs have started coming to Lahore from outside.
"Both the mosque and the gurdwara are perfectly safe and the authorities have taken all possible measures to protect them, pending a settlement of the dispute. Any attempt to rowdyism or hooliganism will be properly and effectively suppressed."
Sikh and Muslim leaders met on July 4 to hammer out an accord. "Muslims were represented by Maulana Zafar Ali Khan, Editor of the Zamindar, Syed Habib, Editor of the Siyasat, Maulana Daud Ghaznavi on behalf of the Ahrars and K.S. Amirud-Din , a local grandee. For the Sikhs attended Master Tara Singh, leader of his community, Sardar Ishar Singh Majhail, Giani Gurmukh Singh and Sardar Mangal Singh, member of the Central Legislative Assembly. The meeting was pursued (sic.) in a most cordial at mosphere and Muslims were asked to put their demands in writing to be forwarded to the Sikh leaders for consideration. The meeting terminated in a hopeful atmosphere. In the evening, Muslims met at the Barkat Ali Islamia Hall under the chairmanship of a Barrister, Mian Abdul Aziz, to formulate their demands. These were specified as the restoration of the mosque to the Muslims and a five-foot passage between the Gurdwara and the Mosque."
On July 6, the Governor of Punjab, Sir Herbert Emerson met Sikh and Muslim leaders. The government issued a press note denying rumours of demolition of "the walls of Shahidganj Mosque". There was none of the dishonest prevarication about "the disputed st ructure in Ayodhya" popularised by P.V. Narasimha Rao's government which has passed into official jargon. The press note appeared in the newspapers of Sunday, July 7. By the next morning the mosque was demolished. The Governor spoke with a forked tongue. "They (the Government) decided it was not possible to prevent the Sikhs from exercising their legal rights and that bloodshed be avoided by preventing Muslims from approaching the scene of demolition." Another communique said the "government deep ly regret that Sikhs should have thought fit to act in this precipitate manner, thus ruining all chances of a settlement and creating a very critical situation." On July 17, Emerson told the Legislative Council that Partap "did not promise that the build ing would not be demolished in any circumstances. He promised that he would prevent this until the Punjab Government had had time to examine the legal position. He carried out this promise."
Predictably, in the agitation that followed, many a Muslim politician tried to promote his career. A new outfit, Blue Shirts, was set up, led by Maulana Zafar Ali Khan. There were riots on July 20 and 21 in which the police opened fire, killing 12 Muslim s. A civil suit was filed on behalf of the mosque. Hearings began before the District Judge at Lahore, S. L. Sale, on October 30, 1935.
The demolition of the mosque was widely condemned. Sir Girja Shankar Bajpai wrote in disgust to Sir Fazl-i-Husain on July 29, 1935 in terms which proved prophetic. "It bodes ill for the future if one community thinks that the best way to assert its legal rights is to wound deeply the religious susceptibilities of another" (Waheed Ahmad (Ed.); Letters of Mian Fazl-i-Husain; Research Society of Pakistan, University of Punjab, Lahore, 1976; p. 420). Together, the Letters and the Diary and Notes o f Mian Fazl-i-Husain (Waheed Ahmad (Ed.); R.S.P., Lahore, 1977) reflect Fazl-i-Husain's deep disapproval of the tactics of extremist Muslim leaders and his efforts for a compromise. They bear on contemporary events.
A Diary entry of July 17, 1935 records (p. 150): "It seems to me that H.E. (the Governor) wanted some sort of settlement - the building will remain as an archaeological monument, and not put to any use by Sikhs, and Muslims will not claim it to serve as a mosque. This would have been status quo, and fair. The Muslims however pressed their claim or their request for the building to be used as a mosque, and the Sikhs pulled it down to put an end to the controversy. The Government, feeling possibly that th e building will not be pulled down, used its powers against Muslim crowds, and to strengthen the Sikhs, allowed their Jathas to come into Lahore. Sikh Jathas demonstrating in Lahore, and Muslims not allowed to have a procession, naturally created indigna tion in Muslim circles. Govt. is helping Sikhs to demolish mosque. Well, Sikhs actually demolished it, warned Govt. that they were doing it, and Government could not but protect them with the help of the Police and the Military. This was not playing the game, so far as the Muslim side is concerned, but the Government's explanation is that the Sikhs have acted unfairly."
July 19: "What should be done? Deal with Muslim defiance of law and bring it under control. If Sikhs want to build, do not allow it. If they resort to defiance of law, deal with it strongly; as in the case of Muslims. Then the two communities might settl e down as quits. It is very unlikely that the Sikhs would agree not to build on it, or in the alternative, out of spite put it to uses which will cause annoyance to Muslims."
