4. Ram Janmabhoomi and the courts

4.1 A non-mosque

The juridical debate concerning the Ram Janmabhoomi site centres around two questions :

  1. Can a court adjudicate in a matter concerning historical wrongs, dating to before the present political set-up, and extending far beyond the case at hand, which has acquired a symbol value in precisely this larger issue of righting historical wrongs?

  2. If not, i.e. if the court can only deal with this at its material face value, as a dispute of ownership or of the right of access or use, then whose building is it? We will start with the second question.

A very important element in the juridical debate is the actual status of the disputed place before the Hindu take-over in 1949. The Hindu side says that it was an abandoned building since 1936. They might, on top of this claim, invoke the principle that "if you have land and you don't cultivate it, it's not yours", a principle which several Muslims have mentioned to me as a fine example of how socially progressive Islam really is. The Muslim side says it was a full-fledged mosque up till December 22, 1949.

A mr. Hashim Kidwai has written19 that mr. Advani's claim that no namaz was offered in the Babri Masjid since 1936, a full thirteen years before the Hindu take-over, "is not based on facts". To substantiate his counter-claim, he brings up the most first-hand kind of evidence : "My father was posted at Faizabad as Deputy Collector from 1939 to 1941 and I, along with my mother and other members of my family, visited the Babari mosque in October 1939 and again in October 1941 and offered the Zuhar (noon) prayers there."

I readily believe this man's testimony, especially because it does not prove what he wanted to prove. It proves that the Babri Masjid was still considered a mosque, and had not been transformed into anything else. In fact, it clearly prove that some Muslims still went there to offer prayers. However, the fact that someone who wants to prove that the place was still in use in 1936-49, merely says that his family went there twice (visiting it) in more than two years, and does not say that he saw with his own eyes that the Muslim community gathered there every Friday, is a strong indication that the place no longer was a community mosque in regular use.

I have so far not seen any document that settles the matter in a conclusive way. But then, that is more to the disadvantage of the Muslim than of the Hindu side. If the Muslim community was effectively using the place, then in those thirteen years under discussion it should have produced some documents proving it.

In a memorandum of Muslim MLA's from Uttar Pradesh to the chief minister20, not more is claimed than that prayers were offered until 21/12/1949 without any restriction. It is a fact that there was no restriction on offering prayers, but in all this happy unrestrictedness, how many devotees effectively came to pray? These MLA's are not even claiming that the place was the community mosque for a designated group of local Muslims, let alone proving it.

In a comment on the VHP list of documents presented to the government of India (6/10/89), the BMMCC again fails to make this full claim.21 Commenting on two documents which the VHP has included as supporting its case, two Waqf documents of 1940 and 1941, the BMMCC can only dismiss them as not very legible, and then quickly jumps to comment on the events of 1949 when "Muslims of the place were being subjected to harassment and prevented from offering namaz in the Babri Masjid". Reading not very legible documents is not going to convince many people.

The long list of AIBMAC documents presented to the government on December 23, 1990, again merely contain proof that the Muslims had legal access to the place, not that it actually was their regular prayer-ground.

The claim that the Babri Masjid was a normally functioning community mosque up till 1949, is also rendered unlikely by what happened just before the take- over. It seems that the appearance of the idols on 22 December 1949 was not at all unannounced. Justice Deoki Nandan Agarwala mentions, in an appendix to an open letter to the prime minister22, that on 16 October 1949, group recitation of the entire Tulsi Ramayana started in different places in an around the disputed property in order to purify it, and the Ram devotees removed the remnants of the graves of the Ganj-i Shaheedan (Martyrs' place, the burial ground of the Muslim victims of the 1855 battle over the nearby Hanuman Garhi temple). If the place had been in regular use as a community mosque, this would have been impossible, or at least it would have occasioned serious riots.

The course of Muslim participation in litigation over the site is also not really compatible with the continuous use of the Masjid up to 1949. If the Sunni Waqf Board was effectively managing the Masjid in 1949, why did it not immediately start litigation to reclaim its stolen property, especially since the theft would have interfered with the community life of the local Muslims in a very frontal way ? In fact, the Sunni Waqf Board only entered litigation in 1961, just five days before the twelfth anniversary of the take-over, on which date any claims became time-barred.

