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India: Awaiting Supreme Court’s Judgment in the Babri Masjid-Ramjanmabhumi Case

Saturday 9 November 2019, by siawi3

Source: http://sacw.net/article14209.html

India: Awaiting Supreme Court’s Judgment in the Babri Masjid-Ramjanmabhumi Case

by Irfan Engineer,

6 November 19

Judgment of the Special Bench of the Supreme Court of India in the Babri Masjid-Ramjanmabhoomi title suit (hereinafter, ‘Title Suit’) is expected before the retirement of the Chief Justice of India Ranjan Gogoi on 18th of November, who was one of the 5 judges hearing the matter. The Prime Minister of India Shri Narendra Modi has appealed for peace whatever may be the outcome of the case. It is heartening that Hindu supremacist organization the RSS has also appealed for maintaining peace and accepting the judgment with ‘open mind’. Jamiat-e-Ulema-i-Hind, All India Muslim Personal Law Board and Muslim litigants have always said that they would accept the judgement of the Supreme Court in the Title Suit after having done their best to save the Babri Masjid. They could face God on the day of judgment (qayamat) with clear conscience. Other Muslim organizations have also likewise appealed for peace and acceptance of the judgment whatever the verdict may be. With these appeals, we hope that the people of India will maintain peace irrespective of in whose favour the judgment is.

In this short piece, we try to trace the history of the litigation. The story of Babri-Masjid-Ramjanmabhoomi conflict is story of demand of Nirmohi Akhara permission to construct a permanent structure over Ram Chabutra in the outer courtyard of the Babri Masjid premises to the claim of entire 2.77 acre of land on which Babri Masjid once stood with Ramjanmabhoomi Nyas’s filing of the suit in 1989 on one hand and democratic institution of state caving in and crumbling under the pressure of mobilization by the Hindu supremacist organizations watching the rule of law and the might of the Constitution crumble under the weight of the mobilization by majoritarian politics. The executive and the judiciary twiddled their thumbs, passing on the buck to each other to save the Babri Masjid from demolition. The Allahabad High Court then legitimised faith of the majority community and legitimized the demolition of the Babri Masjid. The High court delivered its judgement dividing the land into three parts with Hindu parties getting two-thirds and Muslim litigants.

History of the litigation

In the year 1855, there were communal riots between the Hindus and the Muslims. Some 500 followers were mobilized by orthodox Sunni cleric Shah Ghulam Hussain to claim Hanumangarhi Temple in Ayodhya, which according to him was constructed after demolition of a mosque. The Hanumangarhi temple is about a kilometre far away from the Babri Masjid. The attack was repelled by 8,000 Bairagis who had assembled to protect the Hanumangarhi Temple. The Bairagis chased the Muslim followers of Ghulam Hussain who took shelter in the Babri Masjid. Several of the Muslims who died during the riots are buried near the Mosque. Nawab of Awadh, Wajid Ali Shah, too ruled in favour of the Temple. The Bairagis of the Nirmohi Akhara laid no claim to the Babri Masjid premises.

It is disputed as to when the Ram Chabutra was constructed. The Muslim litigants in the Title Suit maintained that the Chabutra was constructed after 1855 and surreptitiously, while the Hindu litigants maintain that the Chabutra always existed and Hindus worshiped the idols of Lord Ram in the Chabutra admeasuring 17’ X 21’. After the 1855 riots, iron grills divided the inner courtyard and the outer courtyard adjacent to the iron railings. The Chabutra was in the outer courtyard. In 1856, Awadh was annexed by the British colonisers and in May 1857, Hindus and Muslims together fought the first war of independence against the British rule. The movement was crushed brutally.

Nirmohi Akhara, worshippers of Lord Ram, which moved to Ayodhya sometime between the year 1734 and 1800 filed a suit before the sub-Judge of Faizabad on 29th January 1885 through Mahant Raghubar Das. The suit was only for awarding permission for constructing of temple over the Chabutra which, the suit stated was Janam Asthan, where Charan Punya (embossed on the Chabutra) were worshipped. The plaintiff in the suit claimed possession of the Chabutra, admeasuring 17 feet X 21feet, and permission to construct a temple over it to protect the worshipers from the vagaries of the weather. It is worth noting that there is no claim in the plaint that the construction of the Babri Masjid is after demolition of any temple; that the birth place of Lord Ram is under the mosque or that Hindus worship the entire land as Janam Asthan; or that they were entitled to the entire land premises on which Babri Masjid stood. Pandit Hari Kishan, Sub Judge of Faizabad dismissed the suit by his judgment dated 24th Dec. 1885. The permission was denied as there was likelihood of communal riot in future.

