“IS it not perfectly clear that, if antiquated claims are to be set up against recent treaties and long possession, the world can never be at peace for a day? The laws of all nations have wisely established a time of limitation, after which titles, however illegitimate in their origin, cannot be questioned. It is felt by everybody, that to eject a person from his estate on the ground of some injustice committed in the time of the Tudors would produce all the evils which result from arbitrary confiscation, and would make all property insecure. It concerns the Commonwealth—so runs the legal maxim—that there be an end of litigation.” (From Lord Macaulay, Critical and Historical Essays, Longmans, Green & Co., 1877, page 666).”
Chief Justice of India Justice J.S. Kehar’s proposal on March 21, 2017 for mediation in the Babri Masjid case, as well as his remarks amplifying it are in glaring contrast to the Supreme Court’s sound reaction to the judgment of the Allahabad High Court’s majority judgments, on September 30, 2010, ordering a tripartition of the Babri Masjid between the idol of Ram Lalla in the central dome, the Nirmohi Akhara, and “one-third of the total area of the premises” to Muslims. It was made by Justices Sudhir Agarwal and Sibghatullah Khan. Justice Dharam Veer Sharma rejected the Muslim case in toto . All three, however, were agreed on one crucial point—the idol was planted in the mosque on the night of December 22-23, 1949, refuting the Rashtriya Swayamsewak Sangh’s (RSS) lie that it appeared by a “miracle”.
Appeals against the High Court judgments came up for admission in the Supreme Court on May 9, 2011, before a Bench comprising Justices Aftab Alam and R.M. Lodha, who did not conceal their displeasure. At the start of the proceeding, the judges pointedly asked if anyone was in favour of the High Court’s verdict. No one was—a fact which the court appreciated. It asked if any of the parties supported the judgments. No one did ( DNA , May 10, 2011). All sought a stay of the judgments’ execution, which the court duly ordered.
Justice Alam said: “At least on one issue, all of you are unanimous. The High Court has granted a new relief, which nobody asked for it [ sic ]. The High Court has done something on its own. It has to be stayed.” Justice Lodha said: “The High Court’s judgment is something strange. A new dimension has been given by the High Court as the decree of partition was not sought by the parties. It was not prayed for by anyone. It has to be stayed. It’s a strange order. How can a decree for partition be passed when none of the parties had prayed for it? It’s strange. Such kind of decrees cannot be allowed to be in operation. It is a difficult situation now. The position is that the High Court’s verdict has created a litany of litigation.”
The two-judge Bench said that the status quo at the disputed site would remain as directed in 1994 by the Constitution Bench and the order passed on March 13-14, 2002. Taking note of the order of 2001, it directed that on the 67.703 acres located in various plots detailed in the Schedule to the Acquisition of Certain Area at Ayodhya Act, 1993, “which is vested in the Central government, no religious activity of any kind by anyone be permitted or allowed to take place”. However, while directing the status quo to continue, the bench made it clear that the existing “pujas” in the makeshift Ram Lalla temple at the disputed site would go on as usual.
Sanctifying a crime The Allahabad High Court had, in effect, sanctified the criminal conversion of the historic Babri Masjid, built in 1528, into a Hindu temple in 1949. On December 6, 1992, it was demolished. Leaders of the Bharatiya Janata Party (BJP) are on trial for complicity in the crime on charges made by the Central Bureau of Investigation (CBI) which a Sessions Judge upheld on a prima facie view formed by the committing Magistrate.
Justice J.S. Khehar’s proposal on March 21, 2017, carries this very process further. He could not have been unaware of the sordid deeds of 1949 and the crime of 1992. He nonetheless proposed what he did. Nor could he have been unaware of the BJP’s long-standing agenda to build a Ram temple on the ruins of a demolished mosque and the Modi’s regime’s declared intention to use the clout of its massive majority to push the projected thought.
It is in this context that CJI Khehar’s offer was made: “Give a bit, take a bit. Make an effort to sort it out. There are issues best decided jointly. … these are issues of sentiments and religion . The court should come in the picture only if you cannot settle it … if the parties want me to sit with mediators chosen by both the sides for negotiations, I am ready to take up the task” ( The Indian Express , March 22; emphasis added throughout).