Sir Fazl-i-Husain received a letter from a co-founder of his National Unionist Party, Sir Chhotu Ram, dated July 20, 1935 reporting a formula suggested at the Governor's Conference the previous day; "probably" by Dr. Gokal Chand Narang: "The question of ownership and possession of the Shahidganj having been finally decided by the court as being with Sikhs, the members present at this conference should recommend to their respective communities that as a solution of the present difficulty the site actuall y under the mosque should be surrounded by a wall or a fence and should not be built upon for all time. I am quoting from memory, but am not far from actual wording.
"Muslims put forward an amendment that the words 'or used for any purpose' should also be added. This was not acceptable to Sikhs. Another amendment which was under discussion when we broke up for lunch was that the final words should be: 'should be encl osed on all sides by a wall nine feet high'. The suggestion is obviously meant to secure the substance without fighting for words. The Raja (Narendra Nath) Sahib is of opinion that anything excluding use nullifies the rights of Sikhs under the decree" (e mphasis added, throughout).
In the last week of February 1936, Jinnah visited Lahore. Sir Fazl-i recorded on February 27: "Government of India seems to have accepted Jinnah's offer to help, and asked the Governor to co-operate with him. This is all to the good. This trouble stands in the way of the communities coming together, and we should all be grateful to Jinnah for making the effort, and if he succeeds, Punjab benefits from it.
Jinnah set up a conciliation board composed of representatives of all the communities. He was not out to exploit the crisis for political ends. Sir Fazl-i-Husain became impatient with Jinnah as an entry of March 8 reveals: "...the site should not be buil t upon, and... its use by the Sikhs guarded against. This was almost promised, and yet violated, if Jinnah is right. This is adding insult to injury and Jinnah still goes on talking of settlement honourable to both" (p. 204).
On June 13, 1936 Fazl-i-Husain wrote to the Governor expressing his opposition to any construction on the site of the demolished mosque (Letters; p.584).
By then, Muslims had lost the case. In a considered judgment, on May 25, 1936, S. L. Sale, District Judge at Lahore, dismissed the suit which Muslims had filed after the demolition.
(He had served on the Governor-General's Executive Council as well as as a Minister in the Punjab. He was in his time one of the most powerful politicians in the province. But for his untimely death in 1936 and that of his successor, Sir Sikandar Hyatt K han, in December 1942, Jinnah would have found it hard to carry the Muslims of Punjab, and there might have been no Pakistan).
The Government of India Act, 1935, which conferred autonomy on the Provinces, came into force on All Fool's Day, 1937. The Muslim League had fared miserably in the polls, winning only two seats - for Malik Barkat Ali and Raja Ghazanfar Ali Khan. The Unio nists, led by Sir Sikandar Hayat Khan, bagged 88 of the 175 seats. The Congress won only 18 seats as against 36 won by non-Congress Hindus and Sikhs. The separate communal electorates system was in force then.
Sir Sikandar formed a Unionist Coalition in April 1937 but only to conclude a pact with Jinnah in October. However, he became a Muslim Leaguer without affecting "the continuance of the present coalition and Unionist Party". On November 29, 1937 the High Court began hearing the appeal from the District Judge's judgment. Barkat Ali approached Jinnah, who was still in active practice in the Bombay High Court, to appear for the Muslims. "But he declined because he had been a conciliator between the contendi ng parties in February 1936 and did not want to be an advocate of one party" (M. Rafique Afzal; Malik Barkat Ali, His Life and Writings; R.S.P., Lahore, 1969; p. 44). On Jinnah's advice, F. J. Coltman, an English barrister practising in the Bombay High Court, was briefed. He joined Barkat Ali and Dr. M. Alam for the appellants. Rai Bahadur Badridas and Sardar Harnam Singh appeared for the SGPC. On January 26, 1938, the High Court dismissed the appeal (Masjid Shahid Ganj vs SGPC AIR 1938 La hore 369). Chief Justice Sir Douglas Young and Justice M. V. Bhide held in favour of Sikhs. Justice Din Mohammad pronounced in favour of Muslims in a lengthy and erudite judgment on Muslim Law. It was less an impartial pronouncement than a contribution t o the Muslim case. So much for "the judicial remedy". As the great jurist Benjamin N. Cardozo sagely remarked in his classic The Nature of the Judicial Process: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by" (Yale University Press; 1964; p.168).
The Muslim League's Annual Session in October 1937 had convened a special session of the Council on January 30, 1938. It decided to observe February 18 as Shahidganj Day. Mean-while, moves were afoot to resolve the issue by "legislation" - the remedy for Ayodhya advocated in the Bharatiya Janata Party's Palampur resolution of June 1989. Barkat Ali, an able lawyer, drafted the Punjab Muslim Mosques Protection Bill, 1938, in order to override the High Court's judgment and give legislative sanction to the principles of Muslim law propounded by Justice Din Mohammad. The maverick, K. L. Gauba, drafted a Bill which provided simply for the compulsory acquisition of the land under the Land Acquisition Act and vesting of the site in the government, deeming it a mosque "which shall be maintained as an open site" (Gauba; pp.108-110 for extracts from his Bill and the aftermath). Barkat Ali's Bill won greater support. His joy was shortlived.
