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  COVER STORY Muslims wronged
 MUSLIMS OFFER PRAYERS at a mosque in Allahabad on October 1, a day after the verdict. THE judgments delivered by the Lucknow Bench of the Allahabad High Court on September 30 on the Babri Masjid cases not only flagrantly violate the law and the evidence but a binding unanimous judgment of the Supreme Court on the Babri Masjid case itself ( M. Ismail Faruqui and Others vs Union of India and Others (1994) 6 Sec 360). It sanctified the conversion of a historic mosque, which had stood for 500 years, into a temple. The country showed maturity by receiving the judgments with calm and dignity despite an obscene attempt by some members of the Bharatiya Janata Party to demand instant Muslim submission to the wrong, a fact which was noted pointedly by a distinguished political scientist on television where, for the most part, loud ignorant anchors had a field day with guests no better-equipped. Stability is important in nation building. As important is justice to all. On the Babri Masjid, for 60 years from 1950 to 2010, Muslims have been woefully wronged by every single court ruling, including that of the Supreme Court after the demolition of the mosque on December 6, 1992. One of the leaders of the Bar remarked more than once that the Bench of the Supreme Court that heard the case split along communal lines. On one point all the three judges of the Lucknow Bench – Justices D.V. Sharma, Sudhir Agarwal and S.U. Khan – were in remarkable and laudatory agreement – idols of Ram were placed inside the mosque on the night of December 22-23, 1949. The Rashtriya Swayamsewak Sangh's Organiser of March 29, 1987, said they “miraculously appeared there”. The BJP's White Paper on Ayodhya said they had “appeared” there. L.K. Advani used the same expression. The court has confirmed a truth which was known to all and confirmed the Parivar's contempt for the truth. But the three judges do not realise the legal implications of the truth they themselves acknowledged. Here are some incontrovertible and uncontroverted official documents: 1. Two reports dated 10 and 23, December 1948, by the Inspector of Waqfs, Mohammed Ibrahim, after visits to the Babri mosque. He recorded the harassment and stoning of the namazis going to the mosque. Yet prayers continued to be offered just before dawn and on Fridays (Chapter IV, Doc. 5). 2. Official support to an application by Hindus in 1949 to build a Ram temple on the Chabutra near the mosque. The City Magistrate's Report of October 10, 1949, recorded: ‘Mosque and temple are situated side by side and both Hindus and Muslims perform their rights and religious ceremonies…. The Hindu population is very keen to have a nice temple at the place where Bhagwan Rama Chandra Ji was born. The land where the temple is to be erected is of Nazul' (Chapter IV, Doc. 6). 3. 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 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. Therefore, it is written and filed (Chapter V, Doc. 2). 4. Radio message on December 23, 1949, by District Magistrate K.K. Nayar to the Chief Minister, Chief Secretary and 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” (Chapter V, Doc. 3). 5. December 26, 1949, Nayar to Chief Secretary: “Installation of the idol was carried out in the night between 22 and 23 instant” (Chapter V, Doc. 5). 6. Ramchandra Das Paramhansa's admission to The New York Times on December 22, 1991, that he had installed the idol (Chapter V, Doc. 16). 7. Prime Minister Jawaharlal Nehru's wire and letters to Chief Minister G.B. Pant (Chapter V, Doc. 18). 8. Deputy Prime Minister Vallabhbhai Patel's letter to Pant on January 9, 1950 (Chapter V, Doc. 19). 9. Akshaya Brahmachari's letters and memorandum to Home Minister Lal Bahadur Shastri (Chapter V, Doc. 21). 10. The Imam of the Babri Masjid, Abdul Ghafar's interview in 1987 (Chapter V, Doc. 11). 11. Written statement in court by the State of Uttar Pradesh, signed by Deputy Commissioner, Faizabad, J.N. Ugra, on April 25, 1950 (Chapter V, Doc.13). 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.” From July to September 1949, there were efforts to build a Ram temple on the chabutra (platform) outside the mosque but within its complex. The City Magistrate, Faizabad, went to the spot on October 10, 1949, and submitted a favourable report. Abdul Ghafar, the imam of the mosque, 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). Litigation in the 19th century for permission to build a temple was confined to the chabutra – not the mosque (1883-1886). The Gandhian Akshaya Brahmachari's detailed memorandum to Lal Bahadur Shastri recorded the campaign on the capture of the mosque that was mounted in November 1949: “There is terror in the hearts of the Muslims of Faizabad.” The law is not impotent in such cases. Sections 295 and 297 of the Penal Code make the acts offences in law. Section 145 of the Criminal Procedure Code (CrPC) of 1898 empowers 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. Markandey Singh, Magistrate First Class, ordered the attachment of the “said buildings” and appointed Priya Dutt Ram, Chairman of the Municipal Board, as “receiver” of the mosque. This was on December 29, 1949. He took charge on January 5, 1950, and submitted a scheme. On January 19, 1950, a Civil Judge, Bir Singh, issued an injunction restraining removal of the idols from the mosque and from interfering with the puja carried on in the mosque since December 23, 1949. On April 26, 1955, the Allahabad High Court confirmed the injunctions. Losing battle The conversion of a mosque into a temple was now complete. The Muslims lost, and were fated to lose, every round in the battles in the courts of justice for correction of the wrong perpetrated on December 22-23, 1949. Contrast this with the order of the Sub-Divisional Magistrate, Parliament Street, New Delhi, A.G. Cutting, of February 7, 1972, in The State vs Sadiq Ali and Others and S.D. Sharma and Others under Section 145. He ordered restoration of possession of 7 Jantar Mantar Road (Congress House) in New Delhi to Congress (O). Not because it was the ‘real' Congress but because it had been forcibly dispossessed by Congress (R) on November 13, 1971. That order was also made under Section 145 of the CrPC. A similar order should have been made in the Babri Masjid case in 1949. The contrast is glaring. As Magistrate Cutting said, the Congress (O)'s men “were dispossessed. They are therefore entitled to be put back into possession until they are evicted from the said premises by an order of a competent court” (in a regular civil suit on title).  