RSS’ endgame in Ayodhya

There is no legal route for the present dispensation to use an ordinance to build a Ram temple, but the Sangh Parivar looks set to resort to legal thuggery with elections to several State Assemblies round the corner and general elections due in 2019.

Published : Nov 21, 2018 12:30 IST

Chief Minister Yogi Adityanath at a Dussehra function in Gorakhpur, where he addressed a gathering of supporters, including sadhus. He asked his supporters to prepare for a Ram temple in Ayodhya.

Chief Minister Yogi Adityanath at a Dussehra function in Gorakhpur, where he addressed a gathering of supporters, including sadhus. He asked his supporters to prepare for a Ram temple in Ayodhya.

“I VISITED Ayodhya on 29 December 1992, in connection with the proposed acquisition of land and to review the law and order arrangements in the light of the earlier decision to permit darshan . Unlike other visitors from Delhi in the past who took darshan at the Ram Lalla temple and offered pooja there, I did not do so, nor did I accept any prasad . Though a devout person myself, I believe that one’s religion is a personal matter. In any case, I had enough of Ayodhya and sincerely believed that God could not reside in that temple, the construction of which was associated with so much deceit and wanton violence” (Madhav Godbole, Unfinished Innings , page 406).

The skulduggery at work on Ayodhya by the Narendra Modi government was made all too clear by “a top government functionary” who spoke to Hindustan Times recently. A report published on its web edition on November 5 said that he “reaffirmed the government’s commitment to a Ram temple at Ayodhya a week after the Supreme Court deferred the hearing of the Babri Masjid-Ram Janmabhoomi case to January, provoking calls for a law or an ordinance from Hindu groups to facilitate the building of a temple at the disputed site.

“Just as the courts are authorised to rule on a matter of dispute, the government of the day can change the premise on which a judgment is based to render it null and void, the senior government functionary said on Monday [November 5], responding to questions on whether a law or an ordinance for construction of a Ram temple in Ayodhya is possible before the next parliamentary election.

“The functionary, who didn’t want to be named, said he was making the remarks independent of the temple issue, and just to explain the limits to which the judiciary and the executive can go. However, he said, a Ram temple will indeed be built at Ayodhya. ‘A temple already exists there (at the disputed sited in Ayodhya),’ he said. ‘We only have to make it grand.’

“Talk of the government considering an ordinance or a Bill to construct a temple in Ayodhya in the remainder of Parliament’s term gained momentum after the Rashtriya Swayamsewak Sangh (RSS)—ideological mentor of the ruling Bharatiya Janata Party (BJP)—demanded a law to build Ram temple and threatened a 1992-like campaign for its construction.” This is the threat.

It is a measure of the desperation that this “functionary” should cite a principle of law that is not at all relevant; namely, that the legislature is not competent to nullify the judgment of a court of law. But it can retrospectively amend the law on which the judgment was based (Cauvery Waters Disputes Tribunal re (1993) Supp (1) SCC 96). Which law of Parliament does the Modi government propose to amend to fulfil its nefarious ends? As will be pointed out, the law in question will be of no avail. At stake is the ideal of secularism which the Supreme Court has ruled repeatedly is an integral part of the unamenable “basic structure” of the Constitution. Even unanimous votes of both Houses of Parliament will not help.

That “functionary’s” revelation comes in the wake of a sustained raising of the pitch ever since the Supreme Court adjourned the case on October 29. If this be the RSS’ fury on an adjournment, how will it react to an adverse ruling? The clamour gets more shrill by the day in an orchestrated manner. Repeated references to and threats of a 1992-style movement are ominous. In 1992, we had a pro-RSS Prime Minister, P.V. Narasimha Rao, and a Chief Justice of India (CJI) in open sympathy with the kar sevaks, M.N. Venkatachaliah. Now we have an RSS pracharak as India’s Prime Minister, but fortunately, an upright judge as the CJI, Justice Ranjan Gogoi.

The campaign is geared to the forthcoming elections of the Assemblies of Madhya Pradesh, Rajasthan, Telangana, Chhattisgarh and Mizoram. The fate of the RSS’ political department, called the Bharatiya Janata Party, in the 2019 elections to the Lok Sabha and its pracharak’s tenancy of the Prime Minister’s Office in South Block in New Delhi depend on that.

Sanjay Basak of The Asian Age described the plot (November 5). “It is also believed that the beginning of the construction of the Ram Mandir through an ordinance would give the BJP a ‘huge boost’ and yet again consolidate the party’s core vote bank for the forthcoming Lok Sabha elections. ‘We don’t need to focus on anything else, but only consolidate our own vote bank... that would comfortably see us through,’ a senior BJP leader told this newspaper. It was further claimed that once the ‘green signal is given’, the construction would begin and within a span of six weeks, the ‘kar sevaks could put up a temporary structure at the site’. It was further claimed that ‘everything is ready, the pillars, tiles, windows and doors, and all that is required to build the magnificent temple is ready and could be put in place with speed’.

“‘The speed to begin the construction and put a temporary structure’ is essential as ordinances remain in force for six weeks (once Parliament is in session), after which they need to be approved by both Houses in order to remain a law. The President of India can promulgate an ordinance on the advice of the Union Cabinet only when Parliament is not in session.”

BJP president Amit Shah went to the RSS’ headquarters in Nagpur to coordinate the strategy. RSS general secretary Suresh alias Bhayyaji Joshi said: “The Ram temple is the collective wish of all people—the sentiment should have been considered (by the Supreme Court) before postponing the matter....” He added that the RSS had been expecting the Supreme Court to decide the case by Deepavali. He reiterated the RSS’ demand that the government should legislate a law or promulgate an ordinance to pave the way for constructing the temple. He called the adjournment an “insult” to Hindus. How will the RSS and the BJP react to an adverse verdict?