The proposal “give a bit, take a bit” is appropriate for a civil suit for partition of property. The court was faced here with civil suits that ensued after the foul deeds of December 1949 pertaining to the forcible conversion of the house of worship of one community by members of another. It was, next, demolished in 1992. The issue is whether the mosque is to be restored to the Muslims or the victims of the crimes are to be fobbed off with leftovers, leaving the perpetrators of the deeds to enjoy the fruits of their crimes. If CJI Khehar’s suggestion “give a bit, take a bit” is intrinsically wrong, his approach underlying it is disturbing in the extreme. “These are issues of sentiment and religion.” This is precisely the stand of the BJP from day one. Small wonder that within hours of this judicial move “a senior government functionary welcomed it and said it would move the court to speed up hearings” if the parties did not talk or settle. What he added is in direct quotes: “The matter has been hanging fire since 1999 [ sic ; 1949?] when Hindus started praying. The Allahabad High Court judgment endorsing the stand of the majority community came in 2010. The matter cannot be allowed to hang fire any more .”
Evidently, the government hopes to get the Supreme Court to endorse the High Court verdict and then proceed with its plans. The Indian Express hit the nail on the head when it pointed out, in a brave and brilliant editorial on March 22, that “the sheer inequality of power, the political weight and dominance acquired by one side of the argument in the dispute … For the Chief Justice now to throw the ball back to the litigants in the Ramjanmabhoomi-Babri Masjid dispute is to lend the imprimatur of his high office to a proposal that is vulnerable to political misuse and, in effect, send an ominous message: That the case will be given over to the decision of the majority at a time when there seem to be very few checks on its will to have its say.”
Ayodhya in reverse This, surely, is not the first case of its kind. There have been instances where courts of law had to grapple with cases that had aroused religious fury, such as the Shahid Ganj Masjid case, when a mosque in present-day Pakistan was admittedly converted into a gurdwara. But courts upheld it applying the law of limitation and the rule of adverse possession. It was Ayodhya in reverse with two vital differences. There was incontestable proof of the construction of a mosque by a deed of dedication in 1722 . Equally incontestable was the fact that from 1762 it was occupied by Sikhs. On May 2, 1940, the Privy Council rejected the Muslims’ claim, and rightly so. It held: “It cannot be doubted that the Indian Limitation Act of 1908 applies to immovables made waqf, notwithstanding 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 years, 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 settler or waqf became extinct under S.28.”
The distinguished educationist Dr. Amrik Singh noted: “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 converted into a mosque. If this can happen in Pakistan, which according to its Constitution is described as an Islamic state, can India, which described itself as a secular state, act differently? How does one deal with an issue when faith is put forward as the governing principle in place of reason? If that contention were to be accepted, it would be the end of civilisation.” (The Mosque known as Masjid Shahid Ganj & Ors. vs. Shiromani Gurdwara Prabhandak Committee ; 67 Indian Appeals 251).
The Premier of Punjab, Sir Sikandar Hayat Khan, rejected pleas for legislation. In a statement in the Punjab Assembly on March 16, 1938, he asked how the Muslims could reject similar moves in “the Provinces where the non-Muslims are in a majority”. Five days later, the Muslim League’s Council, led by M.A. Jinnah, endorsed that stand.
The Babri Masjid has existed since 1528. But right at the inception, proceedings in the civil suits were derailed by false claims that a Ram temple had existed on the site of the mosque. Here come the vital differences. Proof of such a temple varies from the questionable to the spurious. But even if that were not so, what of the law on adverse possession, from 1528 to 1949?
Realising this, the BJP declared from the very outset that the courts cannot rule on the issue; the site of Ram’s birth cannot be ascertained and it was, above all, a matter of faith; the faith of the majority community which it can impose by legislation. Coercive negotiations or the subversion of the rule of law. It insists that in this one case the law of limitation cannot and should not apply; adverse possession is irrelevant.
The BJP nailed its colours to the mast with a definitive statement at Palampur on June 11, 1989. This was on the eve of general elections, which made it clear that the motivation was power. It said: “The BJP holds that the nature of this controversy is such that it just cannot be sorted out by a court of law. A court of law can settle issues of title, trespass, possession, etc. But it cannot adjudicate as to whether Babar did actually invade Ayodhya, destroy a temple and build a mosque in its place. … The sentiments of the people must be respected, and Rama Janamasthan handed over to the Hindus—if possible through a negotiated settlement, or else, by legislation. Litigation certainly is no answer.” On April 6, 1989, A.B. Vajpayee asserted in Bombay (now Mumbai) that the issue could not be solved by the courts. The Muslims should be persuaded to give up their claim to the mosque. It should be handed over to Hindus unconditionally. He rejected the proposal to declare the mosque a national monument, saying it belonged to Hindus as part of their cultural heritage ( Indian Post , April 7, 1989).