On March 16, 1938, the Prime Minister of Punjab (as Chief Ministers were known then), Sir Sikandar Hayat Khan, made a statement in the Provincial Assembly which is of historic importance. It is highly relevant to the Sangh Parivar's policy before and aft er the demolition of the Babri mosque. Listing his objections to Barkat Ali's Bill, he pointed out that it would "involve reopening and retrospective reversal of cases settled by valid judicial pronouncements".
Moreover, "if non-Muslims claimed similar immunity for their places of worship in the Punjab which had passed out of their hands into Muslim possession, it would be illogical to resist such a request". He drew the point home with rigorous logic:
"If the Governor were to give his sanction for the introduction of such a bill in the Punjab, with the consent of his Ministry, it would provoke similar bills, in those provinces, where the non-Muslims are in a majority, for the restoration of many histo ric and important places of worship originally belonging to non-Muslims but now in Muslim possession, and, in the light of the precedent set in the Punjab, it would be impossible for Muslims logically to invoke protection against such bills under the Gov ernment of India Act...
"Its only practical effects would be to increase bitterness and remove for all time the prospect of an amicable settlement and to align parties in the legislature and in the province on rigid communal lines, a prospect which no well-wisher of the province can contemplate without despair...
"The Government has under consideration means to ensure the due protection of all places of worship so that a repetition of incidents like Shahidganj may be impossible in future. To this end it is proposed to appoint a small informal committee of the mem bers for this House to advise the Government with regard to proposals for legislation" (vide Gauba, pp. 111-115). Apparently, something on the line of the Places of Worship (Special Provisions) Act, 1991.
Five days later, on March 21, the Muslim League's Council endorsed this statement. At its special session in Calcutta on April 17-18, 1938, Jinnah said that "certain individuals on both sides were and have been aggressive to each other, and they h ave created a situation which has involved the two great communities into the position of an impasse. I deplore the excesses committed on both sides..." (S. S. Pirzada; Foundations of Pakistan, National Publishing House, Karachi, 1970) Vol. II, p. 291. It is a compilation of the League's resolutions; vide Resolution II on Shahidganj, p. 296).
On May 2, 1940, the Privy Council brought the curtain down on the litigation by dismissing the appeal. By then the SGPC had secured in August 1935 the municipality's sanction for construction of a gurdwara on the site of the mosque.
The issues raised by the Privy Council are highly relevant to Ayodhya.
"The first question to be asked with reference to this immovable property is: In whom was the title at the date when the sovereignty of this part of India passed to the British in 1849? It may have been open to the British, on the ground of conquest or o therwise, to annual rights of private property at the time of annexation, as, indeed, they did in Oudh after 1857. But nothing of the sort was done so far as regards the property now in dispute. There is nothing in the Punjab Laws Act, or in any other Ac t, authorising the British Indian Courts to uproot titles acquired prior to the annexation by applying to them a law which did not then obtain as the law of the land. There is every presumption in favour of the proposition that a change of sovereignty would not affect private rights to property. Who, then, immediately prior to the British annexation was the local sovereign of Lahore? What law was applicable in that State to the present case? Who was recognised by the local sovereign or other auth ority as owner of the property now in dispute?...
"If it be assumed, for example, that the property in dispute was by general law, or by special decree or by revenue-free (muafi) grant, vested in the Sikh rulers, the case made by the plaintiffs becomes irrelevant...
"The rules of limitation which apply to a suit are the rules in force at the date of institution of the suit, limitation being a matter of procedure. It cannot be doubted that the Indian Limitation Act of 1908 applies to immovables made waqf, notwithstan ding that the ownership in such property is said in accordance with the doctrine of the two disciples to be in God... The property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than twelve y ears, the right of the muttawali to possession for the purpose of the waqf came to an end under Art. 144 of the Limitation Act, and the title derived under the dedication from the settlor or wakf became extinct under S. 28."
Justice Bhide rightly said that the law of limitation does not distinguish between property sacred and other. Yet faced with precisely that law, the Sangh Parivar demolished the Babri mosque. In Pakistan, the law laid down by the Privy Council on May 2, 1940 is still respected.
The last word must belong to the distinguished educationist Dr. Amrik Singh: "The interesting thing is that even after 1947, when there is hardly anyone to visit the gurdwara, the character of that building has not been changed and it has not been conver ted into a mosque. If this can happen in Pakistan, which according to its constitution is described as an Islamic state, can India, which describes itself as a secular state, act differently? How does one deal with an issue when faith is put forward as t he governing principle in place of reason? If that contention were to be accepted, it would be the end of civilised governance."
These remarks were made before the demolition of the Babri Masjid. They apply with yet greater force to the future of its site. So do Amrik Singh's censures of the Parivar's conduct on December 6, 1992.