MARCH 2002: A caretaker inspecting the bricks with "Shri Ram" inscribed on them piled up at the VHP office near the disputed site. The three lakh bricks, meant for the proposed Ram temple, came from villages across the country. In the Ayodhya case, the Receiver's scheme, predictably, said “the most important item of management is the maintenance of Bhog and Puja in the condition in which it was carried on when I took over charge”. There were to be at least three pujaris who “should be allowed free access” to the installed idols. Under the scheme, Muslims were altogether forbidden to pray in the mosque; Hindus were permitted to offer puja and have darshan of the idols from a side gate and make offering through four pujaris employed by the Receiver who was appointed by the Magistrate. Civil suits on title were filed by the parties which were decided on September 30, 2010. The next round was on January 25, 1986, when a lawyer filed an application for removal of restrictions on the puja. On February 1, 1986, District Judge K.M. Pandey ordered the opening of the locks after 45 minutes' hearing. The Muslims were not impleaded in the application and were not heard by the judge. On January 3, 1986, the Lucknow Bench of the High Court ordered maintenance of the status quo. The next step was the demolition of the Babri Masjid on December 6, 1992. On January 7, 1993, the President promulgated the “Acquisition of Central Area at Ayodhya Ordinance” acquiring the site of the mosque – later enacted as an Act of Parliament and asked the Supreme Court for its advisory opinion on this question: “Whether a Hindu Temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?” Fruit of crime The demolition squad of the so-called kar sevaks had built a temporary structure after the demolition and kept the idols there. On December 9, West Bengal Chief Minister Jyoti Basu asked the Centre to demolish this fruit of crime. The Union Home Secretary Madhav Godbole refused to pray there. “God could not reside in that temple, the construction of which was associated with so much deceit and wanton violence” ( Unfurnished Innings, pages 406-407). Alarmed at the sheer absurdity of the President's query to the Supreme Court, the country's foremost lawyer N.A. Palkhivala wrote a devastating critique in The Times of India. It has acquired added relevance after the judgment of September 30. He wrote: “It is to my mind absurd to suggest that the highest Court in the country should be asked to decide questions 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 its demolition. “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 Babur. 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…. “Archaeology is the study of the art, customs and beliefs of ancient times. It can afford a ground for 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?” Palkhivala was vindicated by the Supreme Court, while his warnings have been proved all too sound now by the Lucknow Bench. Presidential reference A five-member Bench of the Supreme Court – Justices M.N. Venkatachaliah, J.S. Verma and G.N. Ray in the majority – upheld the Act, bar one provision which abated the civil suits in the High Court. Justices A.M. Ahmadi and S.P. Bharucha held the entire Act to be void. All agreed that the Act and the reference for an advisory opinion were an integral whole. But while Justice Verma, who spoke for the majority, belittled the moral and legal significance of the mosque's demolition, an offence in law, and did so as judges tend to do in high-flown rhetoric, Justice Bharucha, who spoke for the minority, reckoned with the crime fully and, unlike the majority, refused to perpetuate the situation it had created. Section 7 (2) of the Act asked the government to “ensure that the position existing before the commencement of this Act … is maintained”. Justice Verma ruled shockingly that this affected both communities equally since the Muslims had “not been offering worship at any place” there after December 1949 – a right they had only lost by deceit and force. Justice Bharucha subjected this logic to deserved and withering scorn. However – and this is very relevant to the Lucknow Bench's ruling – the judges unanimously ruled that Section 4(3), which abated the civil suits, was void. Why? Because it was one-sided and deprived the Muslims of the defence valid in law that a 500-year-old mosque by sheer adverse possession extinguished any claims to title based on history, real or imagined. This is what Justice Verma said: “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 A.D. by Mir Baqi. Ostensibly the alternate dispute resolution mechanism adopted is that of a simultaneous Reference made the same day under Article 143(1) of the Constitution to this Court for decision of the question referred. 