Contempt for evidence The judicial process was rejected in terms that reflect a contempt for evidence and a dangerous recourse to demagogy. If BJP president L.K. Advani said that “the controversy is about accepting rashtra purush Ram against a foreign invader Babar” ( The Telegraph , May 17, 1990), Vishwa Hindu Parishad (VHP) leader Ashok Singhal asserted that “the Constitution does not vest powers in the court to question the divine factor of the people” ( The Telegraph , October 6, 1989). The RSS leader Rajendra Singh wrote to the then Prime Minister, Rajiv Gandhi, on April 12, 1987: “All Hindus are convinced it is the Ram Janmabhoomi and they do not need the proofs from Baburnamas and your white-washing historians.” The RSS chief, Balasaheb Deoras, said, “This is not a case on which the judiciary can pass a judgment. What type of evidence are the Hindus expected to produce? That Rama was born and that his birthplace is Ayodhya?” ( Organiser , March 12, 1989).
Advani pursued the Palampur line relentlessly. So did A.B. Vajpayee. “Even where a court does pronounce on such facts, it cannot suggest remedies to undo the vandalism of history. A problem of this kind can be sorted out either by negotiation between contending parties or by government decision or legislation and not by litigations,” Advani said ( The Indian Express , August 14, 1990).
It was a matter of faith, and the faith of the majority was decisive, regardless of the law and evidence. On May 17, 1989, Vajpayee said: “It was not possible to pinpoint the exact place where Rama was born thousands of years ago. The temple was built and rebuilt over the age and had existed since Emperor Vikramaditya’s time” ( The Hindustan Times , May 18, 1989). Yet, on September 23, 1990, he had no hesitation in asserting that there was only one birthplace of Shri Rama ( The Hindustan Times , September 24, 1990).
On September 30, 1990, Advani conceded that “no one can prove that it was the birthplace of Shri Rama”. But he contended that it was a matter of belief which the government could not afford to ignore ( The Independent , October 1, 1990). The belief of a group is law.
This explains the refusal to submit the matter to a judicial verdict, quite apart from the enormity of the outrage in the use of force to make one community submit to another’s belief. Even in the realm of belief, the site of the birth was not the Babri Masjid but the chabutra (a platform) outside it but within its compound.
The Mahant of Ramjanmasthan should have known. The suit that Mahant Raghubar Das filed on January 19, 1885, sought permission to build a temple on the chabutra. The District Judge, in his judgment dated March 26, 1886, said: ‘This chabutra is said to indicate the birthplace of Ramchander.” In 1987, Muslims themselves proposed the construction of a Rama temple on the chabutra. The BJP rejected it brusquely. Mumbai prides itself on a traffic island which houses a temple, a mosque and a church.
Drive to recast polity In his reply to Professor Hiren Mukherji’s letter of June 5, 1989, Vajpayee wrote: “It is not possible to pinpoint the exact spot where Ram was bon. But it is known that Ram, the King of Ayodhya, whom vast masses of Hindus regard as the incarnation of God, was born in that historical city and a temple dedicated to him had been in existence since long. This temple was built and rebuilt over the ages.” ( Organiser , September 24, 1989). It was a drive to recast India’s polity and usher in Hindu Raj.
The record explains how the ground was laid for the policies of today. On April 6, 1989, Vajpayee demanded: “Hand over the site to Hindus for that is the only solution for [ sic ] the Ramjanmabhumi-Babri Masjid dispute in Ayodhya.” He rejected the proposal to have the mosque declared “a national” monument. “Rama and Krishna were Hindu gods and therefore Hindus were the rightful claimants of the site.” Vajpayee said he spoke as a swayamsewak of the RSS and as a Hindu ( The Indian Express , April 7, 1989). Both statements were made well before the BJP’s Palampur resolution of June 14, 1989.
On August 13, 1990, Advani said: “If Hindu sentiment is not going to be respected in India where else in the world can it command respect?” ( The Indian Express , August 14, 1990). On September 12, 1990, Advani said that the temple belonged to the Hindus. The campaign would “affect the basis of nationalism in India”. He said the mantle of reviving the culture and tradition of Hinduism, which had been suppressed by centuries of exploitation by foreign forces as well as the ruling parties after Independence, had now fallen on the BJP. “By undertaking this yatra I am only reviving the spirit of nationalism that had lain dormant all these years” ( The Hindu , September 24, 1990).
