Monday, May 14, 2012

Communal Politics in India - Part 2

Justice Rajindar Sachar.“It is time the secular political parties took a stand.” JUSTICE Rajindar Sachar, former Chief Justice of the Delhi High Court, has emerged as one of the most critical voices against the Ayodhya verdict. The author of the Sachar Committee report, which documented the poor conditions of Indian Muslims, says the judgment delivered by the Lucknow Bench of the Allahabad High Court on September 30 follows no legal precedents and has done injustice to the Muslim community by rewarding the Sangh Parivar, whose constituents demolished the Babri Masjid. Excerpts from the interview he gave Frontline:

The Ram Janmabhoomi-Babri Masjid dispute is not just a religious dispute but has occupied political imagination in India for the past two decades. How do you perceive the verdict?

The judgment can be summed up in two words: Crime piece. In 1992, a crime was committed. The Babri Masjid was demolished. But assume that the crime was not been committed and the matter had gone to court. Do you think the court could possibly, under any circumstances, order that the land be divided? Frankly, the grounds on which the organised Hindutva plaintiffs went and asked for land, they should have been thrown out on the grounds of remediation. You see, the masjid was there since the 16th century. They filed the suit only recently [in historical periods]. The Limitation Act dictates that a suit could be filed within a period of 12 years from the date of dispute. Legally speaking, the Sangh Parivar does not have a right even if a temple had been demolished to build the Babri Masjid, as the masjid existed before the period of limitation.

I have been writing since 2003 that a precedent to this case exists. [Quotes from one of his research papers] ‘There was a masjid called Shahid Ganj in Lahore decided by the Privy Council in 1940. In the case, there was admittedly a mosque existing since 1722. But by 1762, the building came under Sikh rule of Maharana Ranjit Singh and was used as a gurudwara. It was only in 1935 that a suit was filed claiming that the building was a mosque and should be returned to Muslims. The Privy Council, while observing that ‘their Lordship have every sympathy with a religious sentiment, which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely', went on to hold that ‘the property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of mutawali [caretaker] to possession for the purposes of the waqf came to an end under the Limitation Act.'

At that time, the court noted that the site was undoubtedly a gurudwara. It was not a question of demolition. The Babri Masjid is a much more political and sensitive site, as it was made out to be.

By parity of reasoning, even if a temple existed before the building of the masjid 400 years ago, the legal suit by the Vishwa Hindu Parishad and others must fail. On the contrary, the court dismissed the plea of the Sunni Waqf Board, which was valid under the Limitation Act.

Then, there is a second aspect. There is no clear finding that a temple existed beneath the masjid. Most people noted that there may have been ruins of some temple. The country's polity spans a period of around 5,000 years. Many Buddhist temples were destroyed to build Hindu temples and masjids. Some mosques were also demolished by some Hindu kings. Not because of any religious considerations but because of political compulsions of that time. Does this mean that you will secure the sanctity of all this through demolition and reclaiming? In the Babri Masjid case, there are contradictory opinions of many historians that there was no temple there at any time. How can a court decide on a dispute based on the Hindu faith that it is believed to be the birthplace of Ram? In a court, faith has no meaning.

Then, there is a third aspect. Whether Muslims build a mosque or not is a different question. That is a Muslim choice. But since a mosque was demolished, the land should have been returned to Muslims. Many young people are disappointed. Many Muslims said they could have built a school or a hospital for all communities on the land but the land should not have been divided. The argument that the land should not go back to Muslims is not understandable. Even the Quran, it is said, says Ram and Krishna were prophets and Muhammad was the last prophet. Many Muslim scholars have come to this conclusion.

The judgment is ridiculous. Let us accept the controversial Archaeological Survey of India [ASI] report that there was a temple there. The Muslims could have also accepted. They could have chosen not to build a mosque there but the land should have been given to them. They could have built anything on it. It is their human and communitarian right. Even if the temple was destroyed, does displacing Muslims from a 500-year-old shrine make sense? The court is not competent to judge historical events.