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. It is also clear that the answer to the question referred, whatever it may be, will not lead to the answer of the core question for determination in the pending suits and it will not, by itself, resolve the long-standing dispute relating to the disputed area. Reference made under Article 143(1) cannot, therefore, be treated as an effective alternate dispute-resolution mechanism in substitution of the pending suits which are abated by Section 4(3) of the Act…. There can be no doubt, in these circumstances, that the Special Reference made under Article 143(1) of the Constitution cannot be construed as an effective alternative dispute-resolution mechanism to permit substitution of the pending suits and legal proceedings by the mode adopted of making this Reference. In our opinion, this fact alone is sufficient to invalidate sub-section (3) of Section 4 of the Act.” While Justice Bharucha said: “The provisions of Section 4 of the Act, inasmuch as they deprive the Sunni Waqf Board and the Muslim community of the right to plead and establish adverse possession as aforesaid and restrict the redress of their grievance in respect of the disputed site to the answer to the limited question posed by the Reference and to negotiations subsequent thereto, and the provisions of Section 3 of the Act, which vest the whole bundle of property and rights in the Central government to achieve this purpose, offend the principle of secularism, which is part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.” He added: “The Act and the Reference, as stated hereinabove, favour one community and disfavour another; the purpose of the Reference is, therefore, opposed to secularism and is unconstitutional.” He pointed out another flaw. “The Court being ill-equipped to examine and evaluate such material (on archaeology and history) it would have to appoint experts in the fields to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides….” The Supreme Court gave this unanimous ruling on October 24, 1994. On March 5, 2003, the Allahabad High Court ordered excavation of the land and ruled that it did not violate the Supreme Court judgment. Why? Because “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”. But this was the very issue which had been referred by the President to the Supreme Court for its advisory opinion and the Court declined to answer it because of its irrelevance. The issue was whether adverse possession by the mosque extinguished other titles. The excavation order revived this irrelevant issue in breach of the Supreme Court judgment. The rest followed inexorably until September 30, 2010. The Court's order was criticised by archaeologists of the highest distinction in a statement on March 10, 2003. The task of excavation was assigned to a controversial agency. The Archaeological Survey of India's report has been widely criticised (vide Ayodhya: Archaeology After Excavation by D. Mandal and Shereen Ratnagar, Tulika Books, 2007). In his judgment on the land acquisition case, delivered on December 11, 1992, Justice S.H.A. Raza of the Allahabad High Court rightly said that an “article of faith cannot be stretched to such an extent which threatens the Rule of Law. The contention that faith is beyond the jurisdiction of the Court is centred around the application of theocratic ideas”. Still less can the faith of one community become the law of the land by a judicial ruling because it happens to be the majority community. But what if judges themselves rely on their own religious faith in their judicial orders? Justice D.V. Sharma's remarks on Ram and “the spirit of divine” in this context are eloquent enough. Courts can try only suits of a “civil nature” (Section 9 of the Civil Procedure Code) in matters of faith. Remember the Evidence Act permits expert evidence only on a few limited matters (Sections 45 to 50). History and archaeology are not among them. The Act itself is misread by Justice S.U. Khan, who held that “both the parties have failed to prove commencement of their title. Hence by virtue of Section 110 of the Evidence Act, both are held to be joint title holders on the basis of joint possession.” Section 110 says no such thing. It says, on the contrary, that “when the question is whether any person is owner of anything of which he is shown to be in possession of, the burden of proving that he is not the owner is on the person who affirms that he is not the owner” – in this case, the Sangh Parivar vis-a-vis the Babri Masjid. The Supreme Court has held that “a presumption of an origin in lawful title could be drawn... in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming”. The longer the possession, the stronger the presumption. (1991 Supp (2), SCC 228 at pages 243-244). Records of the 19th century litigation disprove Justice Khan's inference of “joint possession”. From such errors flow the bizarre order of a tripartite partition, which the media and others have so readily lapped up as an act of “judicial statesmanship”. The record since December 23, 1949, shows the judgment of September 30, 2010, to be a crowning act on consistent judicial injustices to Muslims in 1950, 1955, 1986 and 1994. In the Shahidganj masjid case, there was incontrovertible proof of a 1722 waqf (trust) to build a mosque. But it came under the possession of Sikhs after 1762. In the 20th century from the District Court, the High Court of Lahore and the Privy Council ruled against the Muslims on the ground of adverse possession. The Premier of Punjab Sikander Hyat Khan rejected pleas for legislation to overturn the verdict. Jinnah supported him fully. The mosque, now a Sikh gurdwara, still stands in Lahore undemolished. Calm has been preserved, creditably, but the pain inflicted on Muslims is not concealed. This is not how a secular edifice is built. It was left to Mohammed Hashim Ansari, the oldest living petitioner, to express the anguish, “ Masjid bahut banegi, lekin desh nahi banenge” (Many more mosques will be built, but the nation will not be built this way). The Supreme Court can prove him wrong. Those who rushed to acclaim the order of September 30 revealed worse than ignorance. Their enthusiasm reflected indifference to right and wrong. We are not an island unto ourselves. What impression of our judiciary will courts elsewhere form?
