Ayodhya/Babri Masjid

Courts and Babri Masjid

Print edition : November 09, 2018

September 1990: L.K. Advani launching his rath yatra in Somnath, Gujarat, which led to the demolition of the Babri Masjid. Photo: the hindu archives

When the Ayodhya dispute comes up for hearing before the Supreme Court on October 29, the fundamentals of India’s secular polity, public confidence in the court and the court’s own prestige and self-esteem will all be at stake.

THERE are at least 13 incontrovertible documents that prove that Muslims were forcibly ousted from the Babri Masjid on December 22-23, 1949. Two reports dated December 10 and 23, 1948, by the Inspector of Waqfs, Mohammed Ibrahim, after visits to the Babri mosque, recorded the harassment and stoning of the namazis going to the mosque. Yet prayers continued to be offered just before dawn and on Fridays. There was official support to an application by Hindus in 1949 to build a Ram temple on the chabutra (raised platform) outside the mosque.

The first information report (FIR) on December 23, 1949, lodged by Sub-Inspector Ram Dube, Police Station, Ayodhya, reads thus: “According to Mata Prasad (paper No.7), when I reached to [sic] Janam Bhumi around 8 o’clock in the morning, I came to know that a group of 50-60 persons had entered the Babri mosque after breaking the compound gate lock of the mosque or through jumping across the walls (of the compound) with a stair and established therein, an idol of Shri Ram Bhagwan and painted Sita, Ram, etc. on the outer and inner walls. ... Ram Das, Ram Shakti Das and 50-60 unidentified others entered the mosque surreptitiously and spoiled its sanctity.”

A radio message on December 23, 1949, by District Magistrate K.K. Nayar to the Chief Minister, the Chief Secretary and the Home Secretary announced: “A few Hindus entered Babri Masjid at night when the Masjid was deserted and installed a deity there.” On December 26, 1949, K.K. Nayar wrote to the Chief Secretary: “Installation of the idol was carried out in the night between 22 and 23 instant.” There are other written records: Ramchandra Das Paramhansa’s admission to The New York Times on December 22, 1991, that he had installed the idol; Prime Minister Jawaharlal Nehru’s wire and letters to Chief Minister G.B. Pant; Deputy Prime Minister Vallabhbhai Patel’s letter to Pant on January 9, 1950; the Gandhian activist Swami Akshay Brahmachari’s letters and memorandum to Home Minister Lal Bahadur Shastri; and the interview of the Imam of the Babri Masjid, Abdul Ghafar, in 1987.

The government of Uttar Pradesh was headed by G.B. Pant. Paragraphs 12 and 13 of a written statement in court by the State of Uttar Pradesh, signed by Deputy Commissioner, Faizabad, J. N. Ugra, on April 25, 1950, read thus: (12) “That the property in suit is known as Babri Mosque and it has for a long period been in use as a mosque for the purpose of worship by the Muslims. It had not been in use as a temple of Shri Rama Chandraji. (13) That on the night of 22 December 1949, the idols of Shri Rama Chandraji were surreptitiously and wrongly put inside it.” It was converted by force and deceit into a Hindu temple on December 22, 1949. The courts have refused redress to Muslims in 70 years.

The Supreme Court of India is all set to rush headlong into a judicial mire of old on October 29, 2018, which will blow up the remnants of the warped judicial process on the Babri Masjid since 1949, the fundamentals of our secular polity, public confidence in the court and the court’s prestige and indeed, self-esteem. The course of the judicial process was diverted by the Special Bench of the Allahabad High Court in Lucknow, which dealt with the case in wilful disobedience of the Supreme Court.

The court might pause to recall that, let alone the courts in Uttar Pradesh, its own record in this case has been a pathetic one. But for the indulgence shown by the then Chief Justice of India (CJI) M.N. Venkatachaliah and Justice G.N. Ray, the mosque would not have been demolished on December 6, 1992. Chief Minister Kalyan Singh was allowed to go scot-free with violations of the Supreme Court’s stay order of November 25, 1991, and the High Court’s order of July 15, 1992. He was hauled up for contempt of court only on October 24, 1994, a day before the CJI retired. He repeatedly ignored the warnings delivered by the Attorney General Milon K. Banerjee. At one stage, the CJI expressed tender concern for the welfare of the kar sevaks who had assembled at the site. The Bharatiya Janata Party (BJP) government made him Chairman of the Constitution Review Committee, whose report no one cites.

