Ayodhya case

Supreme Court on trial

Print edition : January 05, 2018

The Babri Masjid, hours before its demolition by kar sevaks on December 6, 1992. Photo: THE HINDU ARCHIVES

Ayodhya, December 9, 1992: The makeshift temple where the Babri Masjid once stood. Photo: THE HINDU ARCHIVES

Mohammad Shami, whose brother, Fateh Mohammad, was killed by a marauding mob of kar sevaks the day after the demolition in Ayodhya. Here seen with his wife, Amina, on December 8 outside the concrete house in which they took refuge and saved their lives. Photo: Rajeev Bhatt

Kapil Sibal, counsel for the appellants in the Ayodhya case. Photo: KAMAL KISHORE/PTI

Wasim Rizvi, head of the Shia Central Waqf Board and one of the petitioners in the case, speaking to the media after the hearing on December 5. Photo: Shanker Chakravarty

Mahant Dharam Das of the Ayodhya-based Nirvani Ani Akhara, who is one of the petitioners, after the hearing. Photo: Shanker Chakravarty

The Supreme Court should consider seriously whether it should proceed with the appeals on the Ayodhya case at all after quashing the partitioning judgment of the Allahabad High Court, rejecting decisively its view that faith prevails over the law and that any object worshipped becomes an object of legal protection.

“But this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.”

-- Learned Hand in a lecture at Boston on the “Contribution of an Independent Judiciary to Civilisation” on November 21, 1942 (emphasis here as in the original).

THIS is a perfectly accurate description of the state of Indian society in the last 30 years since the Bharatiya Janata Party (BJP) began demanding construction of a Ram temple at Ayodhya even though the Babri Masjid had stood there since 1528. It was demolished by the activists of the BJP and the Rashtriya Swayamsewak Sangh (RSS) and allies like the Shiv Sena on December 6, 1992.

The Supreme Court of India is the country’s last resort for seekers of justice. The chequered course of justice has made it the court of the very last resort. On December 5, 2017, before a Bench comprising Chief Justice Dipak Misra and Justices Ashok Bhushan and S. Abdul Nazeer, counsel for the appellants, the Muslim side, requested the court to adjourn the hearing of the appeals from the Allahabad High Court’s judgment on September 30, 2010, until after July 15, 2019, that is, after the next general election. One of them, Kapil Sibal, pointed out that a “decision in this case will have serious ramifications”, a statement incontrovertible and obvious. The government of India was using the courts, he said, to realise the agenda in the BJP’s election manifesto of 2014 to build a Ram temple. He might have added that it is also trying to use the courts to realise the other two planks of its old agenda—abrogation of Article 370 and a uniform civil code. Prime Minister Narendra Modi wants to prove that he succeeded where A.B. Vajpayee and L.K. Advani failed. Dushyant Dave supported the plea: “Government is keen to have the court hear these appeals. Don’t fall into the trap.” So did Rajeev Dhawan. They sought to withdraw but changed their minds on the court’s displeasure.

Involved are two issues, the plea for postponement and counsel’s withdrawal. In a highly charged atmosphere, postponement is not only desirable but obligatory. Precedents support this course. More drastic steps were taken. In 1974 the Irish Republican Army (IRA) decided to attack Britain itself. In November 1974, 19 were killed and 182 injured in Birmingham. Six innocent Irishmen were picked up by the security forces, brutalised and unjustly imprisoned. The Birmingham Six became a cause celebre. They were released years later after the fraud was exposed and the officials were brought to book. On October 15, 1993, at the Old Bailey, Justice Garland held that a fair trial of West Midland Police officers, charged with conspiracy to pervert the course of justice, was impossible because of the enormous press coverage over the two decades. The record shows that in the Babri Masjid case even judges submitted to popular clamour.

Why the desperate hurry?

As if to vindicate the three counsel, four days later, on December 8, addressing an election rally, Narendra Modi raised the Ram temple issue, in coarsely communal terms and attacked the Congress not for what it had said but what its senior member Kapil Sibal had said in the Supreme Court in a professional capacity. “Clarify whether you are an advocate of Ram Temple or Babri Masjid.” This aspersion, which applies to all three counsel, is clearly intended to deter lawyers from appearing for Muslims. He next attributed Kapil Sibal’s arguments in court as counsel as the stand of his party, the Congress. He said they were not answering why they were linking the Ram Mandir hearing with the Lok Sabha elections. “Why are you obstructing the disposal of Ayodhya case?” He had said the same thing on December 6. One might well ask why he is in such a desperate hurry to secure what he evidently hopes, a favourable verdict before 2019 ( The Times of India, December 9, 2017).

