The Invisible Lawyer
Babri Masjid case: Case coming up before SC on eve of 25th anniversary of demolition, what lies ahead?
By The Invisible Lawyers Team December 4, 2017
December 6
th, 1992, marked one of the darkest days of
Indian history which witnessed the impact of the polarisation that had
taken place within our society. On this day, prominent leaders of the
BJP including L.K. Advani flagrantly flouted the orders of the Allahabad
High Court and the Supreme Court, and brought down the Babri Masjid in a
planned and organised manner. A Lucknow Bench of Allahabad High Court
in 1989, had ordered a status quo over the disputed land. However,
despite these orders a band of karsevaks surrounded the mosque and
demolished it, thereby destroying the peace that was much required in
the communally sensitive area of Faizabad and Ayodhya. It led to
communal outrage, which further resulted in violence between the
communities.
The land occupied by the Babri Masjid has been a subject for
litigation since 1885, when Mahant Raghubar Das, the chief priest of the
Ram Janmsthan filed a civil suit when the Faizabad Deputy Commissioner
refused to let him build a temple on the land adjoining the mosque.
However, despite the constant battle for power between the two
communities, from 1951 to 1986, Faizabad and Ayodhya remained
comparatively at peace and tension free. During this time, no legal
activity was undertaken by either of the communities and the decisions
pronounced by District and High Courts, i.e. the maintenance of
status quo, prevailed. The Hindu and the Muslim communities co-existed, without any disruption. However, this changed after December 1992.
Following the demolition of the Babri Masjid, L.K.Advani and Murli
Manohar Joshi, both senior leaders from the BJP, made communally
inflammatory speeches which ultimately led to the demolition of the
mosque and violence all over the country. Criminal conspiracy charges
were brought against the leaders of the BJP but in May, 2010, the
Allahabad High Court dismissed the petition for a direction to proceed
with the conspiracy charge against L.K.Advani and others.
In September, 2010, the Allahabad High Court awarded two-thirds of
the Ayodhya site to Hindu parties, and one-third to the Waqf Board. (see
details of the litigation below) However, in May, 2011, the Allahabad
High Court verdict was stayed by the Supreme Court, directing status quo
to be maintained. The oldest litigant in this case passed away in
December, 2014.
In March, 2017, a Supreme Court bench comprising of Justices P.C.
Ghose and Rohinton Nariman posted for detailed hearing a CBI appeal
against the dropping of charges for criminal conspiracy against
L.K.Advani and Murli Manohar Joshi. While these proceedings are still
pending, the Supreme Court is due to hear the Appeal against the
judgment of the Allahabad HC on 5
th Decemeber, just one day before the 25
th anniversary of the demolition
The Supreme Court has a mammoth task ahead, to decide one of the
longest running disputes, which has historically been a volatile issue
dividing the two communities.
Fuzail Ahmad Ayyubi, Advocate-on-Record representing
respondent Haji Mehboob, provides a timeline for the Babri Masjid
dispute as it played out:
The mosque was constructed in 1528, by the nobleman Mir Baqi, at the
request of Babar, the first Moghul Emperor, hence the name Babri Masjid.
The following inscription can be found in Persian on the gate of the Mosque:
“By the command of Emperor Babar, whose justice is an edifice
reaching up to the very height of the heaven; the good-hearted Mir Baqi
built this alighting-place of angles Buvad Khair Baqi (may this
goodness last forever) the year of building made clear likewise, when I
said Buwad khair Baqi (935 A.H) (i.e. 1528)”
Though Ayodhya has been held to be the birth place of Hindu God Ram, based on the
Ramayana written by Valmiki, there was no mention of any temple being destructed for the construction of mosque, not until 19
th
century, when British Historians, based on popular local myths, started
stating the story of the demolition of a temple known to be the birth
place of the lord Ram by Mughal emperors and the subsequent construction
of a mosque. Neither do the historical texts during the reign of Babar
reflect any incident of such destruction. Thus since the mosque was
built in 1528 till early nineteenth century, undisputedly, there existed
a mosque used by Muslims for worshipping.
Legal History
The legal history of Babri Masjid begins from the construction of a “
chabutra” or
Platform (17ft x 21ft area situated on the outer enclosure of disputed
mosque) on 23.11.1857, inside the boundary wall of the Babri Masjid,
which was known as the
Janamsthan or the Birth place of Lord Shri Ram. Thereafter, in 1857, the
Nawab of Avadh declared different timings for the observance of
namaz by Muslims in the mosque and worship on the
chabutra, by the Hindus.