On September 24, 1990, Advani said that the aim of his rath yatra was to launch a “crusade in defence of Hindutva and crusade against pseudo-secularism” ( The Telegraph , September 25, 1990). On September 25, 1990, beginning his rath yatra from the Somnath temple, he said: “We want to restore the pride of the country by building the Ayodhya temple, which is the second phase of nationalist renaissance after Independence” ( The Times of India , September 26, 1990).
On September 27, 1990, Advani said: “What is the important is the restoration of the dignity of the Hindus” ( The Indian Express , September 28, 1990). On October 2, 1990: “Dharma in India is being ridiculed and secular policy is putting unreasonable restrictions on Hindu aspirations” ( The Times of India , October 3, 1990). On May 12, 1991, at Faizabad, Vajpayee stressed the need for constructing the temple “to save the honour of the Hindu community and to protect the cultural heritage of the country” ( The Times of India , May 13, 1991).
On November 29, 1992, came the BJP’s statement: “The Ayodhya movement is not just a plea for a temple for Shri Rama—it implies a far deeper quest for recapturing our national identity. It represents the soul of the nationalist thrust of pre-independence days.”
Belief and power Now read the Allahabad High Court’s order. “It is declared that the area covered by the central dome of the three-domed structure, i.e. the disputed structure, being the deity of Bhagwan Ram Janmasthan and place of birth of Lord Rama as per faith and belief of the Hindus , belong to the Plaintiffs (Suit 5) and shall not be obstructed or interfered in any manner by the Defendants.”
It was a cynical exploitation of the devotion of masses of Hindus to Ram for electoral gains and capture of power. Advani never concealed his objectives or his ambition to become Prime Minister. Immediately on the passing of the Palampur resolution on Ayodhya on June 11, 1989, Advani said: “I am sure it will translate into votes.” On December 3, 1989, after the general elections, he expressed satisfaction that the issue had contributed to the BJP’s success. On June 18, 1991, he made this pathetic confession: “Had I not played the Ram factor effectively, I would have definitely lost from the New Delhi constituency.” Shortly after the demolition of the Babri Masjid on December 6, 1992, and another wave of carnage that came in its wake, Advani wrote that if the Muslims were to identify themselves with the concept of Hindutva there would not be any reason for riots to take place ( The Times of India , January 30, 1993). In July 1992, he argued in the Lok Sabha Speaker’s chamber: “You must recognise the fact that from two seats in Parliament in 1985 we have come to 117 seats in 1991. This has happened primarily because we took up this issue [Ayodhya].” Behind the BJP’s religio-cultural rhetoric, however, there has always been cold political calculation. The BJP leader Sushma Swaraj ripped apart this pretence in Bhopal on April 14, 2000, when she admitted that the Ram Janmabhoomi movement was “purely political in nature and had nothing to do with religion” ( The Telegraph , April 16, 2000).
To Robert Blake, Charge d’ Affairs in the U.S. Embassy, Arun Jaitley admitted, when they met at the U.S. Embassy on May 6, 2005, that “Hindu nationalism was an opportunistic issue for the party” ( The Hindu , March 26, 2011).
Such a stand cannot be sustained in any court of law without derailing the conduct of the suits on title. Even before the hearings had begun, an astute law correspondent, Manoj Mitter, noted the insidious character of some of the issues framed by the court. “Several of the 43 issues framed by the court on May 25 pertain neither to law nor any verifiable fact. Rather, those issues fall in the grey areas of history, mythology and religion. Here is a sample: ‘Is the property in suit the site of Janam Bhumi of Sri Ram Chandraji?’ ‘Whether the building and the graveyard stand dedicated to almighty God’, as alleged by the Plaintiffs [Sunni Wakf board]? ‘Have the Muslims been in possession of the property in suit from 1528 AD continuously, openly and to the knowledge of the Defendants and Hindus in general? If so, its effect? Whether the building has been constructed on the site of an alleged Hindu temple after demolishing the same? If so, its effect?” ( The Times of India , June 25, 1990).