The judges have quoted faith extensively. Your comments.

That is what I was saying. This is their finding that Hindus believe that the disputed site was the birthplace of Ram. In the process, they legitimised right-wing history, so controversial in historical polemics.

How far can you go back to correct history even if you take religious faith into consideration? In a secular country like ours, it is totally impermissible. I don't want to use a strong word but it is a political dishonesty. Our political parties refused to take a stand. The demolition wouldn't have taken place at all had the government taken a stand. Now each of these parties is saying that let the court decide. It is a political issue. In all the important areas of governance, the political parties say that the court should not interfere. But now, it is very convenient for every party to say that the court can decide. Political parties should take a stand. This is secular India after all. Judiciary has to hear a suit, give a finding. But in this case, neither legal precedents nor common laws were taken into account. The judges acted as guardians instead of ensuring justice.

The Sangh Parivar has indicated that it will revive the Ram Janmabhoomi Movement. This could lead to polarisation among religious communities. Has the judgment made a dent in the principle of judicial neutrality and objective rationality?

It is undoubtedly a pro-Ram Janmabhoomi judgment, inclined towards the majoritarian view. The Sangh Parivar is sensing a victory in it. But it would not be correct to castigate the entire judiciary as such. It definitely creates a dent in its reputation. The fact of the matter is that the images of Ram Lalla were placed there in 1949. It was an act of piracy. Muslims had been praying there for a long time. It was a mosque. When a Hindu idol was installed, it was natural for Muslims not to pray there as worshipping an idol is against their religious ethics. That is why they stopped going to the Babri Masjid. That does not mean that their rights had gone. In 1949, the court had prohibited any kind of worship there. But now the court has ruled that in 1528 a temple was destroyed, thereby legitimising a controversial ASI report. Even if a temple was destroyed, you cannot come to the conclusion that the Babri Masjid was illegal.

This was a civil case of title dispute. But the matter is so politically sensitive that it indirectly legitimises the Babri Masjid demolition, which was a criminal act. What do you have to say about this?

Yes, this judgment has damaged a lot of things and made a dent in the secular ethics of India. It is like saying: destroy the mosque and give it to the Hindus. Two-thirds of the land is effectively going to the Hindus. Faith can be no grounds to reach a decision in a court of law.

The media have been asking the people to move on. Where should we move on? And move to what? You can't forget a crime. A court of law has to ensure that you cannot get away after committing a crime. The Muslims' right to their property is being taken away. The common law says that if a son kills his father, he is not entitled to inherit his father's property. But here the goons who demolished the mosque got what they wanted.

As the author of the Sachar Committee report, you have documented the poor conditions of Muslims. What kind of message has the minority communities got from such a judgment?

It will be a very dangerous message, of course. It is time the secular political parties took a stand. In 1946, Bihar was in flames. It was hit by Hindu-Muslim riots. Pandit Jawaharlal Nehru publicly wrote a letter that if the riots did not stop he would bomb the rioters from Delhi. Bihar was a Muslim League constituency, and the League was fuelling the riots. But the larger vision of political parties prevented a lot of mess. The state had to take a stand and reaffirm its secular ethics as granted by the Constitution. However, it is good to see that the organised Muslim opinion is adopting a healthy approach. But you can't tell them, as the media have been doing, to forget everything. It is a question of the community's belief in the system and India's polity. The good thing is that their reactions have been very restrained.