The first legal dispute arose in 1885, when
Mahant Raghubar
Das, the Chief Priest of Ramjanmsthan, filed a civil suit in the court
of Sub-Judge, Faizabad on 15.01.1885 seeking permission to build a
temple on the said
chabutra. Pt. Hari Kishan Singh, the Sub
Judge, rejected the plea on the ground of threat to public law and order
situation. In his consideration if a temple were allowed to be
constructed on the
chabutra, being so close to Masjid, then it would
‘lay the foundation of death and murder.’
The
Mahant then appealed to the District Court of Faizabad.
Colonel J.E.A Chamber, after an inspection of disputed land, dismissed
the appeal and held that a temple could not be built without inflaming
communal passions. Subsequently, a railing was built to separate the
chabutra from the Masjid imposing a physical boundary between both communities. In his Judgment, he observed:
“I found that the Masjid built by Emperor Babar, stands on the
border of the town of Ayodhya. It is most unfortunate that a mosque
should have been built on the land specially held sacred by the Hindus.
But, as that occurred 356 years ago, it is too late now to remedy the
grievance. All that can be done is to maintain the parties in status
quo.”
Raghubar Das, on 25.05.1886 filed his suit again which was dismissed
by the Judicial Commissioner of Oudh, who in his judgment, observed that
the plaintiff’s earlier suits have been dismissed, on the ground that
the plaintiff had no evidence to support his claim that the place
belonged to Hindus, but, while dismissing the suit he observed that:
“This spot is situated within the precinct of the grounds,
surrounding the mosque erected some 350 years ago, owing to the bigotry
and tyranny of the Emperor, who purposely chose this holy spot which
according to Hindu legend was the site of the temple. The Hindus seemed
to have very limited right of access to certain spots, within the
precincts adjoining the mosque and they have, from a series of years,
been persistently trying to increase those rights and to erect buildings
on two spots, namely Sita-Ki-Rasoi and Ramchandra –Ki- Janmabhumi.”
Afterwards, in March 1934, communal riots arose when allegedly a cow
was slaughtered by Muslims in the adjoining region of Ayodhya. The
Hindus tried to ravage the mosque and damaged it, but it was repaired by
the funds collected through the fine imposed on Hindu rioters.
In 1936, in response to an enquiry, the Commissioner of Waqf Boards
expressed, that mosque was built in 1528, by Babar, the emperor and a
Sunni Muslim.
Another litigation concerning this mosque came up in 1945, involving,
Shia and
Sunni. Both sects claimed the mosque. The local Civil Judge,
S.A Ahsan, declared in his pronouncement on 23.03.1946, that although mosque was built by Babar who was a
Sunni, yet there is evidence that it was used by both the sects.
Post partition, in December 1949, the controversy rose again and the
legal battle started. Some Hindus allegedly kept the statues of
Rama, Sita and
Laxman during the night of 22-23 December 1949 inside the mosque, thereby attracting Hindu believers to gather for sacred viewing,
Darshan, of the deity.
This incidence led to communal confrontation. Pt. Jawahar Lal Nehru,
ordered Govind Ballabh Pant, the then CM of U.P to remove the statues.
However, K.K Nayar, the DM, refused to remove the idols because he
asserted that removing the idols will flare up the communal riots.
The court decided to maintain the
status quo till the
finalisation of decision of ownership. The gates of disputed place were
locked. The Additional Magistrate of Faizabad and Ayodhya, Markendey
Singh, appointed the Chairman of Municipal Board of
Faizabad-Cum-Ayodhya, Priya Dutt Ram, as receiver, to arrange for case
of property on dispute.
Later on, Gopal Singh Vishared, a
Sanatan Hindu and an
inhabitant of the Ayodhya city, filed a suit on 16.01.1950 in the Civil
Court urging entitlement of worship, and unobstructed visit to idols and
sought a perpetual injunction, restraining the defendants from removing
the idols. The Civil Judge, V.N Chadha on 19.02.1950 granted a
temporary injunction which was later on confirmed in his judgment on
03.03.1951, where the Judge recorded it as an undisputed fact that on
the date of the suit, the idols of Lord Ram and others, did exist on the
site and that worship was being performed by Hindus, including the
plaintiff though under some restrictions put by the executive
authorities.