Also, in its 1961 plaint, the Sunni Waqf Board is conspicuously silent about any details of an actual mosque management : who was effectively in charge of the Masjid as its mutwalli, if at all there was one ? When was the repair of the building (damaged in 1934 riots) by the British authorities completed, and when was namaz resumed ? The Waqf Board has nothing more to offer than the general assertion that namaz was offered both and after the said repairs. As we have seen, that statement is correct in the sense that the place was available for namaz, so that individual Muslims could go there, but so far not substantiated in the sense that it was used for regular community prayers.

After the enactment of the U.P. Muslim Waqfs Act in 1936, the District Waqf Commissioner of Faizabad made a complete inquiry, and the fact that he really had to inquire again shows how non-alive the Masjid was. In his report (16/9/38), he does mention someone who was known as, and called himself, the mutwalli of the Babri Masjid. The man, Syed Mohammed Zaki, was a Shia and traced his ancestry and his job to Mir Baqi, also a Shia. However, he was an opium addict, unsuited for his duties, and this could be seen from the neglected state of the Masjid. So, according to this official Waqf report, the place was neglected; and apparently, nobody in the Ayodhya Muslim community was doing anything about it. And even after the report was submitted, and even after it was published in the gazette of the Sunni Waqf Board in 1944, neither the Sunni nor the Shia Waqf Board stepped in to effectively take care of the Masjid.23

Incidentally, it seems that the name Babri Masjid became the official term from this report onwards, as before it was mostly referred to as Masjid-i Janmasthan.

What Shias and Sunnis did do, was to quarrel over whether it was a Shia or a Sunni mosque. Again, their argumentation centered around historical claims, such as that Babar was a Sunni, and that Mir Baqi was a Shia. It did not focus on the actual use of the mosque, claiming that the users were mostly Shias (c.q. Sunnis), or whether they did the Shia or the Sunni thing on the festival Muharram. The British court ruled, in March 1946, that it was a Sunni Waqf property, but that it had been shared by Sunnis and Shias, in the sense that there was no prohibition for either to use it.

From a report dated 10/12/1949, by Waqf inspector Mohammed Ibrahim, it is clear that the official mutwalli of the Babri Masjid was systematically the nambardar (revenue collector) of the village Sahanwa, several miles away but still in the Faizabad district. This Shia functionary was automatically deemed to be in charge of the Babri Masjid, which otherwise did not have any manager of its own. But the Babri Masjid job was only nominal, and the mosque was not taken care of.

The report also said that due to fear of the Hindus and Sikhs, nobody offered namaz in the Babri Masjid, and that travellers who stayed there for the night were abused and harassed by the Hindus from the near-by establishments. We should see this state of affairs against the background of the 1934 riots around the Babri Masjid, triggered by a cowslaughter. These riots made many victims and the building was seriously damaged. Several people were killed inside the mosque, which desecrated it in Muslim eyes. According to justice Deoki Nandan, even after the British had the building repaired, the Muslims did not come/return to effectively use the mosque, for fear of the Hindus, especially the martial monks of the three nearby Akharas (Nirmohi, Nirvana and Digambar).

It is even disputed whether the Masjid was effectively used before 1934, and even before 1855. Dr. Harsh Narain has summarized an 1858 document by one Muhammad Asghar (demanding the removal of the Ram platform just outside the Masjid) : He has mentioned that the place of Janmasthan has been lying unkempt/in disorder (parishan) for hundreds of years, and that the Hindus performed worship there.24

A second document that dr. Narain quotes, is a paragraph from a book by local Urdu writer Mirza Rajab Ali Beg Surur : "A great mosque was built on the spot where Sita ki Rasoi is situated. During the reign of Babar, the Hindus had no guts to be match for the Muslims... Aurangzeb built a mosque on the Hanuman Garhi... The Bairagis effaced the [Aurangzebi] mosque and erected a temple in its place. Then idols began to be worshipped openly in the Babari mosque where the Sita ki Rasoi is situated." So the grip of the Muslims on the sacred places of central Ayodhya was so weak that they couldn't even prevent the demolition of a mosque. In that context, mr. Surur's observation on the Babri Masjid may well indicate what it says, viz. that the Babri Masjid was abandoned by the Muslims and even sometimes used by the Hindus (until it was prevented, perhaps in 1855, or at any rate by the British from 1856 onwards).