Why should the Muslims be asked to move on? The same question can be posed to the Sangh Parivar. Why don't they move on? Even with this judgment, they are feeling victorious but not satisfied. They want to build a Ram temple on the entire land there. If it is a question of Hindu sanctity, is it not a question of Muslim sanctity, too? To me, this judgment is a surrender to the rabid communal sentiment. It is only the weakness of political will that is responsible for the Ayodhya imbroglio. REFERENCE: COVER STORY ‘Faith has no meaning in a court' AJOY ASHIRWAD MAHAPRASHASTA Interview with Justice Rajindar Sachar. Volume 27 - Issue 21 :: Oct. 09-22, 2010 INDIA'S NATIONAL MAGAZINE from the publishers of THE HINDU

Dr Ram Puniyani Myths about Muslims

Sachar Report

Dr Ram Puniyani on Muslims are Anti India

PROFESSOR D.N. Jha, who is one of the four professional and independent historians who submitted “A Historians' Report to the Nation”, is perplexed at the order of the three-judge Bench of the Allahabad High Court. Jha feels it is a “compromise judgment”, probably arrived at to maintain peace between communities, and not one based on historical facts. Excerpts from an interview he gave Frontline:

Should not a distinction have been made by the honourable judges between faith and historical fact?

Faith should never be allowed to supersede historical evidence. What seems to have happened is that faith has won over reason, which, I think, is unfortunate. Faith negates history.

Do you think that certain aspects of the order may have the potential to be used to question the veracity of several existing historical monuments? Also, would that not lead to a rewriting of history?

Yes, this is what is likely to happen. It is disrespect to fact, to historical evidence and to the tradition of history writing. I am not suggesting that historians are always objective, but serious historians are.

As a historian how would you interpret the judgment?

I do not think the contesting parties made a prayer for partition of land. They asked for a decision on the title. If the communities want to live together in peace, well, that is good for the country, but there is something called justice. My only apprehension is that as far as compromise is concerned, the political parties, who are backing some of the litigants, are not going to allow it to happen.

You were part of the team of independent historians that submitted a report to the nation on the Babri Masjid. Do you feel history or historical fact has had little role in the present context? What has been the verdict of history?

(a) I cannot understand how the courts have gone into the issues of faith. They have asserted that the site where the idols were placed was actually the birthplace of Ram. The judgment, therefore, is based on faith and theology, and certainly not on history. Historical evidence does not support the assertion that Ram was born where the idols were kept. I don't know what kind of evidence the court has relied on. Someone should have pointed out in court that the belief that the place was the birthplace of Ram was first clearly mentioned by a French Jesuit priest, Tiffenthaler, in 1788. Subsequently, many people propagated the opinion that Ram was born where the mosque stood and the mosque itself was built after destroying the temple.

But a Scottish physician, Francis Buchanan, who served in the Bengal Medical Service, visited Ayodhya in 1810, and wrote clearly that the temple destruction theory was ill-founded. The first conflict that took place between Hindus and Muslims over this was in 1855, and Wajid Ali Shah set up a three-member committee to defuse the situation. After the 1857 uprising [war of independence], in 1889, a Hindu priest went to the local court, staking his claim to the place and his plea was dismissed. After that, from 1889 to 1949, both Hindus and Muslims continued to offer worship at the Ram Chabutra peacefully except in 1934 when there was a conflict between them.

The saga of the conflict over Ayodhya began in 1949, when the idols of Ram were surreptitiously placed in the central dome of the Babri mosque with the connivance of the Deputy Commissioner of Faizabad, K.K.K. Nayar, who is said to have been a member of the RSS.

(b) I did not participate in the excavation. I was part of the group of historians who scrutinised evidence, before the demolition of the mosque. The then Prime Minister, Chandra Shekhar, wanted the disputing parties to negotiate and come to an agreement. The Vishwa Hindu Parishad had two or three historians and archaeologists with it, while the Babri Masjid Action Committee did not have any. We felt that it was an issue that concerned the nation, and four of us, Suraj Bhan, Athar Ali, R.S. Sharma and I, decided to attend their meetings as independent historians.

It was in that capacity that we wrote our report and submitted it to the Government of India, and later published it as “Ramjanmabhumi-Baburi Masjid: A Historians' Report to the Nation”. During the entire period of the abortive negotiations, the Archaeological Survey of India [ASI] played fast and loose with us and withheld important material, including the site notebook connected with the Ayodhya excavations of the Ramayana project of 1975-80. We wrote several letters to the government asking for the evidence, which were never acknowledged. The ASI's attitude on the Ayodhya issue has always been ambivalent. The ASI has remained a government department, having no autonomy. Also, it has been remained packed with Hindu fundamentalists.