On behalf of UP Govt., Dy. Commissioner, Faizabad, J.N Ugra filed a written statement on 24.04.1950, stating that,
“The
property in suit is known as Babri Masjid and it has been for long time
in use, as a mosque for the purpose of worship of the Muslims. It has
not been in use as a temple of Shri Ram Chandraji.” The next para of the statement pronounced by Deputy Commissioner added that,
“On the night of 22 December 1949, the idols of Shri Ram Chandra Ji were surreptitiously and wrongly put inside.” In the paragraph 16 it added that,
“That
as a result of the said wrongful act, a situation imperiling public
peace and tranquility was created and public authorities had to
intervene in order to prevent the breach of peace and tranquility.”
Along with the suit number 2 of 1950, filed by Gopal Singh Vishared,
three more suits were filed by other parties, regarding receivership and
waqfs of site.
In 1959, Nirmohi Akhara also filed a suit for ownership of the disputed land. All those suits continued to be justified.
On April 26, 1955, Allahabad High Court, confirmed the
status quo order, issued by the Civil Judge V.N Chadha in 1950.
The Sunni Waqf Board filed their suit No. 12 on 18.12.1961 in the
court of Civil Judge Faizabad seeking help from court in declaring a
portion of Area as a public mosque, commonly known as “Babri Masjid” and
area beyond referred mosque, was a graveyard of Muslim public.
From 1951 to 1986, Faizabad and Ayodhya remained comparatively at
peace and tension free. During this time, no legal activity was
undertaken by either of the communities. During the aforesaid time of 36
years, the decisions pronounced by District and High Courts, i.e. the
maintenance of
status quo, prevailed. The Hindus continued the
Akhand Kirtan in front of mosque to ‘liberate’ the ‘Shri Ramjanmabhumi’ since 23.12.1949, without any disruption.
On 25.01.1986, an advocate Umesh Chandra Pandey, submitted a new
application within the case no. 2/1950 filed by Gopal Singh Vishared
demanding the locks to be opened and the Hindus to be allowed to worship
the idols. It was a matter of astonishment that all claimants or
defenders of case no. 2/1950, had died and case also, was barred
according to law. So, no new claimant could be entered without
permission of the court. But it had happened and without permission of
the court, the application of Umesh Chandra Pandey, was accepted under
the old case and the judiciary refused this demand on 28 January. 1989.
An appeal was then filed against the referred order, before District
Judge, K.M Pandey on 31.01.1986. Within a day of this appeal, 1.02.1986
was fixed for the final hearing. The District Judge ordered on the same
day directing the state of Uttar Pradesh, the District Magistrate and
Superintendent of Police, Faizabad to open the locks, finding them to be
“an unnecessary irritant to the applicant and other members of
Community”, and not to impose any restriction or cause hurdle in the
darshans of applicant and other members of the Hindu community.
Gates of Babri Masjid were unlocked in the presence of police
security after the pronouncement of this judgment. On 3rd February 1986,
Mohammad Hashim filed a case in High Court, seeking stay on the
aforesaid order of District Judge Faizabad. The court gave an order on
the same day to the maintenance of
status quo “as existing
today” till the further order. The Sunni Waqf Board also put a petition
on 12 May 1986, against the order of the District Judge, to open locks.
The Lucknow Bench of Allahabad High Court clubbed together all cases
pending over Mandir-Masjid dispute on 14.08.1989, and issued an interim
direction to maintain
status quo regarding the disputed property.
The leaders of VHP promised the Home Minister, Buta Singh, that they
will act upon the aforesaid directions of Lucknow Bench of Allahabad
High Court, given on 14.08.1989, to the effect that,
“Parties to the
suit shall not change the nature of property in question and ensure
that the peace and communal harmony are maintained.”
The foundation stone of Mandir was laid on 9.11.1989, quite near the Babri Masjid and
Kar Seva began, which was stopped the next day by the order of District Magistrate. The VHP claimed that
Shilanyas was
laid on the undisputed land. But it was done at plot no. 586, claimed
by Sunni Waqf Board as having been used for long as a Muslim burial
ground.
Therefore, all legal suits related with Ayodhya were allotted by
Supreme Court to Lucknow Bench of Allahbad High Court in 1989, which
ordered a status quo over the disputed land. But, despite this legal
situation, Babri Masjid was demolished on December 6, 1992.
