Far removed from secular universe'

Interview with Anupam Gupta, who was counsel for the Liberhan Commission of Inquiry.

ANUPAM GUPTA was counsel for the Liberhan Commission of Inquiry, which was set up to bring out the truth behind the demolition of the Babri Masjid in December 1992. He quit the commission before it submitted its report last year following differences with its Chairman, Justice Manmohan Singh Liberhan, over the contents of the report.

An advocate with several years of practice behind him at the Punjab and Haryana High Court and the Supreme Court, Anupam Gupta's searching questions left many of the protagonists of the Ayodhya movement groping for replies during his cross-examination of top leaders on behalf of the commission. He was its counsel for 10 years.

He is one of the few legal experts who have read and compared the full texts of the three separate judgments given by Justices Sudhir Agarwal (5,098 pages), S.U. Khan (285 pages) and Dharam Veer Sharma (1,181 pages) of the Lucknow Bench of the Allahabad High Court on September 30 in the Ayodhya title suits. In this interview to Frontline, he shares his views about the judgments and explains, for the benefit of readers, some of the legal conundrums underlying them. Excerpts:

How will you characterise the three judgments?

The nation has been preoccupied with the ultimate relief granted. National attention has been completely distracted from the essential premises of the full Bench. I am convinced that both Justices Agarwal and Sharma operate in a time warp of their own far removed from and completely insulated from the secular universe of free India.

Justice Sharma speaks candidly as a Hindu devotee and much of what he has said on various issues carries a grim echo and reflection of the main arguments and grievances of leading protagonists of the Ayodhya movement before the Liberhan Commission. Take for instance an issue framed in the suits whether the structure called Babri Masjid can be actually called a mosque or not. While Justice Agarwal, to be fair to him, holds back on this issue and rules that whatever be the causes of the construction of this mosque, and the anomalies between this and other mosques (it does not have a minaret, etc), he believes it is futile to go into these and that it has to be treated as a mosque.

Justice Sharma, on the other hand, goes into minute aspects and holds that it is not a mosque constructed according to the Muslim tenets and, in fact, is not a mosque at all. The near-identity of this argument with that of the leading militant members of the Sangh Parivar before the Liberhan Commission is striking. The question then was: if it was not a mosque at all, why did they oppose it, launch a movement against it and bring it down?

There is a very simplistic absurdity about this entire argument. It is open for people to believe that Ram was born here, to believe that the mosque was constructed after demolishing a temple consecrated to Ram, to hate this as the insignia of slavery to the foreign oppressor. However, it is fundamentally inconsistent to say in the same breath that it is not a mosque at all. The entire debate centres on the fact that it is a masjid. Otherwise, it makes no sense.

In Justice Sharma's judgment, there is so much of deja vu hitting me unsophisticated, unabashed, unalloyed, unreasoning fundamentalist Hindu perspective.

The author of the leading judgment is Justice Agarwal. His is a monumental feat in judgment-writing: fairly controlled, self-contained, lucid and coherent throughout the 21 volumes. Having said that, I have no doubt in my mind that he is as firmly rooted in the universe of stern orthodox Hinduism as Justice Sharma.

Justice Khan differs radically from the other two judges in the essential postulates of his judgment. However, at the end of it all (page 275 of his judgment), he observes that in the matter of actual partition, it is desirable but not necessary to allot to a party property in his exclusive use and occupation. Even though he finds that Muslims had possession of the domes and Hindus only of the chabutra outside, he allots the central dome to Hindus rather than to Muslims. He justifies this by citing Charles Darwin as saying that only those species survive that collaborate and improvise. In other words, the judge being a member of a minority community must collaborate with the majoritarian sentiment in order to survive. The improvisation effected by him is an inversion of architecture and geography, the reversal of the basic principle of partition.

Darwin does not support majoritarianism at all. A new biography on Darwin published last year [ Darwin's Sacred Cause: How a Hatred of Slavery Shaped Darwin's Views on Human Evolution by Adrian Desmond and James Moore] reveals how deeply he and his entire family were committed to the abolition of slavery and racialism.

Do you think it would have been impossible for the court to go into the historical question whether there was a Ram temple beneath the demolished Babri mosque or whether Ram was born at the spot where the makeshift temple now stands?