(c) As far as the verdict of history is concerned, if you go back in time, before 1528, there is evidence of several religious groups who had a claim on Ayodhya. The Chinese pilgrim Xuanzang wrote that there were 3,000 Buddhist monks and hundred monasteries and only 10 devas or temples belonging to the brahmanical religion. Buddhism was dominant in Ayodhya in the seventh century. The first and fourth Jain Tirthankaras were born in Ayodhya. Even now Ayodhya remains a holy place for Jainas. There is strong evidence of Muslim presence since the 12th century onwards. Sufi saints visited Ayodhya from the 12th century – one of them was Qazi Qidwatuddin Awadhi, who came from Central Asia and is said to have been a disciple of Khwaja Moinuddin Chisti of Ajmer. There are many Sufi shrines in Ayodhya. Thus, there is evidence of Buddhist presence, Jain presence and a Muslim past dating to the 12th century. I don't understand how can all this evidence be dismissed and the assertion made that this place was the birthplace of Ram.

Ayodhya was not even a pilgrimage centre before the 17th and 18th centuries. There is a reference to Ayodhya in Skanda Puranas called ‘Ayodhya Mahatmya'. The composition of this text stretches over 300-400 years with lots of interpolations and contradictions. There are at least a hundred verses devoted to the place where Ram ascended to heaven, the swargadwaar, located on the banks of the river Sarayu and only 10 verses referring to his birthplace, but not the site of his birth.

The three historically attested Ram temples are in Madhya Pradesh, belonging to the 12th century. Tulsidas' Ramcharitamanas does not specify the locale of Ram's birth; neither does he refer to the destruction of a temple to build a mosque. If we travel further back in time, in the 11th century, there was a minister of the Garhwal king [who ruled over the Awadh region] called Bhatt Lakshmidhara. He wrote a book called Krityakalpataru, which has one section on the Tirthas, called Tirthavivechankanda. This does not mention Ayodhya as a centre of pilgrimage.

If the Garhwal kings did not mention it in the 11th century, how can it be said to be a pilgrimage centre or the birthplace of Ram? In fact, Prayag was a more important centre of pilgrimage. There was no Ram temple in the whole of Uttar Pradesh before the 17th century, to which period belongs Kanakabhavan, or Kanakamandapa, but if one goes to north Bihar and the Nepal Terai, in Janakpur, there is a temple dedicated to Sita, constructed in 1898.

Do you feel that the Bench did not go into the details of the historical and archaeological evidence?

I wish they had taken historical evidence into consideration. Several archaeologists and historians like the late Suraj Bhan, Shireen Ratnagar, R.C. Thakran and Suvira Jaiswal were called to depose before the court. What happened to all the evidence presented by them? History should have played a role. When something is decided on the basis of faith, then history takes a back seat.

The VHP maintains that Muslims destroyed 30,000 temples to build mosques. Richard Eaton, an American historian who has written on the desecration of temples, says that the total number does not exceed 80. History is full of examples to show that religious structures were constantly destroyed by the ruling classes of various hues and religions.

The findings of the ASI, which were perhaps relied on by the court, are not conclusive. In the excavation report (2003), it was claimed that a massive structure was found under the mosque and this was held up by pillars. It further said that brickbats were found at the pillar bases. Several archaeologists who were watching the digging complained to the court that the scattered brickbats were assembled together to look like pillar bases. It is also interesting that the chapters of the main text of the report (2003) have the names of the authors, but no one is mentioned as the author of the conclusion called “Summary of Results”.

Moreover, in the main text of the report, there is no mention of any temple, but it suddenly pops up in the “Summary of Results”. The report was obviously a doctored document.