An appeal was preferred before the District Judge of Faizabad Col. FEA Chamier who dismissed the Appeal by his judgment dated 18/3/86 as “there is no ‘injuria’, nothing which would give a right of action to the plaintiff.” The District Judge, however struck down the observation of the Sub Judge stating that the plaintiff on account of their possession are owners of the land on which the Chabutra was constructed. Second Appeal was preferred before the Officiating Judicial Commissioner, Oudh, and W. Young too dismissed the Appeal vide his judgment dated 1/11/1886. The observations of Young are worth producing here.

“The Hindus seem to have got very limited rights of access to certain spots within the precincts adjoining the mosque and they have for a series of years been persistently trying to increase those rights and to erect buildings on two spots in the enclosure: (1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi... There is nothing whatever on the record to show that Plaintiff is in any sense the proprietor of the land in question”.

This observation of Young proved so true. From a claim over Ram Chabutra as Janam Asthan, the Ramjanmabhumi Nyas filed a suit in 1989 claiming that the entire 2.77 acres of land on which the Babri Masjid was constructed, the inner court yard and the outer courtyard belong to the deity, are sacred to the Hindus and the land would always belong to the deity even if intermittently the possession passed on to any other party, no matter for howsoever long. They borrowed the position Muslim litigants were arguing – “once a Janambhumi, always a Janambhumi”. Muslim litigants were arguing that a Mosque belongs to Allah, to Him alone, and cannot be alienated or the user or ownership changed. Ramjanmabhumi Nyas argued on similar lines. The Allahabad High Court accepted this as faith of Hindus and the judgment is heavily relies on acceptance of this as faith of all Hindus.

After Independence

Besides a communal riot in 1934, Ayodhya there were no significant developments on the issue of Babri Masjid.

On the intervening night of 22nd December / morning of 23rd December 1949, Lord Ram’s idols were taken from the Ram Chabutra in the outer courtyard and installed the deity under the central dome of Babri Masjid after breaking the locks. A police picket of 15 persons was on duty but did not apparently act. Several instructions were given by the Central Govt. to remove the idols, but they were not on the ground that it would ignite a law and order problem. The installation was not all of a sudden. It was being planned for a while.

On 5th January the Dist. Magistrate locked up the disputed structure and a scheme was framed for the maintenance of the premises. The order of the civil judge restrained by means of temporary injunction from removing the idols in question from the site in dispute and from interfering with ‘puja’ etc. as at present carried on. However namaz was stopped. In 1955, Allahabad High Court upheld the order of the DM passed on 19th January 1950. In 1959, the Nirmohi Akhara through Gopal Visharad filed a title suit claiming the inner sanctum of the Babri Masjid. And Sunni Waqf Board filed a suit in 1961 claiming ownership right over the inner as well as outer courtyard of the Babri Masjid.

On 1st February 1986, the position on ground was again changed. At 4.40 pm the District Court in Faizabad passed an order on an appeal of one Umesh Chandra Pandey, who was not even a party in any title suit and without hearing any party to the title suit to the effect that the lock on the Ramjanmabhumi temple should be opened and unrestricted and free offering of prayers be allowed. The appeal was filed on 31st January 1986 after the Musnsif’s Court of Hari Shanker Dubey rejected Pandey’s application dated 25th January 1986 for opening the lock on the ground that suits were pending in the Allahabad High Court and no such order could be passed. Next day i.e. on 1st February the appeal was heard without notice to any party in the suit and order passed by Dist. Judge and the same day at 5.19 pm the locks were broken and prayers allowed. Mohammed Hashim who was plaintiff in the title suit filed in 1961 to be impleaded as a party to the Application.

In 1989 Ramjanmabhumi Nyas filed suit as next friend of Ramlalla Virajman claiming that the entire land belonged to the Deity who cannot be dispossessed of the title to the land. Limitation is not applicable to the Deity and the Deity can sue through a next friend. Then on 6th December 1992, the Babri Masjid was demolished and this time not surreptitiously in the wee hours of morning but after full preparation, planning and mobilization which neither the highest court of the land nor the Central Govt. prevented the demolition which it could have if it had sufficient will.

While twenty-seven years ago, Babri Masjid came crumbling down on 6th December 1992 amidst massive mobilization by the Sangh Parivar – organizations affiliated to right wing Hindu supremacist RSS. Liberhan Commission which was appointed to look into the circumstances and events that led to the demolition of Babri Masjid found that demolition of the Mosque was meticulously a planned event. It further observed that “Kalyan Singh’s (the then BJP Chief Minister of UP) government was the essential component needed by the Sangh Parivar for its purposes. Kalyan Singh lived up to the expectations of the Parivar”. Regarding the demolition, the Commission stated, “The preparation was accomplished with phenomenal secrecy, was technically flawless with consistency and assured results.... The theme was power. It attracted clusters of young men to support the hidden agenda. Leaders know how passions are aroused and how to prevent the same; they however always see what would be beneficial to them rather than what would be good for the nation. This is what happened in Ayodhya.” The crowd mobilized by the Sangh Parivar cheered the demolition. Among those who cheered the demolition were BJP leaders Murli Manohar Joshi, Uma Bharti, L K Advani and others. What came down on 6th December 1992 was not only the structure called Babri masjid, but also the Constitution of India, democratic institutions that were mandated to protect the rights of the citizens of India in accordance with the Constitution, including the judiciary and the executive. When there were clear signs of planning and preparations to demolish the mosque on 6th December all were twiddling their thumbs, dilly-dallying in taking action, passing the buck on other agencies to take preventive actions to stop the demolition and even hoodwinking each other and hoping that the mosque will not be demolished after all.