This betrays an imperious mindset. Even if the Supreme Court had begun hearings on October 29, it could not possibly have concluded them by November 7, let alone write the judgments. Sants, seers and sadhus are being enlisted in this campaign. In retrospect, it becomes clear that Yogi Adityanath was planted as the Chief Minister of Uttar Pradesh to facilitate the game.

The RSS is more confident in 2018 than it was in 1992. A BJP leader and RSS activist who had participated in the 1992 Rath Yatra said on November 3: “The situation has changed drastically in the last 28 years. The BJP won a record 282 seats [in the Lok Sabha] with 31 per cent vote share in 2014 compared with 120 seats with a mere 20.04 per cent [of the votes] in 1991, when the Congress was in power. In Uttar Pradesh, the party is in power by winning a record 325 seats with 39.7 per cent vote share compared with 221 seats in 1991.” He said that Chief Minister Yogi Adityanath was in the driver’s seat and had local and the Centre’s support.

Currently, RSS activities are held in 95 per cent of the country’s geographical mass. “The presence of RSS soared by 30 per cent after Narendra Modi became the PM. The RSS shakhas have increased to 58,976 as on date against 29,000 in 1990. About 8 lakh sevaks attend these shakhas daily” ( DNA , November 4).

This is the game: Promulgate an Ordinance no matter how illegal it might be—litigation or its legality would take time; delay the convening of Parliament; and use the six weeks to build a temple no matter how rudimentary. The plan is obvious. It would be open to the Supreme Court to stay the operation of such an Ordinance promulgated mala fide and unconstitutionally.

As the Chairman of the Constituent Assembly’s Drafting Committee, Dr B.R. Ambedkar said authoritatively that the ordinance-making power is meant to be used “to deal with a situation which may suddenly and immediately arise” (Constituent Assembly Debates, Volume 8, page 213). The ordinance is certain to be struck down after a hearing and its operation stayed at the very outset.

Land acquisition

The governing law is the Acquisition of Certain Area at Ayodhya Act, 1993. Its validity was considered by the Supreme Court in Ismail Faruqui vs Union of India (1996) 4 SCC 360. The five judges split on communal lines. CJI Venkatachaliah, Justice G.N. Ray and Justice J.S. Verma, who delivered the judgment for them, upheld the Act except for one provision, which would have wiped out the cases filed by the Muslims. Justices A.M. Ahmadi and S.P. Bharucha struck down the entire Act as void, in a judgment delivered by the latter. All five agreed in declining to answer the President’s query for an advisory opinion on whether a temple had existed earlier before the Babri Masjid was built in 1528. This, nonetheless, is the very question that two of the three judges of the Allahabad High Court decided in reliance on mythology and faith, not law.

Justice Verma’s judgment on behalf of the majority is clear. The Act vests the land in the Central government but only to make it “a statutory receiver”. It is charged with a duty to administer it “maintaining the status quo therein till the final outcome of the adjudication of the long standing dispute”. It cannot deal with the land otherwise. Any amendment of the Act to enable it to do so will also be void. It will render the judicial process infructuous. Grant of the land to one of the parties to the dispute would offend the unamenable basic structure of the Constitution (paragraph 5, page 411). This is repeated on page 419, paragraph 87. The user of the land cannot be changed “till final adjudication of the dispute and consequent transfer of the disputed area to the party found entitled to the same”.

The Centre’s acquisition of the “disputed area” was not intended to give it a free hand to deal with it as it pleases, least of all to give it to one side in the dispute. It cannot be disposed of except in accordance with a final judicial ruling by the Supreme Court.

Justice Verma repeated emphatically: “The vesting of the said disputed area in the Central Government by virtue of Section 3 of the Act is limited, as a statutory receiver, with the duty for its management and administration according to Section 7 requiring maintenance of status quo therein under Sub-section (2) of Section 7 of the Act. The duty of the Central Government as the statutory receiver is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed area has been so acquired” (page 423, paragraph 4 of his final conclusions).

Justice Bharucha’s remarks are very relevant now. “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” (page 438, paragraph 140).

He added: “Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it.” Well said, indeed. Sadly, there were CJIs from Venkatachaliah, to go no further, to Dipak Misra who thought otherwise.

On one point all the three judges of the Lucknow Bench of the Allahabad High Court—Justices D.V. Sharma, Sudhir Agarwal and S.U. Khan—were in remarkable and laudable agreement: the idols of Ram were placed inside the mosque on the night of December 22-23, 1949. The RSS’ 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. All three lied. The High Court has confirmed a truth which was known to all and also confirmed the Parivar’s contempt for the truth. Is this truth, accepted by all the three judges, devoid of legal consequences?

Former Chief Justice of India J.S. Verma has categorically stated that the 1994 Supreme Court orders on the acquisition of land in Ayodhya specifically forbade the handing over of any part of the 67 acres of acquired land to any party before the final settlement of the main Ayodhya title suit. It was Justice Verma who gave the majority judgment in 1994. Recently, talking to a television channel, he regretted that the order was being misinterpreted and distorted. “The entire area acquired by the law is vested in the Central government and cannot be handed over to anyone before the title suit (the main dispute over the Babri Masid and Ram Janmabhoomi) is settled” (The Hindu, February 17, 2003).


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