One would have thought that the civil courts would correct the course after the Supreme Court’s unanimous ruling that adverse possession was a relevant defence. The President’s Reference to the court for an advisory opinion posed a Question for the Court’s Advisory Opinion, which it unanimously refused to answer as it would have entailed wiping out the Muslims’ case on adverse possession. The Question read: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid [including the premises in the inner and outer courtyards of such structure] in the area on which the structure stood?” ( Ismail Faruqui & Ors. vs Union of India & Ors.  6 SCC 360, page 385). Compare this with the question that the Allahabad High Court ordered the Archaeological Survey of India (ASI) to answer on March 5, 2003: “Whether there was any temple/structure which was demolished and mosque was constructed on the disputed site?” On that single ground alone, the High Court’s judgments invite a clear rejection by the Supreme Court.
Excavation order flouted Supreme Court ruling The High Court order of excavation of the ground on which the mosque had stood was made on March 5, 2003, despite the Supreme Court’s unanimous ruling on October 25, 1994. The order said: “One of the important issues in the suit is whether there was any temple/ structure which was demolished and mosque was constructed on the disputed site. We took the view that archaeological evidence will be of importance to decide such an issue. We had made a suggestion in regard to excavation of the site in question by an order dated 1.8.2002 and invited the suggestions from the parties in this regard. It was further observed that till excavation order is passed the Archaeological Survey of India will get surveyed the disputed site by Ground Penetrating Radar and Geo-Radiology and will submit its report in this regard. Certain objections were filed challenging our power to suo motu exercising such power. We rejected the objections on 23.10.2002.”
If the defence of adverse possession is relevant, neither the prior existence of a temple nor the un-Islamic character of the mosque has any relevance—aspects on which the High Court lavished great attention. It suffices in law that the Babri Masjid existed since 1528.
What Chief Justice Khehar ought to remember in sheer justice is that the judges of the High Court took this view in brazen violation of a unanimous view of the otherwise divided Bench of the Supreme Court in the Babri Masjid case—namely, that the rule of adverse possession applies in this case as well ( Ismail Faruqui & Ors. vs Union of India & Ors.  6 SCC 360, decided on October 24, 1994).
Nani Palkhivala’s trenchant critique of the excavation, the idea of which is implicit in the President’s Reference, is still relevant. I quote it in extenso : “The courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, question of opinion or belief or political wisdom. It is not the court’s role to be an extended arm of the executive. Public opinion of public beliefs may weigh with the executive in shaping governmental policies.
But it is not for the court to decide whether there are cogent grounds for opinions or beliefs which the people may choose to entertain. … It is to my mind absurd to suggest that the highest court in the country should be asked to decide question of history or archaeology. …
“Historians have expressed widely divergent views on the issue whether there was a pre-existing temple on the site on which the mosque was built by Babar. Much less are they agreed that Rama was born at that place. There is even a greater difference of opinion on the question whether Rama actually lived as a human being or whether he was the supramental ideal created by mythology to represent the perfect man. To ask the Supreme Court or the Allahabad High Court to decide such questions of mythology or history, or mixed questions of mythology and history, is to bear witness to the bankruptcy of our political institutions.
“It is a measure of the degradation to which we have reduced our third-rate democracy that we have lost all sense of propriety, and are not only willing but eager to call upon the courts to decide questions of opinion or belief, history, mythology, or political expediency. Never in the history of any country have courts been approached to deal with the type of questions which are now suggested as fit to be referred to the courts in connection with the incidents at Ayodhya.
“The consequences of asking the Supreme Court or the Allahabad High Court to deal with the type of questions which are suggested for reference would be disastrous in the long run. It would thrust upon the court a task for which it is not qualified by training or experience. Courts can deal with questions of law or of fact. They are not qualified to deal with questions in other fields like archaeology or history. A judge can decide only upon documentary evidence or evidence given by a witness as to what he himself saw or heard. It is well established that hearsay evidence is inadmissible in a court of law under the Indian Evidence Act. … If the court is pushed into the political arena, it would impair the image and undermine the status of the court. … Should any religious place of worship be razed to the ground because a structure pertaining to another religion stood in its place before?”
The Supreme Court can yet retrieve the situation by asking the Allahabad High Court to decide according to the law it had laid down in 1994 or decide the case itself.
Madhav Godbole visited the site, after the demolition, as Union Home Secretary. He wrote: “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 devoted 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” ( Unfinished Innings, ; page 406).
India’s grand temple architecture is the envy of the world. How will it react to the sight of a temple built on the site of a demolished mosque? When the communal pitch and opportunism are gone, Indians themselves will look back in shame on a structure built with force and deceit.