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Wednesday, October 6, 2010
Muslims wronged - By A. G. Noorani - FRONTLINE, Chennai
Muslim claim on Babri Masjid is akin to their claim on their own Indian identity - By Ghulam Muhammed
Wednesday, October 06, 2010
Muslim claim on Babri Masjid is akin to their claim on their own Indian identity.
Peace without justice can never be a lasting and enduring peace. The brief before Allahabad High Court was that of a title suit on Babri Masjid property. The judges converted themselves into some kind of arbitration panel, without any reference to the original plaints. And it is all done in the name of justice and peace. It would be shortsighted to accept their convoluted verdict and feel that they have buried the Babri Masjid for all time to come. Nothing will be that far from the actual reality at ground level.
The call for peace and negotiation from the Sangh Parivar is nothing but an open black mail threat to accept their terms or else. Muslims have been at the receiving end in India's last 63 years and their back is against the wall. Let India not become an extension of Afghanistan and Pakistan.
Muslim claim on Babri Masjid is akin to their claim on their own Indian identity. All secular people should not succumb to the Sangh Parivar pressure and rogue tactics and try to find solution in the mirage of a court judgment flawed so thoroughly as to be a blot on the name of justice.
Come down to the cow belt land and you will see the 'peace' that they seek is nothing but a mad man's dream. Here land is more precious than deities.
Ghulam Muhammed, Mumbai
<ghulammuhammed3@gmail.com>
The call for peace and negotiation from the Sangh Parivar is nothing but an open black mail threat to accept their terms or else. Muslims have been at the receiving end in India's last 63 years and their back is against the wall. Let India not become an extension of Afghanistan and Pakistan.
Muslim claim on Babri Masjid is akin to their claim on their own Indian identity. All secular people should not succumb to the Sangh Parivar pressure and rogue tactics and try to find solution in the mirage of a court judgment flawed so thoroughly as to be a blot on the name of justice.
Come down to the cow belt land and you will see the 'peace' that they seek is nothing but a mad man's dream. Here land is more precious than deities.
Ghulam Muhammed, Mumbai
<ghulammuhammed3@gmail.com>
Saturday, October 2, 2010
English media on babri masjid title case decision - by mediacell.jih@gmail.com
English media on babri masjid title case decision
by mediacell.jih@gmail.com
The reliance of the Allahabad high court on the “faith and belief of Hindus”—that Lord Rama was born in the “area covered under the central dome of the disputed structure”—in trifurcating the Ayodhya title suit, has come in for sharp criticism across the English media.
***
The Hindu‘s deputy editor, Siddharth Varadarajan:
“The legal and political system in India stood silent witness to the crime of trespass, vandalism and expropriation [of the Babri masjid]. Eighteen years later, the country has compounded that sin by legitimising the “faith” and “belief” of those who took the law into their own hands.Former Delhi High Court judge Justice R.S. Sodhi in The Telegraph:
“The “faith and belief” that the court speaks about today acquired salience only after the Vishwa Hindu Parishad and the Bharatiya Janata Party launched a political campaign in the 1980s to “liberate” the “janmasthan.”
“Collectives in India have faith in all sorts of things but “faith” cannot become the arbiter of what is right and wrong in law. Nor can the righting of supposed historical wrongs become the basis for dispensing justice today.”
“I think this judgment is useless. It is a statuesque judgment. The court has gone into issues of belief, which it should not have. It has actually decided nothing.”Supreme Court lawyer Prashant Bhushan in The Telegraph:
“It is an absurd judgment. No legal right can be declared on the basis of people’s faith. They (the three judges) have decided on all kinds of irrelevant and emotional issues. There is no legal basis to the ruling that the disputed land should be divided into three parts.”
Jamia Milia Professor, Mukul Kesavan, in The Telegraph:
Historian Irfan Habib in The Times of India:“The court also seemed to endorse the argument from faith in a way that is certain to be controversial. Both decisions, as they stand, might set precedents that could have worrying consequences for pluralism and the freedom of religious belief and practice, especially for disputes between a religious minority and a religious majority.”