The testimony by the Austrian Jesuit Joseph Tieffenthaler, who visited Ayodhya in 1767, also seems to be saying that the Masjid had been re-occupied by the Hindus.25 What is more, neither he nor, to my knowledge, any of the Muslim sources, mentions Muslim worship in the Babri Masjid. These are indications for what many common people in Ayodhya have told me : that the Babri Masjid has not been a real mosque for most of its history. With such a prehistory, it also becomes understandable that the local Muslim community in the 1930s and 1940s could have a mosque standing there and yet not use it. What kept them away, just like (according to the above mentioned sources) in the days of Nawabi rule, was the Hindu presence. The Hindus did not dare to defy the British rulings concerning the place, but were nonetheless strong enough to constitute a threat for Muslims who wanted to assert too much of a presence.

As against the strong indications that the mosque was not really functional, it is reported that there is one very authoritative witness to the contrary still alive today : Maulvi Gaffar, described as "the Imam of Ayodhya's erstwhile Jama Masjid... The last time he had led the Friday prayers at the Babri Masjid was 41 years ago, on December 22, 1949. Then the idols appeared and the District Magistrate K.K. Nayar asked him to suspend activities in the masjid for three to four weeks, while an inquiry was made. The 90-year old Imam says he is still waiting to resume his vocation."26

Of course, this testimony is presented in a very secularist paper, and I have found out by now that secularist journalists have no scruples at all about wrongly describing or misquoting their interviewees. Compared to the testimony of Waqf and Court documents, that is still no reliable counter-proof. In fact it is rather strange that the BMMCC in its reply to the VHP presentation of documents, does not mention this testimony. So far, to my knowledge, this testimony has not brought up by the pro-Babri side in any context where hard (challengeable and verifiable) proof is required.

Yet, judicially the Babri case may stand or fall with the proof that it was a regular mosque up to 1949. After all, the Court Order of the Civil Judge, Faizabad, of March 3, 1951, based its decision to guarantee the Hindu plaintiff the right of worship in the building, partly on the information that it had not been used as a mosque since at least 1936 : "It further appears from the copies of a number of affidavits of certain Muslim residents of Ayodhya that at least from 1936 onwards the Muslims have neither used the site as a mosque nor offered prayers there... Nothing has been pointed to discredit these affidavits..."27 If the man described as the erstwhile Imam did not go to court at that time to contradict the statements by his fellow Muslims, well, then I would doubt he really was the Babri Masjid Imam. Until the judge's assumption is disproven, this must count as the official version : on the strength of local Muslim testimony, the Babri Masjid was not in regular use since at least 1936. If any firm counter-proof had come up by now, I guess we would have seen it : the pro-Babri faction has enough media at its disposal to present the strong points in its case.

Nevertheless, to conclude the discussion of the status of the Babri Masjid just before its conversion into a Ram Mandir, I cannot say that either side's case is as yet 100% convincing. There have certainly been individual Muslims offering namaz in the Babri Masjid in the forties, but from the available evidence it seems that it was not a regular mosque functioning as the real community centre of the local Muslims.

Apart from the factual question of the effective status of the disputed building in 1949, a judicial settlement of the dispute would have to base itself on technicalities like Waqf (and other trusts) property jurisprudence and the division of the domain in three parts with different ownership titles. I will not go into those here.28 Before the Court could go into those technicalities, it had, however, to decide first whether the Sunni Waqf Board's plaint was not time-barred. It was filed five days before twelve years after the Hindu take-over. Now, for suits of declaration, a limit of six years is prescribed, but for suits of possession, the limit is twelve years. But it must be more complicated than that, because at the time of writing, the matter has still not been decided. The decision had been announced for October 31, 1990, but it was once more postponed.

Meanwhile, there are doubts about how independently the judiciary apparatus can still function in the present circumstances. When justice K.M. Pandey ordered the locks removed from the Mandir gate, on February 1, 1986, many secularists said that this was a Congress-sponsored quid pro quo with the Hindus in return for the infamous Muslim Women's Bill.29 That is of course a very serious allegation against the judge. What did happen, is that the Congress government first asked the VHP to file a petition to get the locks removed. When the VHP refused, the Congress moved one of its own people to file the petition, which was granted by the judge. This did not require any bribing or otherwise influencing of the judge : the argumentation of the petition was such that a positive Court ruling was virtually assured.