Yes and no. To be fair to the court, it cannot be blamed if the parties join issue or enter contest on a particular point. The court is not to be blamed for that. However, the court has every option, a vast range of judicial discretion, on how it should address and answer the issue. With both sides wrestling over history, the court could have returned a finding that it is virtually impossible to answer this one way or the other.

My last question to the last witness before the Liberhan Commission, former Uttar Pradesh Chief Minister Kalyan Singh, related to the ASI report. Kalyan Singh placed before the commission the last chapter of the ASI's report in support of his stand on the Ram temple. Between the body of the report and the last chapter there is a fundamental difference. The last chapter is a quantum jump from the earlier narrative chapters. Conclusions, glibly and facilely drawn about a massive structure, bearing the imprint of a Hindu temple beneath the tomb beg the entire question. The concluding inferences drawn by the ASI were custom-made to suit the Ayodhya strategy of the then Bharatiya Janata Party government. The political misuse of archaeology as a scientific discipline is fraught with serious implications.

Justice Agarwal displays a strong intellectual and emotional bias against the progressive, left-leaning academics in the discipline of history and archaeology and accuses them in so many words of being communists or Marxists, as if being so is a crime in itself.

Whether even the Supreme Court can deal competently with matters of history or archaeology will remain a question mark. However, when an issue arises before the court, the court cannot refrain from resolving it. But it should do so with intellectual humility. This is missing in Justice Agarwal's appraisal of the objections to the ASI report. Suraj Bhan, D. Mandal and other scholars who testified against the report are all reduced to a communist or Marxist cabal hired by the Muslim side in order to prove their case. He surrenders judicial objectivity to ideological bias.

How did the court come to understand the issue before it in terms of faith or belief?

Actually, issue No.11 in the leading suit No.4 reads thus: Is the property in suit the site of Janambhumi of Sri Ramchandraji?

Obviously, this was a question of historical fact. However, according to Justice Agarwal, this issue required the discharge of an impossible task and had necessarily to be treated as follows: Is the property in dispute the site of birth of Shri Ramchandarji according to traditions, belief and faith of Hindus in general? This is how he recast the issue while answering it in his judgment, transforming the issue beyond recognition. This is possibly the most fateful part of the judgment.

Were the judges correct in the way they dealt with Deoki Nandan Agarwal's suit on behalf of the deity (suit filed in 1989)?

The concept of idol becoming a litigant is borrowed from Roman law. Keeping the larger interests of the believing public in mind, it was considered necessary historically to endow the deity with a fictitious legal personality so that the maintenance and preservation of properties dedicated to the god is facilitated.

There is no doubt that the Hindu idol or deity has a legal or juristic personality. To that extent, the judges are right. But they proceed further to hold that not only the idol but even the place where it is kept is a juristic personality and has a legal persona of its own. There is absolutely no justification in principle or in judicial precedent for this complete novelty. Nothing illustrates the deep and pervasive religiosity underlying the judgment of both Justices Agarwal and Sharma than this finding.

How did the judges declare the Sunni Wakf Board's suit filed in 1961 as time-barred? How did they justify that Ram Lalla's suit, filed in 1989 through his next friend (Deoki Nandan), was not time-barred?

The concept of limitation is one of the great technicalities of jurisprudence. Even though someone's right has been infringed upon, he is denied a judicial remedy if he approaches the court beyond the period prescribed under the Limitation Act. This is because the law discourages stale claims and refuses to protect those who are not vigilant enough about the violation of their rights.

So far as the 1989 suit is concerned, Justice Agarwal (in para 2,617) expresses his difficulty in understanding the cause of action for filing it. Again, in para 2,630, he holds that there is no substantial threat necessitating the filing of the suit by Ram Lalla and, therefore, the right to sue does not accrue to it. Reading both these observations together, which are a tribute to his professional competence, it is apparent that the 1989 suit disclosed no cause of action. That being so, the suit was liable to be rejected summarily under Order 7 Rule 11 of the Code of Civil Procedure.

However, the irony is that Justice Agarwal uses this not to reject the suit but to reject the Muslim objection that the suit is time-barred. According to him, the limitation for a suit for declaration (under Article 58 of the Limitation Act) has to involve a violation of a right, which gives rise to a right to sue. Since no right was violated in the 1989 suit he held that limitation did not begin to run against the plaintiff.