The columnist Amulya Ganguli in DNA:“The compromise judgment has come at the cost of history and facts. It is improper (for the court) to accept the Archaelogical Survey of India (ASI) report on the historical fact. Weight has been given to belief. One should be careful in historical facts.”
“The claim was based purely on a myth. Lord Ram is not a historical figure. He is a deity in the eyes of only a section of Hindus. All Hindus do not regard him with reverence. In south India, for instance, Ravan, another mythical figure who is Ram’s adversary, is more popular. In Bengal, Michael Madhusudan Dutt‘s Meghnad Badh Kavya is a literary classic extolling one of Ravan’s sons at Ram’s expense.Senior advocate Rajeev Dhavan in The Hindu:
“Whether a plot of land can be legally awarded to a community on the basis of mere religious belief. The answer will also have to include the fact that claims on behalf of Hindus are being advanced by fundamentalists, not liberals. In fact, the latter regard the movement, which was carried on with two others asserting similar rights on two mosques in Varanasi and Mathura, as a distortion of Hinduism.”
“If this panchayati solution is to be endured, the degree of Muslim entitlement should have been left intact so that the site belonged to them. The destruction of the masjid was akin to the demolition of the Buddha statues at Bamiyan in Afghanistan, and people would say that India’s secular justice was majoritarian in nature without lending dignity to India’s minority.”Constitutional expert and senior Supreme Court advocate P.P. Rao in The New Indian Express:
“It is more like a panchayat justice dividing the disputed property among the three contenders. And it is not clear how after dismissing the suit of the Sunni wakf board, one-third of the property is given to Muslims.”Former Supreme Court chief justice A.H. Ahmadi in The Indian Express:
“There is no running away from the centrality of answering who has the title. I am not sure on what basis the Sunni waqf suit has been time-barred. But if the title is not theirs, how can one-third be a masjid now, and if the title is theirs, how can two-thirds be divided? There certainly can be a compromise but that should have happened after the verdict. The verdict should not appear like a decision of a panchayat foisted forcibly on all parties.”
Ayodhya verdict - Manoj Mitta - The Times of India
Ayodhya verdict
Three days after a Ram idol was placed under the Babri Masjid's central dome, Prime Minister Jawaharlal Nehru shot off a letter to UP chief minister G B Pant directing that the mischief be undone. His reason: "A dangerous example is being set there, which will have bad consequences."
But Nehru's concerns were overridden by the local administrator, Faizabad's deputy commissioner K K Nayar. Even as he acknowledged that the installation of the idols was "an illegal act", Nayar refused to remove them from the mosque. His reasoning was that "the depth of feeling behind the movement ... should not be underestimated."
It was against the backdrop of this battle between secular and sectarian views that the first of the four title suits was filed on January 16, 1950. In allowing the idols to remain where they were placed on December 23, 1949, and in placing religious sentiment above the rule of law, the Allahabad high court verdict 60 years later seems to have preferred Nayar's position to that of Nehru.
Though thousands of pages in this verdict have been devoted to quotes from Hindu scriptures, it made little effort to examine the illegality of the 1949 act. The mischief played with the idols, in a bid to convert a masjid into a mandir, was central to the adjudication of the title suits.
Yet, the three judges on the bench, despite delivering separate judgments, adopted the common approach of treating the forcible installation of idols as a fait accompli. They did not dare question its legality or validity. This, despite the fact that the bench had, in May 2009, specially called for and placed on record the original file of the district administration that dealt with the 1949 episode.
The verdict could have been radically different had the judges mustered the courage to analyse this crucial issue. Advocate Anupam Gupta, who grilled an array of leaders on the Babri Masjid demolition before the Liberhan Commission, told TOI: "Since the title suits had derived from the installation of idols, the judges would have had to acknowledge that the Hindu claim was based on a patent illegality and that nothing said about the history of the Hindu belief prior to 1949 would have cured this illegality."
In its anxiety to be pragmatic or conciliatory, the high court also pulled its punches on the demolition of the mosque in 1992 although it was a violent interference with the subject of the title suits. While it dwelt extensively on the Hindu "bent of mind" in the context of the belief about the exact location of Ram's birthplace, the high court did not attempt any such analysis of the mentality that propelled the demolition.
As a result, in a major blow to secularism, the high court allowed the vandals of 1992 to turn into the victors of 2010. This has made a mockery of the Supreme Court's 1994 declaration while reviving the Ayodhya title suits after a two-year limbo: "The Hindu community must bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold."
Far from bearing the cross for the demolition, Hindu groups seem to have intimidated the high court into coming up with a solution that provides much cause for concern to Muslims and believers of secularism. By accepting faith as the determining factor for allotting the area under the central dome to Hindus, the system has shown no remorse to the affected community.