The court cannot ignore the fact that (a) this is a political issue to facilitate a grab for power, and (b) the country has in Modi one who has been on an election roll ever since he came to power in Gujarat. Both will intensify. Were it not for this dangerous exploitation of the Ram temple issue, Modi could not have become Chief Minister of Gujarat and Prime Minister of India.

BJP against the judicial route

The BJP formally raised the issue in its Palampur resolution on June 11, 1989, on the eve of the Lok Sabha elections, pouring scorn on the judicial process. “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 just 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 Ram Janmabhoomi handed over to the Hindus—if possible through a negotiated settlement, or else by legislation. Litigation certainly is no answer.” Advani said that very day, “I am sure it will translate into votes” in the 1989 election. On November 20, 1990, he was asked “So, the rath yatra did have a political purpose?” Advani replied: “Yes, it did have [pause]. It did have. I [ sic] passed a resolution in Palampur, it was a political resolution.” The record damns the BJP completely. On December 3, 1989, after the general election, 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.” 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. 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). Arun Jaitley admitted to Robert Blake, the Charge d’affaires in the privacy of the U.S. Embassy on May 6, 2005, that “Hindu nationalism was an opportunistic issue for the party” ( The Hindu, March 26, 2011).

Since 1989, the BJP has consistently asserted two things—the issue is not justiciable, and the court’s verdict cannot and will not be implemented. “Even where a court does pronounce on such facts, it cannot suggest remedies to undo the vandalism of history,” the 1989 resolution said.

The BJP could not have performed a somersault if it did not feel assured that it would get the temple through a court verdict. Whatever gave it that assurance? The somersault is as hideous as the assurance is amazing. Remember its demands were peremptory and sweeping—no national monument; hand it to Hindus. On February 15, 1987, Atal Bihari Vajpayee urged Muslims to give up their claim to the Babri Masjid and hand over the entire place to the Hindus, who should reciprocate by allowing the present structure of the mosque to stand as it is while constructing a temple adjoining it ( Indian Express, February 16, 1987). A two-temple solution: one within the mosque, another outside it.

On April 6, 1989, Vajpayee demanded: “Hand over the site to Hindus for that is the only solution for [ sic] the Ramjanmabhoomi-Babri Masjid dispute in Ayodhya.” He rejected the proposal to have the mosque declared “a ‘national’ monument”. Ram 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 ( Indian Express, April 7, 1989). Both statements were made well before the Palampur resolution.

This was the first step. In 1992, Advani linked the Krishnajanmabhoomi and the Vishwanath temple dispute to the campaign as well and said, “It is not without reason that while I am beginning tomorrow’s yatra from Varanasi, Dr Murli Manohar Joshi is beginning his from Mathura.” Asked by a foreign correspondent whether he would violate court orders in Ayodhya on December 6, Advani replied, “As a political worker, I have violated laws” ( The Telegraph, December 1, 1992). The politician is above the law. Any offence he commits becomes a “political offence”.

Vajpayee said generations to come would never accept it as a national monument for the sake of political expediency. Neither could the court settle it. If the court declared the site as Ramjanmabhoomi, would it be acceptable to the government, Vajpayee asked. Ram was born centuries before Babar, and Ram and Krishna were Hindu gods, therefore, Hindus were the rightful claimant of the site.

While rejecting the judicial route, Advani accused the P.V. Narasimha Rao government of drawing the judiciary at the highest level “into what is essentially a political issue and, besides, a matter of religious faith ... the executive should not be allowed to use judiciary to thwart the people’s will”. He added, tongue firmly in cheek: “If the judiciary today is seen as an instrument to grant what the government wants, the responsibility for that is largely on the government.”

Vajpayee said on September 23, 1990, as he bade farewell on the eve of the rath yatra: “No court can give a clear verdict on the issue and even if a verdict was forthcoming no government can implement it.” Advani also made it clear that the BJP was of the view that on the Ramjanmabhoomi issue, no court could give a clear verdict. Vajpayee made it clear that the Ram temple would come up at the disputed place in Ayodhya at any cost and the BJP was committed to make the temple plan a success ( The Times of India, September 24, 1990). The RSS boss M.D. Deoras was as emphatic: “This is not a case in which the judiciary can pass a judgment. What type of evidence are the Hindus expected to produce? That Ram was born and that his birthplace is Ayodhya?” ( Organiser, March 12, 1989.)

