Babri Masjid-Ramjanmabhumi Case
Awaiting Supreme Court's Judgment in the Babri Masjid-Ramjanmabhumi Case
Irfan
Engineer
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.
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.
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.
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.
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