The high court's refusal to let the illegality of the 1949 and 1992 events have a bearing on the title suits will mean that there can be no closure to the Ayodhya dispute any time soon. Its partition scheme has ended up vindicating, however unwittingly, those very forces that had so brazenly undermined India's commitment to secularism. As jurist Tahir Mahmood puts it, "What had begun as a title suit ended up with a decree of partition. Religious beliefs and sentiments had triumphed over historical facts and legal precepts. The judicial anxiety reflected in the judgment is understandable but its legal tenability is not beyond reproach."
The consolation is that the verdict could have been worse if the judgment delivered by Justice D V Sharma, awarding the entire disputed site of 2.7 acres to Hindus, did not turn out to be a minority view on the bench. Sharma's judgment is an unabashed celebration of the fundamentalist Hindu perspective on the Babri Masjid.
The Ayodhya verdict actually fits into a pattern displayed by the Indian judiciary to suppress inconvenient facts. The Allahabad high court's failure to examine the implications of the 1949 and 1992 events is reminiscent of an infamous omission by the Supreme Court in its much touted judgment upholding Hindutva.
This ideology of Hindu hegemony received judicial approval because the Supreme Court, while equating Hindutva with the liberal ethos of Hinduism, steered clear of the fact that the term had been coined by Veer Savarkar to suggest that India belonged only to those for whom it is both birthplace and sacred land.
Thanks to this vital omission, the BJP derived much legitimacy from the SC verdict on Hindutva. It remains to be seen how, despite the restraint displayed by it for the time being, the BJP will politically leverage the verdict in the Ayodhya case. It is no coincidence that Nayar who defied Nehru's order to remove the idol from the Babri Masjid went on to become an MP of Jan Sangh, forerunner of the BJP.
But Nehru's concerns were overridden by the local administrator, Faizabad's deputy commissioner K K Nayar. Even as he acknowledged that the installation of the idols was "an illegal act", Nayar refused to remove them from the mosque. His reasoning was that "the depth of feeling behind the movement ... should not be underestimated."
It was against the backdrop of this battle between secular and sectarian views that the first of the four title suits was filed on January 16, 1950. In allowing the idols to remain where they were placed on December 23, 1949, and in placing religious sentiment above the rule of law, the Allahabad high court verdict 60 years later seems to have preferred Nayar's position to that of Nehru.
Though thousands of pages in this verdict have been devoted to quotes from Hindu scriptures, it made little effort to examine the illegality of the 1949 act. The mischief played with the idols, in a bid to convert a masjid into a mandir, was central to the adjudication of the title suits.
Yet, the three judges on the bench, despite delivering separate judgments, adopted the common approach of treating the forcible installation of idols as a fait accompli. They did not dare question its legality or validity. This, despite the fact that the bench had, in May 2009, specially called for and placed on record the original file of the district administration that dealt with the 1949 episode.
The verdict could have been radically different had the judges mustered the courage to analyse this crucial issue. Advocate Anupam Gupta, who grilled an array of leaders on the Babri Masjid demolition before the Liberhan Commission, told TOI: "Since the title suits had derived from the installation of idols, the judges would have had to acknowledge that the Hindu claim was based on a patent illegality and that nothing said about the history of the Hindu belief prior to 1949 would have cured this illegality."
In its anxiety to be pragmatic or conciliatory, the high court also pulled its punches on the demolition of the mosque in 1992 although it was a violent interference with the subject of the title suits. While it dwelt extensively on the Hindu "bent of mind" in the context of the belief about the exact location of Ram's birthplace, the high court did not attempt any such analysis of the mentality that propelled the demolition.
As a result, in a major blow to secularism, the high court allowed the vandals of 1992 to turn into the victors of 2010. This has made a mockery of the Supreme Court's 1994 declaration while reviving the Ayodhya title suits after a two-year limbo: "The Hindu community must bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold."
Far from bearing the cross for the demolition, Hindu groups seem to have intimidated the high court into coming up with a solution that provides much cause for concern to Muslims and believers of secularism. By accepting faith as the determining factor for allotting the area under the central dome to Hindus, the system has shown no remorse to the affected community.
The high court's refusal to let the illegality of the 1949 and 1992 events have a bearing on the title suits will mean that there can be no closure to the Ayodhya dispute any time soon. Its partition scheme has ended up vindicating, however unwittingly, those very forces that had so brazenly undermined India's commitment to secularism. As jurist Tahir Mahmood puts it, "What had begun as a title suit ended up with a decree of partition. Religious beliefs and sentiments had triumphed over historical facts and legal precepts. The judicial anxiety reflected in the judgment is understandable but its legal tenability is not beyond reproach."
The consolation is that the verdict could have been worse if the judgment delivered by Justice D V Sharma, awarding the entire disputed site of 2.7 acres to Hindus, did not turn out to be a minority view on the bench. Sharma's judgment is an unabashed celebration of the fundamentalist Hindu perspective on the Babri Masjid.