Why the U-turn?

Now the BJP has not only resiled from its 30-year-old rejection of the judicial route but is raring to enter it. Why? The Sangh Parivar’s entire case rests fundamentally on a lie that now stands exposed. What exactly happened on December 22-23, 1949? The RSS journal Organiser of March 29, 1987, will have us believe that on the historic morning of December 23, 1949, the idols of “Sri Ramchandra and Sita Devi miraculously appeared in the Janmasthan as the Hindu devotees rejoiced over the miracle and thronged in their thousands”. The government proclaimed the premises as disputed and locked the gates. It is a patently absurd explanation. The truth about the takeover of the mosque was too shocking to be admitted. Justice Deoki Nandan Agarwal also took cover under this “miracle” ( Parlance, 1986, page 10).

In truth, the miracle was the climax to a nine-day, non-stop recitation of the Ramcharitmanas just outside the mosque organised by the Akhil Bharatiya Ramayana Mahasabha. There was one man who had the moral courage to speak up against the outrage and continued still to denounce it—Akshay Brahmachari (see his interview in Sunday Mail, July 2, 1989). He was then Secretary of the Faizabad District Congress. He wrote to Lal Bahadur Shastri, then a Minister in the Uttar Pradesh government, and went on hunger strike twice in 1950. “In November 1949, I was told that the Muslim graves near the Babri Mosque were being dug out en masse. I personally went and saw that it was actually so. …

“In the Babri Mosque itself, even after the government took possession of it under Section 145 CrPC, Hindu worship remaining unchecked, only the Muslims could not say their namaz there. … There is terror in the hearts of the Muslims of Faizabad, and most of them have sent their families away to relations living elsewhere. And some of them have left with all their belongings for good. … They are threatened with dire consequences if they will not do so. Muslim shopkeepers are being forced to vacate their shops. The boycott of Muslim shops is openly encouraged. … I do not view this question as one of saving the Mosque or Muslims. I view it as saving the great ideals of the Congress and Mahatma for which we have been struggling all these days.”

There are 13 incontrovertible documents that prove that Muslims were forcibly ousted that night. 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 near the mosque.

Installation of Ram idol

The first information report 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. Government servants on duty and several others are witness to it.”

A radio message on December 23, 1949, by District Magistrate K.K. Nayar to the Chief Minister, the Chief Secretary and the Home Secretary: “A few Hindus entered Babri Masjid at night when the Masjid was deserted and installed a deity there. … Police picket of fifteen persons was on duty at night but did not, apparently, act.” 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. Akshay Brahmachari’s letters and memorandum to Home Minister Lal Bahadur Shastri. The Imam of the Babri Masjid, Abdul Ghafar’s interview in 1987.

A written statement in court by the State of Uttar Pradesh, signed by Deputy Commissioner, Faizabad, J.N. Ugra, on April 25, 1950. Paragraphs 12 and 13 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 December 22, 1949, the idols of Shri Rama Chandraji were surreptitiously and wrongly put inside it.”

In The Statesman of October 26, 1986, Chandan Mitra, now eminence grise of the BJP, quoted an official as saying, “Obviously the guard had been bribed heavily.” Imam Abdul Ghafar testified that until the end “we used to offer namaz inside the mosque and the Hindus prayed on the chabutra” ( Sunday Mail, July 2, 1989).

Offences in law

The law is not impotent in such cases. Section 295 and 297 of the India Penal Code make the acts offences in law. Section 145 of the Criminal Procedure Code of 1898 empowered the magistrate to require the parties to file their claims, not on title to the property, but “as respects the fact of actual possession of the subject of dispute”. He decides “which of the parties was” in possession. If a party has been “forcibly and wrongfully dispossessed”, the magistrate may treat it as if it had been in possession. It is then restored in possession, leaving it to the aggressor to file a civil suit to establish his title to the property. In Ayodhya this very section was used to sanctify the Muslims’ dispossession.

The Allahabad High Court Bench hearing the Babri Masjid case held unanimously on September 30, 2010, that an idol was, indeed, planted in the mosque in the night of December 22-23, 1949. Is now the judicially determined fact of a forcible conversion of a mosque into a temple of no consequence in law? Yet, as documented earlier (A.G. Noorani, Frontline, October 22, 2010), at every step in the entire judicial process Muslims received short shrift. By a weird order on September 30, 2010, Justices Sibgatullah Khan and Sudhir Agarwal ordered a tripartite partition of the masjid. The portion where Shri Ram’s idol is kept is given to Hindus. The Nirmohi Akhara gets a portion including the Ram Chabutra and Sita Raso. Muslims get the leftovers. No defined area is assigned to them. Justice Dharam Veer Sharma rejected the Muslims’ case in toto.

