Babri Masjid-Ramjanmabhumi Case : hope that the Judgment of the Supreme Court restores confidence of all citizens in rule of law and the Constitution

The Supreme Court of India
The Supreme Court of India. (File Photo: IANS)

Babri Masjid-Ramjanmabhumi Case : hope that the
Judgment of the Supreme Court restores confidence of all citizens in rule of
law and the Constitution

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

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
Minster 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.

Babri Masjid-Ramjanmabhumi Case : 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 worshiped. 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.

Babri Masjid-Ramjanmabhumi Case : 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 ourter
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 Allahbad 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 worshiped 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.

Babri Masjid-Ramjanmabhumi Case : 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

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