(Frontline, 9 Oct 9, 2010)
by A.G. Noorani
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. 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).
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?" ... 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?
http://www.flonnet.com/fl2721/stories/20101022272112500.htm
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