Disturbing logic

When the appeals came up for admission on May 9, 2011, Justices Aftab Alam and R.M. Lodha found the judgment “strange”. None had asked for the partition. How did that Bench get over the admitted fact of the fraud on December 22, 1949? Justices Agarwal and Sharma accepting the fiction that there existed a Ram temple which Mir Baqi destroyed to build the Babri Masjid in 1528 and upholding the primacy to the Hindu faith over the law of the land is clear breach of their oath of office which judges of the High Courts and the Supreme Court are sworn to take: “to uphold the law”. They held that “the rule of adverse possession is not applicable according to Hindu law”. They held also: “Once we find that by way of faith and traditions, Hindus have been worshipping the place of birth of Lord Rama at the site in dispute, we have no reason but to hold in a matter relating to such a kind of historical event that for all practical purposes, this is the place of birth of Lord Rama.”

This approach inspired Justices Agarwal and Sharma’s deep excursion into the past, beginning with Mohammed bin Qasim’s invasion in 712. A litany of “Muslim” outrages follows. “Attack, demolition and construction of mosques and madarsas in place of temples and religious Institutions had taken place for the last about 1100 years,” Justice Sharma. This is a disturbing logic. Was the demolition of the Babri Masjid in justified retaliation to past wrongs?

The High Court flouted also a unanimous ruling of a five-judge Bench of the Supreme Court. The Babri Masjid was demolished on December 6, 1992. Parliament enacted the Acquisition of Certain Area at Ayodhya Act, 1993. On January 7, 1993, the President sought the Supreme Court’s Advisory Opinion. Section 4(3) of the Act abated all pending suits in respect of the masjid. This was struck down by the five judges unanimously on the ground that it wiped out the Muslims’ case on adverse possession for over 400 years, assuming a temple had stood there earlier. The court declined to give the Advisory Opinion.

Yet, the Full Bench of the Allahabad High Court wilfully flouted this ruling. The President’s question rejected by the Supreme Court read: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid … in the area on which the structure stood?” ( Ismail Faruqui & Ors. vs. Union of India & Ors. [1994] 6 SCC 360, page 385). Nonetheless, the High Court ordered the Archaeological Survey of India (ASI) on March 5, 2003, to answer this very question in these terms: “Whether there was any temple/structure which was demolished and mosque was constructed on the disputed site?” On that single ground of defiance alone, the High Court’s judgments invite a clear rejection by the Supreme Court. The case can then proceed, if at all, strictly on the facts and the law.

‘Miscreants brought the mosque down’

However, the Supreme Court’s unanimity ended on Section 4(3). On other basic issues, it was divided (5-3). One of the leaders of the Supreme Court Bar has said repeatedly that it split on communal lines. There was more to it than that. The majority judgment delivered by Justice J.S. Verma on behalf of himself and Chief Justice of India M.N. Venkatachaliah and Justice G.N. Ray is disastrous. It is rich in quotes from the Vedas, obiter of no relevance, with laboured attempts to prove, incredibly, that the demolition of the masjid harmed Hindus as much as the Muslims, and what is more, that the mosque was of lesser consequence to Muslims than a Ram temple is to Hindus. No such temple existed on October 24,1994; only the idols illegally, immorally planted in a functioning masjid on December 22-23, 1949. Justice Verma knew very well that the pending suits, now revived, would be heard by the High Court, which would be influenced by his remarks. He was quoted profusely. The Act of 1993 affects the rights of both communities and not merely those of the Muslim community (page 407), he held: “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 entire 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 Bhartiya 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.…

“The miscreants who demolished the mosque are suspected to be persons professing to practise the Hindu religion. The Hindu community must, therefore, bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold.” How laboured can you get? (paragraphs 53 and 54.) But at paragraph 6, he admits that “around midday a crowd addressed by leaders of BJP, VHP [Vishwa Hindu Parishad], etc., climbed the Ram Janma Bhumi-Babri Masjid (RJM-BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground.” The ones put on trial for conspiracy to commit the crime were leaders such as Advani and M.M. Joshi, not “miscreants”.