Shortly before the Kar Seva, the same judge was refused a promotion by the Union law minister at the insistence of U.P. chief minister Mulayam Singh Yadav, against the advice of the senior judges, which is normally followed. Mulayam, in the middle of his propaganda and military build-up to prevent the Kar Seva programme, justified his veto on the ground that justice Pandey is a communalist.

Lawyers and judges have protested against this interference. If a judge can be punished by the executive power for the contents of his Court rulings, then that is an intolerable breach of the separation of the legislative, executive and judiciary powers, one of the cornerstones of a modern democratic polity. The secularists, champions of modernity against obscurantism, have in this case condoned this Ancien Regime practice by their silence. They have not stood up to remind Mulayam that, according to their own earlier opinion, justice K.M. Pandey had only acted on government orders.

In January 1991, when Mulayam and the central government had become critically dependent on Congress support, and Congress did its best to placate the Hindu electorate as much as possible, justice K.M. Pandey was given his promotion after all.30

The essence of the Muslim position in the judicial debate has been that the de facto ownership since 1528 creates a title, no matter whether the acquisition then was legitimate or not. However, this title by accustomed possession only counts if the de facto possession went unchallenged. If the victimized party continues to claim its stolen property, even if the existing power equations don't permit restoring it, then de facto possession does not create a valid title. And it is well-attested that the Hindus kept on claiming the site as much as the situation permitted. So, even if the matter is treated as purely a title suit over some real estate, the Hindus do have a leg to stand on when they claim the Ram Janmabhoomi site.

But of course, this dispute is not really an ordinary title suit.

4.2 Disputed competence of the judiciary

The more fundamental question in the debate on the juridical dimension of the Ayodhya, is whether the issues involved can at all be adjudicated by a law court charged with checking legality in terms of the laws of the Indian Republic founded in 1947 and endowed with a Constitution in 1950. The VHP has rejected the authority of the Courts in this matter. The Babri Masjid groups have opposed this stand and demanded that the VHP abide by the Court verdict. But in October 1990, Imam Bukhari of the BMAC has also declared that if the court ruling goes against the Muslim demands, then he will not accept it, and an agitation against the verdict will be launched.31

Of course, the VHP have a point when they argue that their opponents are in no position to lecture them about abiding by Court verdicts. First of all, there are a number of articles in the Constitution which are not being implemented, and of which the implementation is not even actively demanded (often opposed) by the secularist parties and critics. Among them:

  1. Article 15, prohibiting discrimination, which is effectively thwarted by the separate religion-based civil codes, and by the almost unbridled imposition of reservations in recruitment for government jobs; moreover, this Article is violated by Article 30, which gives to minorities the right to establish and administer educational institutions of their choice, but forgets to grant the majority the same right - unique in world history; it is also violated by Article 370, giving a special status to Kashmir and effectively giving a number of privileges to Kashmiris denied to other citizens.

  2. Article 44 mandates the establishment of a common civil code, which Muslim organizations refuse (they demand the scrapping of this Article), and which went out of reach for a long time when the Congress government gave in to the Muslim demand to overrule a Supreme Court verdict and enforce Shariat rulings on divorcee maintenance through legislation.

  3. Article 48 wants the state to enact prohibition of cowslaughter; Kerala, West Bengal and Nagaland have not passed any such act, and in several other states the act is openly violated ; India is in fact a beef-exporter.32

Coming to the issue of abiding by court verdicts, we find the record of the parties other than the Hindu communalists has not been all that impeccable. Some examples :

  1. Beru Bari was a district bordering on East Pakistan, awarded by Radcliffe to India. When Pakistan minister Liaqat Ali wanted it, Nehru obliged. The Supreme Court struck down the agreement, but Nehru made his captive parliament overrule the verdict, and ceded the territory.

  2. Similarly, the Supreme Court verdict in the well- known Shah Bano case was overruled by a law, in order to appease Muslim fundamentalist agitation.

  3. When Indira Gandhi was convicted for using unfair means in the elections, she organized demonstrations in which the mob clamoured for physical action against the judge, and she shouted: "These are my people and my judges".