After this, the then Prime Minister, Narsimha Rao, by the permission
of the Parliament, vide Ayodhya Ordinance 1993 which eventually became
the Acquisition of Certain Areas of Ayodhya Act, took whole of 67 acres
in its possession on 07.01.1993, on the same day, the President of India
vide the Parliament Act 143 (1) allotted the whole case to Supreme
Court but Supreme Court again sent the case to Allahabad High Court. As
according to the Indian Constitution, Supreme Court cannot put aside the
decision pronounced by High Court, while providing its own decision
with referred legal action on 24 October 1994, the Supreme Court
restricted any construction of any kind on 67 acres of land. Moreover,
it announced to maintain
status quo till the further orders.
The case remained pending further for 6 years and in 2002 Aslam
Bhoora, proceeded to the court. The court held on to its previous
decision of 24.10.1994 and on 13.03.2002 ordered to maintain
status quo.
In March 2003, Lucknow Bench of Allahabad High Court ordered
Archaeological Survey of India to dig land around the Babri Masjid site
however the resulting report was not of help.
Besides the above mentioned civil suits, several other disputes
relating to speeches and the incident of 06.12.1992 are under process in
various commissions and judicial agencies.
Lucknow Bench of Allahabad High Court, on 30.09.2010, delivered a
decision and declared that disputed land will be divided in three parts
with the portion below the central dome where the idols are kept going
to the Hindus; Nirmohi Akhara would be allotted land including
Ram chabutra and
Sita ki Rasoi and
one the third land would be allotted to Suni Waqf Board and if minor
adjustments are required, the land acquired by central government could
be allotted. After this, the judgment was criticized by different
scholars, historians, political commentators and lawyers because it was
based on ‘faith’ and not on ‘facts’.
After this, against this judgment, many parties which appealed in
Supreme Court, included the Suni Waqf Board, Nirmohi Akhara, All India
Hindu Maha Sabha and Bhagwan Shri Ram Virajman. On May 2011, Supreme
Court stayed the verdict on Ayodhya of Allahabad High Court. Justice
R.M. Lodha declared the High Court verdict to be “strange”. He observed,
“The decree of partition was not sought by the parties. How can a
decree for partition be passed when none of parties had prayed for it?”
The Bench said that the
status quo at the disputed site would
remain as directed by the 1994 constituted Bench and order passed on
March 13-14, 2002. The Bench while directing the
status quo to continue, made it clear that the existing
puja in the make-shift Ram Lala temple at the disputed site, would go on as usual.
The matter is to be heard by the Hon’ble Supreme Court of India in December 2017.
On Friday (December 1st) Citizens for Justice and
Peace has filed an intervention application in this case. They have
requested in their petition that having regard to the fact the that it
is not just a matter that concerns the Plaintiffs and the Defendants
alone, but relations between almost every citizen in India who seek
justice and peace, the matter should be referred to a Constitution bench
of seven judges.
Excerpts from the petition are given below:
“52. It is further stated by the Applicants that, though the
exact series of events that had occurred while the present dispute was
being heard by the High Court might not occur again, it cannot be denied
that the said dispute is not just a dispute between the Plaintiffs and
the Defendants. The Plaintiffs and the Defendants represent a larger
demographic of entire communities for whom the said dispute has become
contentious and sensitive. It cannot be denied that, with the unrest in
the atmosphere as is present today, there is still an evident
possibility that adjudication upon the present dispute is likely to
cause unrest and disturbances of violence in the country. There is also a
possibility that there still exist elements who are likely to exploit
the controversy of the present dispute for their own advantage at the
cost of lives of innocent. Thus, it makes it even more significant, that
this Hon’ble Court may take into consideration that, the issue in the
present appeals is not just a dispute over property between the
Plaintiffs and the Defendants but has several other issues which will
have far reaching effects on the secular fabric of the country.
- The Applicants submit that unfortunately secularism is being
manipulated by all groups political or otherwise. Muslims claim special
privileges in the name of secularism, Hindus demand a reversion to a
time that exists only in the political imagination. This issues before
the High Court involved a civil suit and, in our humble view, could not
have decided the larger issues of constitutionality. In view of the fact
that neither party was able to establish their case, no one should have
succeeded, even partially. It appears that finding no way to balance
these two, the High Court decision attempts a secular solution that
unfortunately does not put the festering wounds caused by this conflict
to rest.