Laboured obiter

Justice Verma seeks to prove that while the site of the idol is important, the site of the mosque is not. Read this: “While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion [read: Ram temple at Ayodhya] so as to form an essential or integral part hereof. Places of worship of any religion having particular significance for that religion, to make it an existential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. … 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 open” (paragraphs 78 and 82).

This is both irrelevant and factually wrong. In issue was the demolition of a particular mosque, a historic one. It is cruel to tell those who prayed in it that they can go anywhere elsewhere. How relevant is all this to the facts of this particular case? Since the objection to acquisition of a house of worship of any community is covered by precedent, Justice Verma’s additional comments are pure obiter. But he laboured hard to expatiate on his obiter at length. It was to prove that the Babri Masjid was expendable; the site claimed for the Ram temple was not. Never mind that both Advani and Vajpayee accepted that none can pin-point the site of Ram’s birth. His remarks proved very useful to the Hindu side in the High Court which derailed a judicial process of years by ordering the excavation of the site.

Core question

The case concerned adverse possession—a mosque standing for over 400 years. Justice Verma himself recognised: “The rival claims to the disputed area which were to be adjudicated in the pending suits can no longer be determined therein as a result of the abatement of the suits. This also results in extinction of the several defences raised by the Muslim community including that of adverse possession of the disputed area for over 400 years since construction of the mosque there in 1528 AD by Mir Baqi. It is clear from the issues framed in those suits that the core question for determination in the suits is not covered by the reference made, and it also does not include therein the defences raised by the Muslim community.” He recognised that possession was “the core question”.

Justice Verma’s observations on counsel are a giveaway. They reveal more than he intended. “It was particularly heartening to find that the cause of the Muslim community was forcefully advocated essentially by the members of the Bar belonging to other communities” (paragraph 88). This was surely not the first instance of a suitor of one religion being represented in court by a lawyer of another. Kapil Sibal, Rajeev Dhawan and Dushyant Dave will not find those remarks flattering or even pleasant. The best research which supports the Muslims’ case has been done by non-Muslims. This is not a Hindu-Muslim question. It is a question of survival of secularism.

Chief Justice Venkatachaliah’s record is pathetic. He shut his eyes to the peril facing the Masjid despite warnings by the Attorney General, Milon Banerjee. This writer has documented how his persistent indifference facilitated its demolition (A.G. Noorani; The Babri Masjid Question: 1528-2013, Tulika Books, Volume 1, pages 408-415).

On October 24, 1994, he held Uttar Pradesh Chief Minister Kalyan Singh guilty of contempt of court, nearly five years after the offence. For this grave offence he was punished heavily: “A token imprisonment of one day” and a fine of Rs.2,000. The Chief Justice of India upheld the majesty of the law—on the eve of his retirement ( Mohammed Aslam vs. Union of India [1994] 6 SCXC at 456). A week after retirement, he said on October 31, 1994: “Secularism cannot mean anti-majority.” Justice G.N. Ray concurred in his judgment. Justices A.M. Ahmadi and S.P. Bharucha strongly dissented from the three. The BJP government made Venkatachaliah Chairman of its bogus Constitution Review Committee. No one cites its report.

Dushyant Dave was surely right in submitting, on December 5, 2017, that a seven-judge bench was necessary to decide the appeal; also, the court cannot be indifferent to the consequences of its decision in a matter like this. M.C. Setalvad opined on the Golakh Nath case that it was “a political judgment” which “paved the way for political moves which may result in fading the Supreme Court, so as to alter its complexion”. This was written in 1970 ( My Life, page 588). It came true in April 1973 when three most senior judges were superseded in the appointment of the Chief Justice of India. Nearly 45 years later, the court has not fully recovered from that dastardly blow.

The U.S. Supreme Court’s decision in the Dred Scott case triggered off the Civil War ( Dred Scott vs Sandford; 18 Howard 393; 15 L. Ed. 691 [1857]) A black slave was taken by his master to Illinois where slavery was forbidden. He was taken to an area in Louisiana where also slavery was forbidden by the historic Missouri Compromise. He sued for his freedom. The Supreme Court rejected his claim upholding his owner’s claim to “protection of private property”. The Missouri Compromise was held to be unconstitutional.

“There was still hope that American forbearance and statesmanship would prove equal to finding some compromise between the angry forces that were being aroused by the slave issue. That hope vanished when the Supreme Court held that the Constitution would allow no compromise about the existence of slavery in the territories. Chief Justice Taney had attempted to forestall the anticipated verdict of coming elections—the verdict that came with the election of 1860. Now the weary and weather-beaten old Chief Justice was overmastered by the violence of forces that he had himself turned away from compromise in legislative halls and had hurried toward war” (Robert H. Jackson, The Struggle for Judicial Supremacy, page 327).

