SC Ayodhya ruling: CJI Gogoi’s lack of transparency is a moral lapse
A G Noorani
Indian lawyer, constitutional expert and political commentator
A photograph of the Babri Masjid from the early 1900s. Photo: The British Library Board
“No matter whether the Constitution follows the flag or not, the Supreme Court follows the iliction [election] returns.” This bon mot was composed by Finley, Peter Dunne, the gifted Illinois humourist (1867-1936) in the classic “Mr. Dooley’s Opinions: The Supreme Court’s Decisions. It expressed the scepticism with which decisions of the highest court are regarded in the wake of a change of regime representing a change of political clime.
This writer quoted it in an article on the Kissa Kursi Ka case in which the Supreme Court performed a somersault on its previous rulings after Indira Gandhi returned to power in January 1980 (Economic & Political Weekly, July 14, 1980). It was published when Sanjay Gandhi was alive. That upright police official, N.K. Singh’s plea for intervention was rejected by the court despite the fact that “the accused had merged with the state”. This is precisely the situation in the Babri Masjid case today.
A common reaction to the Supreme Court’s “unanimous” judgment in the Babri Masjid case, delivered on November 9, 2019, is that it reflected the majoritarian climate, fostered by the Rashtriya Swayamsewak Sangh (RSS) and its progenies the Bharatiya Janata Party (BJP) and the Vishwa Hindu Parishad (VHP).
“Next to battlefields it is in the court-rooms that some of the greatest acts of injustice in the history of the world have taken place.” — Maulana Abul Kalam Azad’s statement in court on January 24, 2019, for which he was charged with sedition.
Concluding his statement, Azad told the Magistrate:
“The dock has fallen to our lot and to yours the magistrate’s chair. I admit that this chair is as much necessary for this task as this dock. Let us finish this memorable job. The historian and the future have long been waiting for us. Allow us to come here often and you may also continue to write your judgments. This will go on for days till the doors of another court are flung open. It will be the Court of the Law of God. Time will be its judge and will write its judgment. And its verdict will be final.”
One shudders to think of the verdict history will pass on our Supreme Court’s judgment on November 9. Contemporary opinion is divided; most acclaim it, including the “usual suspects” of Uncle Toms among Muslims. But a significant number of writers of note, cutting across the religious and political divide, sharply criticized it for its easy reflection of the majoritarian clime.
India’s first Attorney General M.C. Setalvad censured the Court’s majority judgment in the Golaknath case (1967) as “a political judgment” (My Life, pages 587-588). But that was a judgment. This one is anything but that. It is a shoddy piece of work, shoddily performed. With British rule came courts of law in India administering justice, the format which English courts of law had adopted for centuries. Law reports mention the author of the main judgment as also those of judges who concurred or dissented from it.
In a totally unprecedented breach with centuries of settled practice, this one judgment sets out at its end, at page 929, signatures of all the five judges on the bench which heard the case, preceded with an equally unusual last tell-tale bit.
“One of us, while being in agreement with the above reasons and directions, has recorded separate reasons on ‘whether the disputed structure is the birth-place of Lord Ram according to the faith and belief of the Hindu devotees’.”
At the heart of the case was dispute over the title to an immoveable property, the mosque. It was to be decided like any such dispute, according to the law of the land. The Allahabad High Court openly gave primacy to faith over the law. The Supreme Court does just that, but converting it in the style it has made its own.
Our Addendum-Judge has let the unwashed cat out of the bulging suspected bag—the decision is based on “the faith and belief” of the community in the majority, the Hindus. Where was the need to refer to all this irrelevance, pray?
The suspicion is confirmed when you read that judge’s own reasons for his “Addendum” and that 116-page document itself. At the very outset he poses the query “whether disputed structure is the holy birth-place of Lord Ram as per the faith, belief and trust of the Hindus?” Substantially similar, but the language differs from that in the judgment; an inexcusable inaccuracy in a judicial pronouncement.
The Addendum dilates at length on “the concept of Hinduism and its sacred cities”. It is charged with religious fervour and concludes with this exquisite para (170).
“It is thus concluded and on the conclusion that faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janamasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above.” The documentary evidence is mostly religious texts. Oral evidence on beliefs is irrelevant. But, so, indeed, is the entire exercise. (emphasis added, throughout).
L. K. Advani admitted on September 30, 1990:
“No one can prove that it was the birth place of Shri Rama.” It was a matter of belief (The Independent, October 1, 1990).
Can this belief receive judicial sanction to the point where it can override the moral and legal rights of others? The court disapproves of the placing of idols forcibly and deceitfully in the mosque on December 22-23, 1949, and its demolition on December 6, 1992.