- It is therefore most respectfully prayed that this Hon’ble
Court upholds the high ideals of secularism and the rule of law. Today
it is a battle of unequals within the courts as a divisive and
cataclysmic movement and event is given legitimacy by the powers that
be, and all of India, young and voiceless millions want to see the end
to this deliberately perpetrated conflict. The only situation lies today
In each of us Indians rising above narrow confines of class, caste,
community and gender and dedicate the spot that has come to signify
conflict to a constructive non religious purpose.
- For over three decades, this peace loving people of India,
practicing co existence and negotiation between different faiths and
languages, who have been held hostage to this dispute, have been,
unfortunately, not heard. Their vast voice has simply not been heard.
This small group of representatives Indians represents that vast, silent
voice, that wishes above all peace harmony and collective advancement
of all Indians.
- That the applicants also submit that by virtue of the nature of
the dispute this Hon'ble Court may also consider the necessity to
constitute a larger bench of at least 7 judges as certain Constitutional
questions are bound to arise and there may be a need to re-consider the
judgement of this Hon’ble Court in Ismail Faruqui v. Union of India
(1994) 6 SCC 360.”
Read the full text of the petition
here.
Read the statement by CJP:
Citizens for Justice and Peace, a human rights and legal
resources platform dedicated to fighting communalism and discrimination,
and for the rights of one and all, is now intervening in the Ram Janm
Bhoomi – Babri Masjid case along with a galaxy of prominent Indians from
various walks of life, from across the length and breadth of the
country. CJP’s plea is that the Supreme Court exercise its jurisdiction,
not treat this matter like a narrow property dispute and instead
recognise the ramifications of letting religion dictate the fate of a
piece of land.
CJP implores the court to take cognisance of the meaning of the word
Ayodhya, a compound word formed by adding together ‘a’ meaning ‘without’
and ‘yudh’ meaning ‘war’. Ayodhya, a space that should exist for all,
without conflict, has come to symbolise a vicious and bigoted conflict
between communities.
This voice of peace-loving and concientitious citizens, held hostage
to the conflict, has appealed to the Supreme Court not to treat the
dispute as just a property dispute between the litigants but one that
has a bearing on the fundamentals that this country stands on, its
Constitution.
Interveners include close to three dozen Indians from across the
country and from various walks of life, from Shyam Benegal, Aparna Sen,
Om Thanvi, RB Sreekumar, Anand Patwardhan (Ram Ke Naam), Ganesh Devy,
Medha Patkar, Aruna Roy, Anil Dharker, Ganesh Devy, Teesta Setalvad, Joy
Sengupta, Cyrus Guzder, Ram Rahman, Sohail Hashmi, MK Raina, to Dr. BT
Lalitha Naik and John Dayal. Others include: Suman Mukhopadhyay, Kiran
Nagarkar, Kumar Ketkar, Kalpana Kannabiran, KL Ashok, KP Sripala, AK
Subbaiah, Suresh Bhatt Bakrabail, Prof G Haragopal, N. Babaiah, Tanaz
Dara Mody, Muniza Khan, Tanveer Jafri and Dolphy D'souza.
“The outcome of this dispute, perpetrated and violent, has the potential
to affect the very foundations on which Indian democracy stands,” says
Teesta Setalvad, Co-founder and Secretary, CJP. “It is time for the
wounds caused by this conflict to heal and for peace-loving citizens of
all communities, young and old to speak up for an inclusive and forward
looking solution. This matter concerns the very soul of India,” she
adds.
CJP filed its intervention application to the civil suit on Dec 1 and
is likely to present its stand when hearing begins on Dec 5 at the
Supreme Court. Meanwhile, it has uploaded an online petition on its
website, seeking ordinary Indians sign up in support of Peace in
Ayodhya.
Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"
In May last year, a special CBI court charged the 12 accused in the
Babri Masjid demolition case of criminal conspiracy under Section 120B
of the Indian Penal Code.
In July, the Supreme Court will resume hearings to the title suit of
the land in Ayodhya. But it is another litigation, related to the
demolition of the Babri Masjid in 1992, which holds great significance
for India as a constitutional republic. The verdict in this case could
send out the powerful message that the law applies equally to everyone.
Or indicate that it is soft on those in power.