The Ayodhya verdict actually fits into a pattern displayed by the Indian judiciary to suppress inconvenient facts. The Allahabad high court's failure to examine the implications of the 1949 and 1992 events is reminiscent of an infamous omission by the Supreme Court in its much touted judgment upholding Hindutva.
This ideology of Hindu hegemony received judicial approval because the Supreme Court, while equating Hindutva with the liberal ethos of Hinduism, steered clear of the fact that the term had been coined by Veer Savarkar to suggest that India belonged only to those for whom it is both birthplace and sacred land.
Thanks to this vital omission, the BJP derived much legitimacy from the SC verdict on Hindutva. It remains to be seen how, despite the restraint displayed by it for the time being, the BJP will politically leverage the verdict in the Ayodhya case. It is no coincidence that Nayar who defied Nehru's order to remove the idol from the Babri Masjid went on to become an MP of Jan Sangh, forerunner of the BJP.
The verdict on Ayodhya: a historian's perspective By Romila Thapar - The Hindu
Opinion » Op-Ed
October 2, 2010
The verdict on Ayodhya: a historian's perspective
The verdict is a political judgment and reflects a decision which could as well have been taken by the state years ago. Its focus is on the possession of land and the building a new temple to replace the destroyed mosque. The problem was entangled in contemporary politics involving religious identities but also claimed to be based on historical evidence. This latter aspect has been invoked but subsequently set aside in the judgment.
The court has declared that a particular spot is where a divine or semi-divine person was born and where a new temple is to be built to commemorate the birth. This is in response to an appeal by Hindu faith and belief. Given the absence of evidence in support of the claim, such a verdict is not what one expects from a court of law. Hindus deeply revere Rama as a deity but can this support a legal decision on claims to a birth-place, possession of land and the deliberate destruction of a major historical monument to assist in acquiring the land?
The verdict claims that there was a temple of the 12th Century AD at the site which was destroyed to build the mosque — hence the legitimacy of building a new temple.
The excavations of the Archaeological Survey of India (ASI) and its readings have been fully accepted even though these have been strongly disputed by other archaeologists and historians. Since this is a matter of professional expertise on which there was a sharp difference of opinion the categorical acceptance of the one point of view, and that too in a simplistic manner, does little to build confidence in the verdict. One judge stated that he did not delve into the historical aspect since he was not a historian but went to say that history and archaeology were not absolutely essential to decide these suits! Yet what are at issue are the historicity of the claims and the historical structures of the past one millennium.
A mosque built almost 500 years ago and which was part of our cultural heritage was destroyed wilfully by a mob urged on by a political leadership. There is no mention in the summary of the verdict that this act of wanton destruction, and a crime against our heritage, should be condemned. The new temple will have its sanctum — the presumed birthplace of Rama — in the area of the debris of the mosque. Whereas the destruction of the supposed temple is condemned and becomes the justification for building a new temple, the destruction of the mosque is not, perhaps by placing it conveniently outside the purview of the case.
Has created a precedent
The verdict has created a precedent in the court of law that land can be claimed by declaring it to be the birthplace of a divine or semi-divine being worshipped by a group that defines itself as a community. There will now be many such janmasthans wherever appropriate property can be found or a required dispute manufactured. Since the deliberate destruction of historical monuments has not been condemned what is to stop people from continuing to destroy others? The legislation of 1993 against changing the status of places of worship has been, as we have seen in recent years, quite ineffective.
What happened in history, happened. It cannot be changed. But we can learn to understand what happened in its fuller context and strive to look at it on the basis of reliable evidence. We cannot change the past to justify the politics of the present. The verdict has annulled respect for history and seeks to replace history with religious faith. True reconciliation can only come when there is confidence that the law in this country bases itself not just on faith and belief, but on evidence.
(Romila Thapar is a distinguished historian of Early India.)
Ayodhya Verdict - Aditi Phadnis: Ayodhya - Lest we forget
| Aditi Phadnis: Ayodhya - Lest we forget |
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| Though religion is no longer the hot topic, the government should be on its guard |
| Aditi Phadnis / New Delhi October 02, 2010, 0:19 IST |
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Rao was a worried man. Karsewaks were massing in Ayodhya. Earlier in the week, at a meeting with Rashtriya Swayamsevak Sangh (RSS) leaders, he is believed to have said: “Mandir banega aur bhavya mandir banega (the temple will be built and it will be a grand one).” And as an afterthought, Rao added: “Lekin masjid hatana theek nahin hai (but it may not be proper to move the mosque).”