Undue haste

When, after the demolition, the Supreme Court heard the case, it was to split on communal lines in its 3-2 decision on October 24, 1994. (Dr M. Ismail Faruqui & Ors. vs Union of India & Ors. [1994] 6 SCC 360.) It did so once again in the present appeal from the Allahabad High Court’s three judgments of September 30, 2010, by the special full bench of the Allahabad High Court in Lucknow—a mere eight years ago. Cases pending far longer do not attract notice. Why the haste in this case, pray? On appeal, the Supreme Court split on communal lines once again on September 27, 2018.

But the bench which heard the appeals at the admission stage on May 9, 2011, was not divided. The High Court’s majority judgments, on September 30, 2010, ordered a tripartition of the Babri Masjid between the idol of Ram Lalla in the central dome, the Nirmohi Akhara, and the leftover “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, agreed on one crucial point—the idol was planted in the mosque in the night of December 22-23, 1949, refuting the Rashtriya Swayamsewak Sangh’s (RSS) lie that it had appeared by a “miracle”.

In appeals against the High Court judgments, the Supreme Court’s bench, comprising Justices Aftab Alam and R.M. Lodha, 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.

Justice Lodha said: “The High Court had granted a new relief, which nobody asked for. The High Court has done something on its own. It has to be stayed.” He added: “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.”

Three crucial factors

There are three factors of cardinal importance that the Supreme Court should not overlook. In the Ismail Faruqui case, the five judges shed their differences and ruled unanimously that Section 4(3) of the Acquisition of Central Area at Ayodhya Act, 1993, was void because it abated the Muslims’ civil suits on title, pending in the lower courts since 1950. This deprived the Muslims of the defence of limitation. The Babri Masjid was built by Mir Baqi in 1528. The High Court held unanimously that the idol of Shri Ramchandra was planted in it on the night of December 22-23, 1949. Consequently the Supreme Court declined to answer the question in the President’s Reference for an advisory opinion on the question.

The question read: “Whether a Hindu temple on 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. [1994] 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 the single ground alone, the High Court’s judgments invite a clear rejection by the Supreme Court.

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.” This was altogether wrong.

If the defence of adverse possession is valid in law, the prior existence of a temple has not the slightest relevance, an aspect on which the High Court lavished great attention. It suffices in law that the Babri Masjid existed since 1528.

Palkhivala’s opinion

The country’s foremost lawyer, Nani A. Palkhivala, submitted the then Prime Minister P.V. Narasimha Rao’s move to get a desired advisory opinion from the court to a blistering attack: “The courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, questions 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 c ourt 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. But the government has now asked the Supreme Court to give its opinion, under Article 143 of the Constitution, whether a temple existed centuries ago on the site where the Babri Masjid stood before.…

“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 Ram was born at that place. There is even a greater difference of opinion on the question whether Ram actually lived as a human being or 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.… large organisations with millions of followers have officially and openly stated that they would not be bound by any verdict of the court of law. The question is not whether they are right or wrong in adopting this attitude. The real point is that if a certain issue essentially involves a question of opinion or belief, the people are entitled to say that a court of law cannot deal with the issue, and if it does its opinion would be without jurisdiction and not binding on the group which is adversely affected…

“The Supreme Court has to decide the issue whether there was a pre-existing temple on the disputed site before the mosque came into existence. Even a finding on this single point issue would leave at large various other questions which are bound to crop up, irrespective of the court’s finding on the question referred for its consideration.… Should any religious place of worship be razed to the ground because a structure pertaining to another religion stood in its place before?

“Archaeology is the study of the art, customs and beliefs of ancient times. It can afford a ground for a belief or an opinion but never for universal certainty. Cannot two minds come to different conclusions on the same archaeological evidence? How can a conclusion reached by a judge be binding on people whose opinions or beliefs go counter to those of the judge? Does it help in any way to confuse separate and distinct questions? Whether Rama was born at a particular place is wholly distinct and different from the issue whether a temple existed at that place. Therefore, are we in any way dislodging the beliefs of those who hold a certain spot to be the birthplace of Rama by saying that no temple existed there?…

“There are times in a country’s history when inaction and silence can be a culpable wrong, and we are living in such times. The nation is standing on the escalator of anarchy and chaos.” His prediction has come true.

