The ban will stay

The Supreme Court order reiterating the ban on religious activity in the acquired area has enabled the BJP to play it safe on the temple issue.

ON March 31 the Supreme Court rejected the Central government's appeal to lift the ban on religious activity in the acquired area around the disputed site in Ayodhya. This order had the effect of throwing cold water on the Bharatiya Janata Party's attempts to appease the Vishwa Hindu Parishad (VHP) by transferring a part of the acquired 67.703 acres around the disputed site.

The court rejected the Centre's contention that the ban order passed in March last year had become infructuous since the ground reality had changed since then, and ordered that the "status quo" be maintained until the final adjudication of the title suit pending before the Allahabad High Court.

A five-Judge Constitution Bench, headed by Justice S. Rajendra Babu and comprising Justices S.S.M. Quadri, M.B. Shah, N. Santosh Hegde and Doraiswamy Raju, made it clear "that the order made by this court on 13.3.2002, as modified by the order made on 14.3.2002, should be operative until disposal of the suits in the High Court of Allahabad not only to maintain communal harmony, but also to fulfil the other objectives of the Act (Acquisition of Certain Areas in Ayodhya Act, 1993)".

The Bench disagreed with the Centre's contention that the order passed last year was beyond the scope of the 1994 judgment. It said that the preamble to the 1993 Act itself disclosed that the objective of the enactment was the maintenance of public order and harmony between different communities in the country. "If the acquisition has been effected on that basis not only of the disputed land but also of the adjacent land, this thread will run through the entire proceedings and we must bear in mind that when the dispute is not yet finally resolved, maintenance of communal harmony and peace is absolutely needed," the court observed.

The court also said: "It is no doubt true that when passions run high, demands are made for several types of activities being carried on in the adjacent land. If any such activities are carried on in such land even before the resolution of the dispute pending before the court it may affect the harmony and tranquillity that has prevailed for so long.''

The Bench rejected the Centre's contention that under the 1993 Act it was vested with powers to transfer its rights, title and interest on the acquired land to any trust or body by imposing conditions. Quoting the 1994 judgment in the M. Ismail Faruqui case, the Bench said: "It is clear that the adjacent land, though vest in the Central government, will have to be utilised in different manners depending upon the outcome of the litigation in respect of the disputed property. Thus the manner or extent to which the adjacent land could be used would depend upon the final outcome of the pending dispute in the High Court. The acquisition of larger extent of land is incidental to the main purpose. Thus the two acquired lands are intrinsically connected with one another and cannot be separated at this stage of the proceedings for different treatment during the interregnum."

The Bench noted that if the land was transferred to any other body or trust at this stage, as pleaded by the Centre, further complications might arise. "Therefore, status quo will have to be maintained until the suits are finally disposed of. We hold that the order of this court made earlier is not beyond the scope of the decision in the M. Ismail Faruqui case," the court noted.

The Judges also pointed out that the status quo had been maintained in Ayodhya from 1992 onwards and no activities as were set out in the course of the application had been required to be done so far. "When for a long time a particular state of affairs has prevailed - as in the present case for over a decade - and when the adjudication of the disputes which are pending before the High Court are reaching the final stages, it will not be appropriate to disturb that state of affairs," the Bench said. "It is well known that preservation of property in its original condition is absolutely necessary to give appropriate reliefs to the parties on the termination of the proceedings before the courts and, therefore, we do not think that this is one of those cases in which it becomes necessary to disturb that state."

The Bench disposed of the writ petition filed by Mohammed Aslam Bhure, who had sought a ban on religious activity in the acquired area in March last year when the VHP wanted to organise a shila daan programme in the vicinity of the makeshift temple at the disputed site.

The Centre, in its application in the apex court on February 4, had sought the lifting of the ban on religious activity in the undisputed area because the "continued state of uncertainty (regarding the undisputed land) is not in public interest". It pointed out that the apex court's interim order passed in March last year was only for 10 weeks after which the issue had to be referred to a larger Bench.

"The state of uncertainty with regard to approximately 67 acres of land is likely to generate problems even in future and it is therefore necessary that the position becomes clear by a final decision of the court," the application said.

The ban on religious activity in the acquired area came after the Centre was seen to be buckling under pressure from the VHP to hand over a portion of the area to it for conducting religious activity. The issue came to a head in March last year when the VHP insisted on holding the shila daan, which would have marked the beginning of the temple construction of a temple at the disputed site.

In January last year, apparently under pressure from the VHP, Prime Minister Atal Behari Vajpayee asked Law Minister Arun Jaitley to look into: (a) How the case relating to the disputed land in Ayodhya can be expedited, and (b) The legal and constitutional aspects of handing over the undisputed land to the Ramjanambhoomi Nyas.

Though nothing was heard about it thereafter, when the date set by the VHP for the shila daan neared and the matter came up for consideration in the Supreme Court, the government appeared to be acting under pressure from the VHP yet again. It was then that Aslam Bhure and others filed the petition requesting the apex court to ban all religious activity in the acquired area and hand over the land to the Army for maintenance. On the Centre's behalf the then Attorney-General Soli Sorabjee told the court that there would be no violation of the "status quo" order by the temporary use of the undisputed adjacent land for the performance of a symbolic puja. He argued that the status quo pertained only to the "disputed land" and pleaded that a symbolic puja, with 300-400 sadhus participating and kar sevaks watching from a distance, would not per se violate the "status quo order" of the court.