  4. V.P. Singh, champion of value-based politics, faced with the possibility of the Supreme Court striking down the implementation of the Mandal report, declared that he would have it implemented anyway.

  5. When some leftists demanded a ban on the Shilanyas ceremony in Ayodhya, and on the Ram Shila processions, the Supreme Court dismissed the demand, arguing that these activities are but an exercise of the freedoms guaranteed by the Constitution, and that even the threat of riots does not nullify constitutional rights, since it is the duty of the governments to protect the exercise of constitutional freedoms against such threats of violence. Nevertheless, the secularist/Stalinist intelligentsia has been shouting scandal that the government did not ban the Shilanyas and the processions, and has been deflecting attention from the Supreme Court's upholding the constitutional rights which Hindus also have. In their comments afterwards, they have kept on attacking Rajiv Gandhi for not committing contempt of Court by taking the unconstitutional step of proclaiming a ban (the sweetest thing for a Stalinist mind) on the Shilanyas.

  6. A petition to ban mr. Advani's rathyatra from Somnath to Ayodhya was dismissed, since there was nothing illegal about it, Yet the secularists have kept on demanding the ban, and finally Laloo Prasad Yadav, chief minister of Bihar, has ignored the judicial decision and arrested mr. Advani.
  7. In spite of a High Court ruling upholding the pilgrims' right to have a Parikrama around Ayodhya, even in the heat of Kar Seva, the U.P. chief minister Mulayam Singh Yadav has effectively made it impossible. Moreover, he had the canopy over the Shilanyas spot removed against Court orders to preserve the status- quo.33 A Human Rights Society team released a report on December 14 in Delhi, in which it contended that the U.P. government had violated the Allahabad High Court orders by effectively preventing the Parikrama. This constituted an encroachment on the Hindus' religious rights.34

So, if the VHP wants to disregard a judicial ruling on Ayodhya, it is in more or less good company. But then there is still a difference. While the above-mentioned secularists have disregarded or violated Court orders without disputing the competence of the Court in the matter concerned, the VHP disputes that any Court can have any authority in this matter.

On December 18, when it seemed that the government was willing to let the decision depend upon the archaeological evidence, which went in favour of the Hindu claim, a Hindu religious leader still insisted that no consideration except the Hindu belief should count Sri Sugunendra Thirtha Swami of Puthige Math (Udupi) declared that "archaeological proof should not clinch the Ram temple issue".35 After all, suppose Babar had been more careful and removed every trace of the temple he demol- ished: then the Hindus' position would remain equally justified, yet the archaeological evidence would not be taken as going in their favour. So, the Hindu belief alone should suffice as a ground for leaving the place to the Hindus.

The demand to put this item of belief above the authority of the courts, is in my opinion not so much a display of principled non-secularism, as rather a display of mistrust in the Indian state. Hindus expect the state not to respect Hindu beliefs and Hindu sacred places. They know that, ever since Indira's favouring committed judges, the judiciary is also not what it used to be. They expect that the state will consider other things more sacred and important than the Hindu sacred places : among them, the Muslim title to the site, acquired through force by the invader Babar, and never annulled by the British colonizer.

However, formally the VHP's and the abovementioned Swami's stand is non-secular. It does not want to submit a decision to the secular authorities. Yet, a piece of land being A's rather than B's property is a secular matter, isn't it?

Well, that is precisely the point. In the Hindu view, the piece of land is sacred. It is the deity's property.36 Decisions concerning it are therefore decisions with a religious dimension. Now, as secularism means a divorce of state and religion, the state should not interfere with religious affairs. I am not sure this would be convincing to a secularist, but it certainly has logic.

Some of the Babri Masjid advocates, notably Syed Shahabuddin, have said that a Masjid is Allah's property, but that Allah doesn't want it, and doesn't answer prayers offered in it, if it was built on disputed land. Of course, Islamic Scripture has never had any objection to building mosques on sites disputed by Kafirs ; but if mr. Shahabuddin wants to play the tolerant Islam game, we should join him and compel him to be consistent (instead of the tactical changes of position he and other Babri advocates have been making). So, Allah doesn't want the Babri Masjid, which has irrefutably been built on a site stolen from the Hindus. With Allah's help, this non-secular approach to the dispute yields an unambiguous solution and relieves the secular judges of an unpleasant case.

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