But ask yourself why the High Court framed the issue despite the Supreme Court ruling and what gave it the confidence that its action would go unpunished. Why, indeed? The Sangh Parivar’s stand from the word go can be summed up in two propositions: (1) the civil suits on title are irrelevant; and (2) the matter is one of faith and no court can rule on that. The two judges in the High Court did that with superb confidence.

BJP’s Palampur resolution

The BJP raised the issue first in its Palampur resolution on June 9, 1989, at its national executive meeting. That resolution provides a key to the problem. “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, destroyed a temple and built a mosque in its place. Even where a court does pronounce on such facts, it cannot suggest remedies to undo the vandalism of history.” Its order will not be enforced.

The solution? “The sentiments of the people must be respected and Rama Janmasthan handed over to the Hindus—if possible through a negotiated settlement, or else, by legislation. Litigation certainly is no answer.”

The Supreme Court has been treated to such warnings repeatedly. As far back as on September 23, 1990, the BJP leader Atal Bihari Vajpayee had said: “No court can give a clear verdict on the issue and even if a verdict was forthcoming, no government can implement it.” He had accused the National Front government, headed by Prime Minister Vishwanath Pratap Singh, of fooling the nation by declaring that it would stand by a court verdict on the Babri Masjid issue.

Vajpayee was speaking at an event to bid farewell to the BJP president, Lal Krishna Advani, on the eve of his “Rath Yatra” from Somnath to Ayodhya, on September 25, 1990. Replying to the felicitations, Advani agreed with Vajpayee that no court could give a clear verdict. Indeed, Vajpayee explicitly declared, according to a PTI report, that “no court in the country could direct the removal from the disputed site in Ayodhya and no government can implement such a direction even if the court gave it” (see The Times of India, September 21, 1990).

Having rejected the judicial process categorically, Vajpayee left little to the imagination on the alternative he had in mind, even if he did not spell it out in so many words. For he also said that “the Ram temple would come up at the disputed site in Ayodhya at any cost”. Not the law but the brute force of the majority should and will prevail: this is the BJP-RSS view.

The nation had been amply warned of the dishonour that was in the making two years before the sordid deed was accomplished.

All this to what end? The BJP leader Sushma Swaraj admitted in public in Bhopal on April 14, 2000, that the temple movement was “purely political in nature and had nothing to do with religion”. Its object was to get into power, clearly.

In an interview to Maneck Davar published in a Mumbai monthly, Gentleman, in February 1991, Vajpayee was bolder still. “How can you preserve a mosque with the help of the police? You know hundreds of mosques have been destroyed in cities, in villages. Somebody told me in Hyderabad city alone, 42 mosques were destroyed.” Question: When was this? Recently? Vajpayee: “During the period of turmoil. In other cities also, cities of U.P. also. And newspapers... the less said the better...”

In the Supreme Court, Justice S.P. Bharucha repeatedly asked the Solicitor General, Dipankar Gupta, whether the government would enforce the court’s advisory opinion or simply use it as an opening for negotiations. The query was recalled by him on September 6 when the Chief Justice pointedly asked “would you restore the mosque?” in the event of a “converse” finding. He also asked the counsel appearing in support of the reference to bear in mind that if the court found that the reference was not maintainable, the Act would also have to go.

The Solicitor General’s written statement on September 14, 1993, studiously refrained from giving the assurance the court had sought. On September 19, the court asked Gupta for the umpteenth time whether he could make a categorical statement that the mosque would be rebuilt if the reference was answered in the negative. He promised to seek instructions and inform the court on the next and the last day of the hearing of the case. Reminded of it that day, namely, on September 20, Gupta replied that the government had already stated its position in the statement of September 14, 1993. The government’s silence said a lot, which the Supreme Court ignored then but should not ignore now.