The order by the three-Judge Bench, comprising Justices B.N. Kirpal, G.B. Pattanaik and V.N. Khare, was categorical in its content. It said: "We direct that on 67.703 acres of land located on plot no.159/60 in village Ramchandrapuram vested in the Central government, no religious activity of any nature by anyone, including bhumi puja, shila puja and shila daan, shall be allowed till further orders." The very next day the Supreme Court clarified that the status quo ordered by it at the acquired site covered all the land vested with the Central government and not just the two revenue plots mentioned in the order. The clarification came after VHP leader Ashok Singhal said the order covered only the two plots mentioned, whereas the acquired land encompassed over 100 revenue plots, and hence the VHP was free to go ahead with its shila daan elsewhere on the acquired land.

The court's modified order said: "In the meantime, we direct that on this 67.703 acres of land located in revenue plot Nos 159 and 160 in village Kot Ramchandra, as well as and including the land described in the schedule to the Acquisition of Certain Areas at Ayodhya Act, 1993 (Act No 33/1993), which is vested in the Central government, no religious activity of any kind by anyone, either symbolic or actual, including bhumi puja or shila puja shall be permitted or allowed to take place." It was this ban order of the court that the Centre wanted vacated in its application on February 4 so as to enable it to hand over a part of the land to the VHP for conducting religious activities.

WHILE the BJP said that it was only trying to find an expeditious settlement of the Ayodhya dispute and that it would abide by the apex court order, the VHP warned of "direct action" and said it would launch a movement to demand the handing over of the entire 67 acres for the construction of a Ram temple.

The RSS, which expressed its "disappointment" with the court verdict, suggested that the only way to resolve the issue now was through legislation. Although Arun Jaitley said the government would be obliged to ensure the status quo in the acquired land, senior BJP leaders said the government was weighing its options, including a revision petition, a review petition, and an ordinance to hand over the undisputed land to a VHP-controlled trust.

But this would depend on the outcome of the Assembly elections in four States scheduled to be held later this year. In case the BJP fared poorly, senior BJP leaders said, the party would have no option but to fall back on the temple issue as its main election plank ahead of the general elections. According to them, the BJP may try to bring forward legislation next year to facilitate the construction of the temple and if it fails, it could resign and make that its main election plank.

The Opposition parties have welcomed the Supreme Court ruling as a vindication of their stand for maintaining the status quo. "It also vindicates what we have been saying all along," said Congress spokesman Abhishek Singhvi. The Communist Party of India (Marxist) Polit Bureau said: "It is the responsibility of the government to control and contain forces such as the VHP and the Bajrang Dal, who are brazenly talking in terms of violating the court order." The CPI said the unanimous judgment was significant in the context of the "offensive" of the Sangh Parivar, particularly the VHP, and the "dubious stand" of the Vajpayee government. The All India Forward Bloc said the verdict was a "victory of the secular tradition of our country".

Even several allies of the BJP in the National Democratic Alliance government welcomed the court order. Shambhu Shrivastva, general secretary of the Samata Party, said the government should ensure that the status quo was respected by all concerned.

Syed Shahabuddin, member of All India Muslim Personal Law Board, demanded that the government direct the Sangh Parivar and the VHP to stop their agitation and commit themselves to accepting the final judicial verdict. The All India Muslim Personal Law Board said the judgment had vindicated its stand that the status quo should be maintained until the final adjudication of the title suits by the Allahabad High Court.

Significantly, the BJP did not get support from the Bahujan Samaj Party, its ally in government in Uttar Pradesh. Chief Minister Mayawati said her government would follow the direction of the Supreme Court in letter and in spirit and nobody would be allowed to take the law into his or her own hands. She said the State would take all steps to enforce the court direction and that the rule of law would prevail. She assured the minorities that their places of worship were safe. "I am determined to live up to my commitments made to the minorities that they should not fear anyone in my regime. This is not lip service. I mean every word I say. I not only represent Dalits but also the minorities and all underprivileged people. They should live in Uttar Pradesh with their heads held high," she said.

MEANWHILE, in another development, the Supreme Court dismissed a writ petition seeking a direction to stop the excavation work that has been going on from March 12 at the "disputed site". A Bench, comprising Justices S. Rajendra Babu and G.P. Mathur, dismissed the petition, filed by Naved Yar Khan, since he failed to cure the defect pointed out by the registry; only a special leave petition, and not a writ petition, can be filed against a High Court order. The Bench had, on March 25, granted a week's time to file a fresh petition.

The court order has provided a breather to the BJP from the pressure tactics of the other constituents of the Sangh Parivar. It can now tell its sister concerns in the Parivar not to pressure the government beyond a point. In this sense, the BJP gains in two ways. It can continue leading the government until the next elections, and the VHP will keep up the chant on the temple issue, keeping it live until the elections. Though the court order may appear to be a setback for the BJP at the moment, it may yet have come as a blessing in disguise for the party. Any precipitate action by the BJP at this juncture would certainly have cost it the government.