How is this issue linked to the communalisation of society? One of the reasons why you and a few others offered to give evidence was that you were concerned about the implications of the dispute.

The first conflict around this was in the late 19th century. Both communities continued offering prayers. It was in the 1970s that the VHP communalised the issue in order to drive a wedge between the two communities. This finally led to the destruction of the mosque. Naturally, Muslims felt hurt and so were many Hindus. But the fundamentalists went on with their divisive agenda, and the Bharatiya Janata Party used the Ayodhya issue to catapult itself into power.

Can courts adjudicate on issues of historicity or faith?

There is a spurt in the number of Hanuman temples in the capital. In the coming years, the government and the courts will not only be required to solve the problem of one Ram, but of numerous Hanumans, whose temples have been mostly constructed on unauthorised land. REFERENCE: COVER STORY ‘History has taken a back seat' T.K. RAJALAKSHMI Interview with Professor D.N. Jha. Volume 27 - Issue 21 :: Oct. 09-22, 2010 INDIA'S NATIONAL MAGAZINE from the publishers of THE HINDU

Dr Ram Puniyani on Muslim are violent

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).

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? REFERENCE: COVER STORY Muslims wronged A.G. NOORANI The judgment is a crowning act on consistent judicial injustices to Muslims since December 23, 1949. Volume 27 - Issue 21 :: Oct. 09-22, 2010 INDIA'S NATIONAL MAGAZINE from the publishers of THE HINDU

Dr Ram Puniyani on Are Muslims Filthy

THE “compromise” judgment of the Allahabad High Court, for all its merits and attempts to achieve communal amity, is perceived as a setback for the basic tenets of historical inquiry and precision. Social scientists of all hues have reacted with dismay to the dominance of faith and belief over scientific fact and historicity. While a section of the political class and the intelligentsia genuinely believes that it is time to move on and let the higher judiciary take up the matter if need be, historians and students of history wonder what happened to all the evidence painstakingly collected in the national interest by leading historians and archaeologists of the country. One of them, the archaeologist Suraj Bhan, who is no more, had noted the strain the dispute had created, before the demolition, and attempted, purely voluntarily, to set the record straight, not only to maintain communal amity but to protect academic integrity.

In 1991, two significant reports, one in March and the other in May, were written with the sole objective of presenting to the nation information relating to the Ram Janmabhoomi-Babri Masjid issue. The May report, titled “Ramjanambhoomi-Babri Masjid issue: A preliminary study of the archaeological evidence”, was by Suraj Bhan, who was Professor of Archaeology in the Department of Ancient Indian History, Culture and Archaeology at Kurukshetra University in Haryana. This was an interim report, which was submitted to the Indian Council of Historical Research (ICHR). The Home Ministry had assigned it the task of authenticating the documents submitted by the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC).

Suraj Bhan made these observations on the basis of the excavations done by Professor B.B. Lal during 1975-80, his own study of the archaeological remains at Ayodhya, and evidence collected in 1969-70:

“There is nothing wrong in looking for a kernel of truth in the literary tradition of the Ramayana. But what is necessary for a scientific methodology is to build a reasonable hypothesis about the structured entity which must have been objectively in existence in the past. The metaphor of kernel would not encourage the scientist to critically examine either the evidence buried in the texts or the material evidence collected through excavations in order to identify the structure of relationship embodied in the evidence. Merely locating the names of personages and places in the time frame does not suffice for this purpose. It will only confirm the vague understanding of history we have unconsciously imbibed through what is called common sense.... What has limited the significance of B.B. Lal's attempt is the vague notion of history that is implicit in his approach.... On account of the limitations of Professor B.B. Lal's approach mentioned above, we cannot accept his view that archaeological evidence proved the historicity of Ram as a personage who lived at the site where the present day Ayodhya is located during the period of early NBP [northern black polished] ware (circa 700 B.C.) or that he was born at the place where Babri Masjid today stands.”