Tremendous pressure was mounted on the Supreme Court to expedite the hearing of the Appeal against the Judgment of the Allahabad High Court in the Title Suit. Senior RSS leader Indresh Kumar said on November 28th, 2018 that the country would not be handicapped for 2-3 Judges to throttle its beliefs and in construction of Ram Temple. Ram Madhav, General Secretary of the BJP warned that if hearing of the Appeal by the Supreme Court is not fast tracked, other options would be explored.

Arguments of the parties

The Arguments were opened by the Hindu litigants. Nirmohi Akhara sought the possession of the entire disputed plot and a declaration that its right to continue to worship at the site as a distinct religious denomination. It argued that Nirmohis were worshipers of Lord Ram. They were dispossessed in 1950 when the DM took over the site. Ramlalla Virajman argued that Ramlalla in Indian jurisprudence has a status of juristic person who can file cases to protect its rights. It was further argued that entire Hindu community considered Ayodhya as birth place of Ramlalla from times immemorial and have been continuously worshippin at the disputed site, whereas Muslims have abandoned the site since 1934, and in any case since 23rd December 1949. The character of disputed structure – mosque or temple – can be determined only by who worshipped there.

If we revisit the judgements in 1885 and 1886 in the case, which was filed for construction of a temple on the Ram Chabutra in the outer courtyard of the Babri Masjid and not for claiming the entire site, the claims of Hindu litigants were rejected mainly on two grounds 1) limitation – the claim was too delayed as Babri Masjid has been in existence since 1528; and 2) Possession was the only claim in their favour without any records of title, grant etc. The third issue that went against them was possibility of violent conflicts in future between the worshipers belonging to the two communities. To overcome these handicaps, the Hindu litigants adopted two strategies – 1) disrupt the normalcy and use the threat of breakdown of law and order for augmenting their claims; and 2) Plead faith as a source of their right from times immemorial, not provisions of law, documents or evidence. Thus far their strategy has worked and even the Allahabad High Court’s judgement heavily relies on faith to grant reliefs to Hindu litigants. The threat of law and order is always there.

The outcome

The mobilization for demolition of the Masjid was not for religious attainments. While its immediate objective was to dislodge Congress and install BJP in power, its long term objective was to undermine the Constitution, its core values of liberty, equality and fraternity, rule of law and establish hegemony of Hindu supremacists. The Hindu supremacists wanted construction of Ramjanmabhoomi temple (and by extrapolation, entire polity) to be based not on legality but on the (unsubstantiated) Hindu faith that Lord Ram was born precisely on the spot under the central dome of Babri Masjid. They wanted to create might of Hindu nationalists and governance to be based on might of the mobilized. Every trained blow on the Masjid that day was a blow on the Constitution and rule of law; blow to rule of sanity; blow to the idea that governance should ensure development of the most oppressed and marginalized – antyoday.

Congress failed to protect the Masjid in 1992 and utterly failed to stop the country from sliding into the hands of Hindu supremacists. The demolition of the Masjid was followed by communal violence in several cities and towns, particularly in the western and northern India, including Mumbai, Ahmedabad and Surat. About 900 people were killed in the communal violence in Mumbai, 246 people were killed in Gujarat, 95 were killed in Bhopal communal violence and 25 in other parts of Madhya Pradesh, 200 were killed in UP, 100 in Assam, 60 in Karnataka, 32 in West Bengal, 48 in Rajasthan, 24 in Bihar, 12 in Kerala and Andhra Pradesh each and 2 were killed in Tamil Nadu.

Violence was the weapon deployed by the Hindu supremacists to extend their influence politically and strengthen their party. Demolishing Babri Masjid and advocating violence they demonstrated that rule of law meant nothing to them and their faith was above law; that law could not protect all citizens and that sections they chose to stigmatize could be practically relegated to second class citizenship.

We sincerely hope that the Judgment of the Supreme Court restores confidence of all citizens in rule of law and the Constitution.


Irfan Engineer
Director,
Centre for Study of Society and Secularism
Call: +91-22-26149668 | Fax: +91-22-6100712
e-mail: forirf[at]gmail.com; irfanengi[at]gmail.com; csss.mumbai[at]gmail.com