On October 29, 2018, the Supreme Court would do well to ask whether a decision in favour of Muslims to rebuild the Babri Masjid would be enforced by the government of India. If not, is this Modi’s stratagem to get favourable court verdicts on the three issues—a uniform civil code, Article 35A and the Babri Masjid—and go to the polls?

Political calculations

The whole thing has been about elections, powers, and dominance. 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 February 24, 1991, as India teetered towards another election, he was confident that the issue would “influence the electoral verdict in favour of the BJP.” 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 train, 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 1984 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.

Suresh Nambath’s report in The Hindu of March 26, 2011, is an eye-opener. “Is Hindu nationalism the raison d’etre of the Bharatiya Janata Party (BJP), or just another vote-catching device? In a private conversation with American diplomats in May 2005, senior BJP leader Arun Jaitley articulated the view that Hindu nationalism was an opportunistic issue for the party.

“Mr Jaitley, who is now the Leader of the Opposition in the Rajya Sabha, met Robert Blake, the Charge at the U.S. Embassy, on 6 May 2005, and provided him and the Political Counsellor an insightful exposition on the politics of Hindutva. ‘Pressed on the question of Hindutva, Jaitley argued that Hindu nationalism “will always be a talking point” for the BJP. However, he characterised this as an opportunistic issue,’ the Charge wrote in a cable dated 10 May 2005....

“When Blake explained the ‘rationale and legal basis’ for the U.S.’ decision, ‘Jaitley agreed with the Charge’s point that Modi was a polarising personality, but argued that it would have been better for the U.S. to let the Chief Minister visit the U.S., where he would have attracted a few demonstrators and then nothing more would be said.’

“The Modi issue aside, the BJP leader was upbeat on U.S.-India relations, ‘emphasising that ties with the U.S. were no longer a point of controversy in Indian politics’. Citing his own situation as typical, ‘Jaitley noted that he has several nieces and sisters living in the U.S., and “five homes to visit between DC and New York’.”...

“In response to the ‘Charge’s pitch for opening of the Indian services sector’, Mr Jaitley, a Senior Advocate, agreed that legal services should be opened to foreign competition, ‘noting that the performance of the Indian bar has begun to improve, even though the quality of judges suffers from a “Gandhian” mindset that leads to unreasonably low salaries’. On the retail sector, Jaitley ‘argued that foreign competition should not seriously hurt the mom and pop stores that form a BJP constituency’.

“In a concluding comment, the Charge wrote: ‘Although visibly pained by the Modi visa revocation, Jaitley was gracious and open throughout. He clearly values his personal and commercial connections to the U.S. (several U.S. corporates are legal clients). As the competition for BJP leadership heats up, Jaitley will enjoy the advantages of a telegenic personality and strong ties to the New Delhi establishment.’”

The issue of title

The Supreme Court’s option is clear. It must undo the wrong done by the High Court and confine the case to the issue of title. This must be declared at the very outset of the hearing on October 29. Enough has been heard from the court’s judges to indicate that the case is not susceptible to determination according to facts and the law. The added issue is a matter of faith and belief. A court of law should not allow itself to be used to impose the faith and belief of one community on the other. Especially if one side has declared for the last 30 years that it will not submit to an adverse verdict. And this side controls the levers of power. This explains Prime Minister Modi’s bid for an early decision as his statements on December 6 and 8, 2017, reveal: “Why are you obstructing the disposal of Ayodhya case?”

Justice Verma’s bias

If the court cannot reject the added issue, it ought to declare that it cannot decide the case either. This brings us to the judgments on September 27, 2018. The majority judgment by Justice Ashok Bhaskar for himself and CJI Dipak Misra reeks of error. It readily accepts Justice J.S. Verma’s tortuous and biased views in the Ismail Faruqui case to imply that both sides were affected by the demolition of the masjid, not the Muslims alone.

Sample these: “Worship by Hindu devotees of the idols installed at the Ram Chabutra which stood on the disputed site within the courtyard of the disputed structure had been performed without any objection by the Muslims even prior to the shifting of those idols from the Ram Chabutra into the disputed structure in December 1949; in one of the suits filed in January 1950, the trial court passed interim orders whereby the idols remained at the place where they were installed in 1949 and worship of the idols there by the Hindu devotees continued; this interim order was confirmed by the High Court in April 1955; the district judge ordered the opening of the lock placed on a grill leading to the sanctum sanctorum of the shrine in the disputed structure on 1.2.1986 and permitted worship of the idols there to Hindu devotees; and this situation continued till demolition of the structure on 6.12.1992 when Ram Chabutra also was demolished.