The second report, titled “Ramjanmabhumi Baburi Masjid - A Historians' Report to the Nation”, was authored by historians R.S. Sharma, M. Athar Ali, D.N. Jha and Suraj Bhan. R.S. Sharma and D.N. Jha were professors of History at the University of Delhi (Sharma was also the first Chairman of the ICHR) and Athar Ali was Professor of History at Aligarh Muslim University. That the dispute whether a Ram temple existed at the site of the Babri Masjid was being left entirely to the litigants and had not involved historians of any standing worried the four historians. They approached the government to consider the views of independent historians and also requested that archaeological and textual evidence in possession with government organisations such as the Archaeological Survey of India (ASI) be made available to them.

While the AIBMAC agreed to abide by the findings of an independent group of historians, the VHP did not accept it. The government maintained a tactical silence all along. Undeterred, the four historians embarked on the project on their own in the national interest as they felt that people had a right to know the historical facts.

The very first thing they noted was that the VHP had been unable to cite any ancient Sanskrit text in support of its claim that there was an ancient Hindu belief that a particular spot in Ayodhya was the Ram Janmasthan (birthplace of Ram). The report concluded, after looking at various pieces of textual and archaeological evidence, including Tulsidas' Ramcharitamanas, that no evidence existed in the texts of any veneration being attached to any spot in Ayodhya before the 16th century (and indeed before the 18th century) for being the birthplace of Ram and that there were no grounds for supposing that a Ram temple or any temple existed at the site where the Babri Masjid was built in 1528-29.

Their conclusion rested on an examination of the archaeological evidence as well as the contemporary inscriptions on the mosque. They concluded that the legend that the Babri Masjid occupied the site of Ram's birth did not arise until the 18th century and that a temple was destroyed to build the mosque was not asserted until the beginning of the 19th century. They held that the full-blown legend of the destruction of a temple that stood at the site of Ram's birth and at Sita ki Rasoi came as late as the 1850s. “Since then, what we get is merely the progressive reconstruction of ‘imagined history' based on faith,” noted the four historians in their report to the nation.

After examining the inconsistencies in the VHP claim based on the Ayodhya Mahatmya (the merits of visiting Ayodhya) given in the Skanda Purana, the core of which was not compiled earlier than the 16th century, the historians noted: “In spite of these various inconsistencies, even if we accept the location of the birthplace of Rama as given in the Ayodhya Mahatmya, it does not tally with the site of the Babri Masjid... according to Hindu belief as given in the Ayodhya Mahatmya of the Skanda Purana, the birthplace of Rama cannot be located on the site where the Babri Masjid stands. It is argued by the experts of the VHP that the location of the Ram Janmabhumi is given on the basis of solar directions and cannot be determined through the use of the compass. But even if we take solar directions into account, the Janmabhumi of the Skanda Purana cannot be located on the site of the Babri Masjid. The various versions of Ayodhya Mahatmya seem to have been prepared towards the end of the 18th century or in the beginning of the 19th; even as late as that the birthplace was not considered to be important. It is significant that the Janmasthan is not mentioned even once in any itinerary of pilgrimage given in the Mahatmya.”

The historians also relied on the most primary source of recorded historical evidence, the Persian inscriptions on the mosque. Presenting a full translation of the inscriptions, the historians observed that the contemporaneity of the inscriptions was shown by their text and date, and their accuracy was established by the fact that Mir Baqi finds mention in Babur's memoirs as the governor of Awadh or Ayodhya at exactly the same time.

The report noted: “These fairly long inscriptions show that the construction of the Babri Masjid was completed in 1528-29. But nowhere is any hint given in them that the edifice was built after destroying a temple or upon the site of a temple. If one accepts for the purpose of argument that there was a temple at the site, and the builder of the mosque (Mir Baqi) destroyed it to build a mosque, one has to answer why at all should all reference to this fact be omitted in the foundation inscriptions. Surely, had Mir Baqi destroyed a temple, he would have deemed it a meritorious deed; and what would have been more natural than that he should get this act recorded along with that of the building of the mosque to add to his religious reputation. That he did not get any such act recorded surely means that he had in fact not destroyed any temple, and so found no reason to record something that had not happened.”

