(Mail Today, 20 September 2010)
by Rajeev Dhavan
IN 1528 or so, the Babri Masjid was constructed. Controversies about it erupted in the 19th century. On January 29, 1885, Mahant Raghubar Das filed Suit 61/280 as the Mahant of Ramjanmasthan. On December 24, 1885, sub judge Pandit Hari Kishan favoured the Hindu claim without granting relief. On March 18, 1886, on appeal district judge Chamier denied relief and commented, “It was most unfortunate that a Masjid has been built on land held sacred by the Hindus, but as that event occurred 356 years ago, it was too late to remedy the grievance.”
An order to maintain the status quo was made. Chamier’s comment that the Masjid was built on sacral Hindu lands was without foundation. But his judgment denying the Hindu claim is final under our Constitution.
In the 1940’s, after a Sunni- Shia legal dispute over the Masjid, which the Sunnis won, there was little scope for controversy. That decision also became final.
Chronology
The new dispute is the product of mischief. On December 22- 23, 1949, idols supposedly found their way into the Masjid! No one claimed credit. It ill becomes a believer to tell lies in the name of the Lord and not own up to the ‘ miracle’. The first two suits for the Hindus ( Gopal Singh Visharad and Param Hansa ( 1950)) were for worshipping the miraculous ‘ idols’ and preventing their removal. These were symbolic litigations which were forgotten about. In 1959, the Nirmohi Akhara made claims to the possession and delivery of the property. The Muslim Sunni Board had no choice but to assert their claim and title to the site. It was only in 1989 that Justice Deoki Nandan’s suit tried to expand the issues into claims of divinity, sentiment and history. The Param Hansa suit was withdrawn when Justice Deoki Nandan died.
These issues would have died down. Political resurrection came when the BJP unfurled the Babri campaign. More miracles were in the offing. Eventually, in 1986, a lower court order was passed to open the gates enclosing the idols. Miraculously, they were opened within minutes of passing the order.
At the time, Rajiv Gandhi was flirting with the Muslim vote over Shah Banu’s case but wanted the Hindu vote also.
While the Congress dithered, the BJP seized the moment. The Advani and Joshi yatras culminated in the destruction of the Babri Masjid on December 6, 1992. That day India’s secularism suffered a blow, denting its reputation throughout the world.
What followed was mayhem— mostly against the Muslims — using the power of the State. Justice Sri Krishna records this for Mumbai. The Supreme Court’s judgment of 1994 ordered status quo; allowing Hindu worship on the insulting grounds that Muslims can pray anywhere, even in the open! Hindus were also promised the return of surrounding acquired Hindu land.
Between 1994 and 2010, nothing should have happened. In 1995, Kalyan Singh garnered much political capital after being imprisoned for contempt by the Supreme Court for flouting its orders. On February 3, 1993, Vajpayee decried the court’s intervention as this was a matter of faith. The pressure was maintained.
After BJP’s hawala fiasco was quelled, between 2000 and 2002, a new campaign found notoriety.
On December 6, 2000, the Bajrang Dal wanted the ‘ Babri destruction’ day to be called shourya diwas ( gallantry) day.
The next day, Vajpayee seemed to suggest a Hindu temple had to be built. Vajpayee’s Kumarakom musings declared him to be, first and foremost, a sewak . The Kumbh Mela was chosen as the stage to gather the Parivar at the Dharam Sansad of January 19- 22, 2001 amidst protests by the Shankaracharya and others.
Prime Minister Vajpayee was threatened with an ultimatum on March 27, 2001, calling for the temple’s immediate construction, with ceremonies earmarked for September- October, collective jaypayajnas from November and a handing over of land by Mahashivratri on March 12, 2002.
The Parivar made frenetic initiatives to excite everyone, planning Ram sankalp raths ( Ram chariots) and the like. On March 13- 15, 2002, the BJP ( supported by its attorney general Soli Sorabji who had earlier appeared for Muslim groups!) moved the Supreme Court to build on the land and, perforce, upset the 1994 status quo.
Verdict
The Supreme Court declined.
Throughout, the Sangh Parivar has been relentless — treating the Liberhan Commission and court proceedings as side shows.
Meanwhile, the BJP changed tracks to lose an election on their slogan that ‘ India was shining’. Recently, the Lucknow Bench has asked the parties to negotiate before it pronounces its final judgment on September 24. Earlier, attempts were made by Rajiv Gandhi for a settlement between the VHP and the AIBMAC in 1989, which collapsed with the VHP churlishly saying in an intergenerational collective damnation of all Muslims, “ We ask for only three shrines out of thousands destroyed during the Mughal period.” In this, and further negotiations under Narsimha Rao in 1991- 2, the Muslims were conciliatory and asked for proof that this was indeed, the birthplace of Lord Ram. This proof was not forthcoming. Vajpayee as PM created a cell to assist a settlement on October 11, 2002. On October 17, 2002 the VHP stormed the temple.
The Lucknow Court has ordered a further negotiation. Why? Has the judgment been leaked? Are the judges afraid of the consequences of their own judgment? The atmosphere is getting charged. Little may come out of the last minute negotiations.
Muslims do not want to surrender to the Hindu juggernaut of the Sangh Parivar and succumb under threat of violence. Ayodhya has helped the BJP before and is tempting their lack of statesmanship again. Does the Sangh Parivar’s calm suggest that they know the result? In 1991, Parliament arbitrated all other claims by passing the Places of Worship ( Special Provisions) Act, 1991, to provide, with respect to all religious places, a status quo as on August 15, 1947. But, it did not have the courage to include Ayodhya.
The issues before the Court are both simple and complex. In one sense, it is more than a title case and a plea for Hindu prayer.
That the title lies with the Sunnis is beyond dispute. The Hindu claim was rejected in 1885, just as the Muslim claim to the Shahid Ganj Mosque was lost to the Sikhs by a Privy Council decision in 1940 on the grounds that an earlier decision in 1855 was final; and too much time had passed since 1722! Applying these principles from the Shahid Ganj case to the Babri Masjid, the Sangh Parivar’s legal case should fail.
Calm
Many loose issues have been read into the Babri case, based on historical titles, the Muslim destruction of a Hindu temple, the birthplace of Lord Ram, which are not legally relevant to the right to title or prayer. The title vests with the Muslims.
Hindu prayer is of recent origin based on court orders. The Bench has one Muslim and two Hindu judges. It is never a question of mathematics. But, a split decision will undermine the result.
The BJP White Paper of 1993 holds that these mosques were created by political conquest and humiliation. It also states that “ the legal battle frustrates the Hindus and highlights the truth admitted by the judiciary that the issue is beyond the judicial domain”. This implies a willingness to ignore legal decisions and resort to violence and threats.
Whichever way the Lucknow decision goes, on appeal the Supreme Court will grant a status quo. That is another reason to stay calm.
The writer is a Supreme Court lawyer
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