Questions before the court

It is hard to understand why Chief Justice Dipak Misra took umbrage at the three counsels’ move to withdraw from the case (“shock and surprise”). No aspersion was cast against the judges. They objected to the procedure; like asking, on reasonable grounds, a judge to recuse himself from a case, counsel’s right of withdrawal from a case is well established (see box on page 36). In 1954, A.S.R. Chari withdrew from court in protest at Justice S.T. Desai’s conduct of the trial in a libel case by Devdas Gandhi, editor of The Hindustan Times, against R.K. Karanjia, editor of Blitz, whom he was defending.

What the Supreme Court of India might consider seriously is whether it should proceed with the appeals at all after quashing the weird partitioning judgment of the Allahabad High Court, rejecting decisively its view that faith prevails over the law and that any object worshipped becomes an object of legal protection.

Wrong turn in 1990

The case took an altogether wrong turn in 1990. Manoj Mitta, then Lucknow correspondent of The Times of India, reported in the issue of June 25, 1990, on the unique course which the litigation had taken. He doubted whether it would lead to a solution of the tangle. He wrote: “Several of the 43 issues framed by the court on 25 May 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 any portion of the property in suit was used as a place of worship by the Hindus immediately prior to the construction of the building in question? Whether the building has been constructed on the site of an alleged Hindu temple after demolishing the same? If so, its effect?”

Justices S.C. Mathur, Brijesh Kumar and S.H.A. Raza of the High Court were seized of the case. In 1994, the Supreme Court rejected this approach. In 2003, the High Court persisted in its old course. By then Justice V.R. Krishna Iyer had angrily declaimed, on November 10, 1989: “The judiciary will be described as the villain of the piece.” In his view it lacked the guts to face the issue ( The Times of India, November 11, 1989). A year later, the Special Bench of the High Court remarked: “It is doubtful that some of the questions involved in the case are soluble by the judicial process” ( The Hindu, November 8, 1990).

Courts can only try cases of a “civil nature” and the Evidence Act severely restricts the kind of expert evidence admissible in a court of law (Sections 45-49).

When after the demolition of the mosque P.V. Narasimha Rao toyed with the idea of seeking a verdict based on ancient history and made a reference to the Supreme Court, the country’s most highly respected lawyer, N.A. Palkhivala, subjected it to a scathing and detailed critique which has been vindicated by the Allahabad High Court (see box).

Even 25 years after the crime of demolition the criminal proceedings have gone nowhere. The Supreme Court should pause and ask itself whether it would go into history as recounted by the High Court or base its judgment strictly on the issues of 400 years’ possession and the conversion forcibly of a mosque into a temple on December 22, 1949.

More importantly, it might ask itself what the impact of any judgment would be. Will Narendra Modi implement a judgment that upholds the Muslims’ case and rebuild the mosque? If the Hindu case is upheld, as it was by the Allahabad High Court, Muslims will acquiesce in it, but, only in bitterness and helplessness. For them the Supreme Court is not only the court of last resort but the very last resort. They have received a raw deal at every stage in a judicial process in this case which has now been reduced to a juridical and moral wreck after the repeated abuses of the judicial process. As the great Judge Benjamin Cardozo wrote: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” The record is depressing. It is also instructive.

Incontrovertible official documents testify to the existence of a functioning mosque as of December 22, 1949. It was converted into a temple by force and deceit, sanctified by court ruling over two decades, and demolished on December 6, 1992. The then Union Home Secretary, Madhav Godbole 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 the 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” ( Unfinished Innings, page 406).

Spare a thought. Right now we are a nation in which, to use learned Learned Hand’s words, the spirit of moderation is gone. Someday, when the passions have subsided if ever any temple is built on the debris of a mosque, the fruit of crime, it will present to our great nation a spectacle altogether different from that presented by the magnificent temples that abound throughout the country presenting the true face of the noble faith of Hinduism, its ethics, history and culture. Will the proposed Ram temple be an inspiration or a taunt? And what will visiting tourists make of it? Indeed, what will the world make of it?

On the shoulders of the judges of the Supreme Court lies an enviable burden—the exercise of judicial statesmanship. To quote Cardozo again, “there is no guarantee of justice except the personality of the judge.”

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