It was only as a result of the act of demolition on 6.12.1992 that the worship by the Hindu devotees in general of the idols at that place was interrupted. Since the time of demolition, worship of the idols by a pujari alone is continuing. This is how the right of worship of the idols practised by Hindu devotees for a long time from much prior to 1949 in the Ram Chabutra within the disputed site has been interrupted since the act of demolition on 6.12.1992 restricting the worship of the idols since then to only by one pujari. On the other hand, at least since December 1949, the Muslims have not been offering worship at the place in the disputed site, though it may turn out at the trial of the suits that they had a right to do so.” Hindus never prayed inside the mosque but only outside it on the Ram Chabutra—until December 22, 1949.

Justice Verma added: “It is also pertinent to bear in mind that the persons responsible for demolition of the mosque on 6.12.1992 were some miscreants who cannot be identified and equated with the entire Hindu community and therefore the act of vandalism so perpetrated by the miscreants cannot be treated as an act of the Hindu community for the purpose of adjudging the constitutionality of the enactment. Strong reaction against, and condemnation by the Hindus of the demolition of the structure in general bears eloquent testimony to this fact. Rejection of Bharatiya Janata Party at the hustings in the subsequent elections in Uttar Pradesh is another circumstance to that effect. The miscreants who demolished the mosque had no religion, caste or creed except the character of a criminal and the mere incident of birth of such a person in any particular community cannot attach the stigma of his crime to the community in which he was born.”

Justice Verma attributed the demolition to acts of “miscreants”. Is it fair to call L.K. Advani, M. M. Joshi and Uma Bharati “miscreants” because they were present on the site and encouraged the mobs and endorsed their act? Uma Bharati had advised the mobs: “Ek dhakka aur do” (Give one more push) .

The court sought to explain away Justice Verma’s deliberate attempt to tilt the scales in favour of Hindus. The bench refused to refer the case to a five-member bench to override his observations. Justice Verma cited no work on the significance of a mosque in the religion of Islam; a plain ipse dixit like a layperson’s remark on what he sees, utterly unworthy of a judge. The truth is that Islam enjoins congregational prayer five times a day in a mosque. A believer is free to pray at home if he cannot go to a mosque. Article 25 of the Constitution guarantees the “practice of religion” as a Fundamental Right. The imam of the mosque enjoys a special position. Justice Verma’s judgment was readily followed by the two judges in the High Court.

The Supreme Court ruled: “We conclude that reliance on the judgment of Ismail Faruqui by the High Court in the impugned judgment and reliance by learned counsel for the appellants and taking grounds in these appeals on the strength of judgment of Ismail Faruqui’s case are all questions, on the merits of the appeals, which need to be addressed in these appeals. Thus, the above submission does not help the appellant in contending that judgment of Ismail Faruqui’s case needs reconsideration.”

In a powerful dissent, Justice S. Abdul Nazeer pointed out: “The conclusion in paragraph 82 of Ismail Faruqui that ‘A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in [the] open’ has been arrived at without undertaking comprehensive examination.” He cited many cases decided by the Supreme Court in which a case was referred to five-member bench even if no important issue of constitutional law was involved. As recently as September 24, 2018, a three-member bench referred to a larger bench a case on female circumcision. Raju Ramachandran, counsel for one of the parties which urged reference to a larger bench, cited several precedents of such a reference even when no substantial question of constitutional law was involved. It is harder to think of a case which demands such a reference more imperatively than the one on the Babri Masjid. Refusal to do so reflects poorly on the attitude of the two judges in majority. Why the hurry, may one ask?

When the bench reconvenes on October 29, it should ask itself two questions of a fundamental nature. (1) Is it wise to pronounce a judgment which it knows will be defied if it upholds the Muslims’ case? The BJP has consistently indicated it will do so, and it is in power now. (2) Does not the status of the mosque in the faith and law of Islam require deeper study and further argument at the Bar?

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