Expressing surprise at Tulsidas' Ramcharitamanas also not mentioning the desecration of a temple at the site of the mosque, the historians wrote: “Within fifty years or so of the construction of the Babri Masjid, Tulsidas composed in 1575-76 his celebrated Ramcharitamanas, the most fervent exposition of the Ramayana story in Avadhi. Is it possible to believe that Tulsidas would not have given vent to heart-rending grief had the very birth site of his Lord been ravaged, its temple razed to the ground and a mosque erected at that place? His silence can only mean that he knew of no such scandal; and given his attachment to Rama and Ayodhya, this must mean that no such event had in fact taken place. Tulsidas, on the contrary, suggests that it was not Ayodhya but Prayag that was to him the principal place of pilgrimage ( tirath raj); and so no tradition of the veneration of any spot as that of Rama's birth at Ayodhya had yet taken shape.”

The historians added that even Abul Fazl, in his A'in-i-Akbari, completed in 1598, wrote about Ayodhya being the “residence of Ramachandra, who in the Treta age combined in his own person both the spiritual supremacy and the kingly office” but did not confine Ram's place of birth to the existing town of Ayodhya, let alone the site occupied by the Babri Masjid. “Had such tradition existed, Abul Fazl would surely have mentioned it, because he does mention the tradition that two Jewish prophets lie buried at Ayodhya,” they noted in their report.

As for the black pillar bases that were used to vouch for the existence of a temple, the historians noted, after examining many records, including those of art historians, that there was nothing to show that “the pillar bases were remains of a local temple of which they formed an integral part in the beginning and the mosque was erected over them”.

In his own report to the ICHR, Suraj Bhan wrote of the pillars: “This is a wild hypothesis not backed by any material evidence and is actually negated by the factual position easily verifiable from the existing structure of the Babri Masjid. The stone pillars are, in fact, embedded at the arched entrances in the massive walls of the mosque and stand at the floor level on the foundation walls constructed for the big building. Only those who have failed to understand the architectural plan of the building and wilfully ignore the indisputable factual position will insist on seeing these stone pillars as in situ. Since black stone pillars are relatively short and slender, they cannot be load bearing. In fact, their placement at the arched entrances and the colour contrast they offer as also the carvings on them suggest that they have been used only as decorative pieces and are not architecturally functional beyond this decorative purpose. Furthermore, the placement of the pillars fits in the plan of the mosque and not that of a Hindu temple.”

The September 30 judgment has evinced strong reactions from a cross-section of historians and archaeologists. On behalf of the Safdar Hashmi Memorial Trust, 62 academics, including Romila Thapar, Irfan Habib, D.N. Jha, K.M. Shrimali, K.N. Panikkar, Utsa Patnaik, Shireen Moosvi, Amiya Kumar Bagchi, Suvira Jaiswal and Arjun Dev, have demanded that the notebooks, artefacts and other material evidence relating to the ASI's excavation at the site be made available for scrutiny by scholars, historians and archaeologists.

First of all, the view that the Babri Masjid was built on the site of a Hindu temple – which has been maintained by two of the three judges who gave the verdict – does not take into account all the evidence turned up by the ASI's own excavations. The presence of animal bones throughout and the use of “surkhi” (made from powdered burnt bricks) and lime mortar (all characteristics of Muslim presence) rule out the possibility of a Hindu temple having been there beneath the mosque. The judgment, the academics said, had raised serious concerns about the way history, reason and secular values, which much of rational India shared, had been treated. REFERENCE: COVER STORY Forgetting facts T. K. RAJALAKSHMI The judgment apparently has not taken into account the evidence presented by leading historians on the disputed site. Volume 27 - Issue 21 :: Oct. 09-22, 2010 INDIA'S NATIONAL MAGAZINE from the publishers of THE HINDU

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