Rao had set up an Ayodhya cell in his office, headed by Naresh Chandra. In an interview to this reporter in October 1992, Chandra was strongly critical of the attempts made by a team of Jawaharlal Nehru University (JNU) professors to prove historically that Ram was not born in Ayodhya. “Progressive historians (like Romila Thapar, S Gopal and others) are more keen to present their modern, secular credentials.They want to sound superior and informed, but we find their writings opinionated and argumentative.”
The matter came to a head within two months, before Rao’s project could be realised. On December 6 that year, to India’s eternal shame, the government was unable to protect India’s secularism and the “disputed structure” was brought down by mobs while the matter was still being heard by the courts. Recalling that event, Prime Minister Manmohan Singh was uncharacteristically cutting about L K Advani’s role. “Unlike the NDA’s prime ministerial candidate, I will not be found weeping in a corner while hoodlums tear down a centuries-old mosque,” he commented witheringly last year.
This time around, when the Lucknow bench of the Allahabad High Court has given its verdict, the law-and-order management has been exemplary. Not only have there been no incidents, there is a conspicuous build-up of security forces, and “miscreants” have been punished promptly (like the two boys from Kollam, Kerala who were found to have sent incendiary text messages). There is little patience with communal forces, although a Congress government is in power again and the man who was finance minister then is prime minister now.
So what has changed between 1992 and 2010?
Obviously that was a different time, a different atmosphere. Kalyan Singh, who was chief minister at the time of the demolition, visited Ayodhya on September 16, days before the judgment. Singh tried to sound as he did in 1992: “We will not sit quietly in case the judgment goes against the Hindu claim to the disputed site but political parties must stay away from this issue,” he said at a public meeting. The 50 people who attended the meeting heard him disinterestedly and dispersed five minutes later.
The Vishva Hindu Parishad (VHP) has realised that even when in power, there are some things that a Bharatiya Janata Party-led government cannot do. On the other hand, the Gujarat government has been unapologetic about pulling the shutters down on the VHP’s business dealings. So, one major stream of Hindu mobilisation has simply been disempowered.
But if we agree that no communal incident in India is ever spontaneous, then it is also true that administrative preparedness can prevent such incidents. In this context, even the Congress organisation concedes that the credit must go to the Uttar Pradesh government headed by Mayawati. Massive police and paramilitary presence was ensured by the UP administration.
In 1992, every jai Shri Ram was captured by TV and radio, anywhere it was uttered. In 2010, when lawyers were addressing the press and claiming credit for “winning” the case, some cries of jai Shri Ram were simply muted by TV channels.
Reactions to the demolition came in March 1993, in the shape of simultaneous bomb blasts all over Mumbai. But between 1993 and 2010, the Shiv Sena has split; and post 23/11, it is a different Mumbai.
So what does it all mean? The biggest difference between 1992 and 2010 is: India has lost the appetite to shed blood over religion. It stands to reason. Hindus have become more religious. But many religious leaders — well-known ones, not some leading shady sect — are facing criminal charges ranging from sodomy to murder. Funding to religious institutions, including madarassas, is under scrutiny,
However, Sun Tsu in the Art of War sounds a warning: Do not press a desperate foe too hard. Whoever the winner or loser in Ayodhya, the government needs to remember this.
Like Jury selection, Judges for Babri Case should be chosen by the litigants on Supreme Court appeal - By Ghulam Muhammed
Sunday, October 03, 2010
Like Jury selection, Judges for Babri Case should be chosen by the litigants on Supreme Court appeal
Ayodhya Verdict as a piece of legal document is held by lawyers and judges as so much flawed when it is tested on the standards of Constitutional fundamentals. The logic and reasoning of all 3 judges smack of extra-legal consideration impacting on their judgments.
Since judges are appointed by State, which is proved to be politically motivated on one side or other, a selection method should be adopted at the next Apex level hearing of the appeal to be filed by the both litigants who should have a stake in ensuring no bias, no prejudice, no politics, no personal agenda is attributed to the selected judges. Both litigants should have the right to veto the candidature of any judge appearing before a specially paneled ‘Selection Committee’ to ensure that case should proceed with mutual trust and confidence in the judiciary. A separate process should be initiated by the Chief Justice of India, to test the bona fides of the judges on their commitment to the Constitution of India, during their past record of delivering judgments.
Since Babri Masjid/ Ram Janambhoomi, title suit is to be considered entirely on the basis of hard facts and documentation, Chief Justice should caution selected judges against inserting extra legal/ philosophical/ ideological/ religious opinions in their judgment.
All such precautions will have to be made at appeal to Supreme Court level, to ensure that such hotchpotch potpourri as presented by Allahabad High Court on Ayodhya, is not coming forth to damage the reputation of Indian Judiciary and drag Indian justice to directions ultra vires of Indian constitution.
Let India not become the laughing stock of the world that is so keenly watching, how India sizes up to the challenges of the modern world.
Ghulam Muhammed, Mumbai
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