The paradox in this finding is that it displaces the suit altogether. Logically speaking, such a finding should entail the summary rejection of the suit itself for failure to disclose a cause of action.

Justices Agarwal and Sharma also accept while Justice Khan holds to the contrary the concept of perpetual minority of a Hindu idol. Section 6 of the Limitation Act provides an exemption from the normal running of limitation. It covers persons under legal disability, namely, minors, insane persons and idiots. They, therefore, treat the Ram idol as a perpetual minor in order to save the 1989 suit filed by the next friend of the deity.

This question was first raised in 1926 before a Division Bench of the Allahabad High Court in Chitar Mal vs Panchu Lal (AIR 1926 All 392). The court ruled against any such doctrine of perpetual minority of an idol. Justice Khan cites from the book The Hindu Law of Religious and Charitable Trusts by Justice B.K. Mukherjee a renowned authority, cited also by Justices Agarwal and Sharma to support their other conclusions that the analogy between a Hindu idol and a minor is not only incorrect but positively misleading.

WAKF BOARD'S SUIT

As far as the suit filed by the Sunni Central Wakf Board is concerned, the claim for possession in this suit was in fact the only true and proper relief to be sought. The claim for declaration was a relief in aid of the main remedy of dispossession. The Muslim cause of action was their dispossession by Hindus in December 1949 when the idols were implanted in the masjid. A suit for possession is maintainable within 12 years of the dispossession under the Limitation Act. Justice Agarwal holds that just because the idols were placed Muslims were not completely dispossessed.

Therefore, according to him, the provision in the Act dealing with suits for possession does not operate, as that requires complete dispossession.

This finding, on the face of it, is untrue and unfair. Following the installation of the idols in December 1949, Muslims lost access to the Babri Masjid. In what sense, therefore, did possession remain with Muslims after December 1949?

The other reason why the suit was held time-barred is that it has been treated to be a suit for mere declaration, ignoring the claim for possession. The limitation for declaration was six years under the old Limitation Act then applicable. Muslims wanted a declaration that the site in question was the Babri Masjid and Hindus had no right to it. The judges have relied upon the attachment of the disputed premises by the magistrate under Section 145-146 of the Criminal Procedure Code to ignore the claim for possession. They hold that when a property is under attachment it is deemed to be in legal custody and no suit for possession is required; only a suit for declaration is sufficient. All the three judges agreed on this point.

In my view, the question of possession in this case is a much larger issue and cannot be limited to the narrow confines of Sections 145-146 Cr.P.C., which deal with ordinary disputes. To view the dispossession of Muslims in December 1949 only on the premise of attachment is too limited a perspective.

These judgments also dismiss the legal challenge to the District Judge's 1986 order unlocking the Babri Masjid. Considering that opening the locks of the Masjid before the settlement of the title dispute paved the way for its demolition in 1992, should the court have ignored the illegality of this order?

The great merit of Justice Khan's judgment is how he demonstrates that the 1986 order for opening the locks was both politically and judicially mala fide. In his separate nine-page order, Justice Sharma strongly affirms the 1986 order, holding that Hindus were already in possession of the site since 1950, and that the structure had already been demolished and the order only maintained the control of Hindus. He thus legitimises the illegality of both December 1949 and December 1992.

Justice Agarwal refrains from expressing any opinion on this matter since the main suit itself had been decided, the 1986 order being an interim order that could not outlive the final decision. His is an example of discretion being the better part of valour.

What are the limits of Article 25? Can the argument of essential aspects of religion be stretched to include beliefs under Article 25, which guarantees the right to profess and practise religion freely?

There are two aspects of this matter. Article 25 is not an absolute right but a highly qualified right. It has been made expressly subject not only to public order, morality and health, but also to other provisions of Part III of the Constitution. In other words, the right under Article 25 has to be reconciled with all other fundamental rights. Article 25 is not an island of immunity, in the name of religion, but has to be reconciled with the other fundamental rights guaranteed by the Constitution. Secondly, it confers the right to freedom of religion equally on all religions.

To limit Article 25 to Hindus is to subvert its essential character and defeat its very purpose. Muslims, equally with Hindus, are entitled to Article 25. The provision cannot be invoked to transplant or impose the beliefs and practices of one religion upon the adherents of another.