In a letter to Prof. Hiren Mukerji, on June 5, 1989, Vajpayee accepted: “It is not possible to pinpoint the exact spot where Ram was born” (Organiser, September 24, 1989). The RSS supremo M.D. Deorus said: “This is not a case in which the judiciary can pass a judgment. What type of evidence are the Hindus expected to produce? That Ram was born and that his birth place is Ayodhya?” (Organiser, March 12, 1989). He was, in this case, honest—there was no evidence. That is why the BJP said in its Palampur resolution: “Litigation certainly is no answer” (June 11, 1989).
What brought about the change—the bogus archaeological expeditions? The RSS and the BJP still adhered to their 1989 stand. It was dramatically reversed this year. Why? Why? On October 30, 2019, the RSS supremo Mohan Bhagwat held a meeting and asked the people to accept the Supreme Court’s verdict “wholeheartedly” (Asian Age, October 31, 2019). What inspired so radical a change in people who distrust the courts?
Transparency is the test of the integrity of the judicial process. Why was it abandoned in this one case? No record of the writer of the judgment or of the Addendum? For both lapses, the leader of the team, Chief Justice of India Ranjan Gogoi, is directly responsible along with the judges themselves. He ought to have mentioned the author of the judgment and of the Addendum. Its author is guilty of a moral lapse as is the CJI and the four others who condoned and connived at his anonymity. That judge himself is no shrinking violet. That he shrank from mentioning his name betrays a lot. These lapses vitiate the entire exercise.
Fatal flaw overlooked
In the entire discussion on the judgment one fatal flaw has been overlooked. The Allahabad High Court had brazenly flouted a unanimous ruling of a five-member bench of the Supreme Court in 1994. In 2019 the Supreme Court has done worse than ignore that. It has connived at it. Here are the hard facts.
After the demolition of the mosque, Parliament enacted the Acquisition of Certain Area at Ayodhya Act, 1993, acquiring the lands in question. Simultaneously, the President sought the Supreme Court’s advisory opinion on a question. This was on January 7, 1993, the very day the ordinance, which became an Act, was promulgated. The question referred to the court was whether a Hindu temple prior to the construction of the mosque existed. Section 4(3) of the Act aborted legal proceedings in respect of title to the acquired property. On September 14, 1994, the government stated to the Court that if the question was answered in the affirmative the lands would go to the Hindus; if in the negative, “then Government action will be in support of the wishes of the Muslim community”. In Ismail Faruqui & Ors. vs Union of India and Ors. (1994; 6 Supreme Court Cases 360), the court struck down Section 4(3) which aborted and extinguished legal proceedings. On this the court was unanimous. It was divided on the issue whether Section 4(3) was severable from the rest of the Act. Justices A.M. Ahmadi and S.P. Bharucha held it was not and struck down the entire Act. The CJI, M.N. Venkatachaliah, and Justices J.S. Verma and G.N. Ray held it was severable and upheld the rest of the Act. All five declined to answer the President’s question.
Justice J.S. Verma’s opinion is relevant: “The rival claims to the disputed area which were to be adjudicated in the pending suits can no longer be determined therein as a result of the abatement of the suits. 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 the construction of the mosque there in 1528 A.D. by Mir Baqi. Ostensibly, the alternative 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 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 alternative dispute-resolution mechanism in substitution of the pending suits which are abated by Section 4(3) of the Act.”
Yet on October 23, 2002, the Allahabad High Court issued directions to the Archaeological Survey of India (ASI) to have the site surveyed by Ground Penetrating Technology or Radiology (GPR) whose report on February 17, 2003, indicated anomalies. On March 5, 2003, the court directed the ASI to excavate the site.
In effect, the query in the President’s Reference was brought in by the backdoor. The President’s question rejected by the Supreme Court read: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid… in the area on which the structure stood?” Nonetheless, the High Court ordered the ASI on March 5, 2003, to answer this very question in these terms: “Whether there was any temple/structure which was demolished and mosque was constructed on the disputed site?” On that single ground of defiance alone, the High Court’s judgments invited a clear rejection by the Supreme Court. That was not done.
Has such excavation been undertaken ever before in any civil suit on title? This time it was, and the Supreme Court’s judgment has not a word of disapproval for this breach of its own ruling which was unanimous; and transparently so.
In his essay on Frederick the Great, Macaulay wrote:
“Is it not perfectly clear that, if antiquated claims are to be set up against recent treaties and long possession, the world can never be at peace for a day? The laws of all nations have wisely established a time of limitation, after which titles, however illegitimate in their origin, cannot be questioned. It is felt by everybody, that to eject a person from his estate on the ground of some injustice committed in the time of the Tudors would produce all the evils which result from arbitrary confiscation, and would make all property insecure. It concerns the Commonwealth—so runs the legal maxim—that there be an end of litigation. And surely this maxim is at least equally applicable to the great commonwealth of states; for in that commonwealth litigation means the devastation of provinces, the suspension of trade and industry” (From Lord Macaulay, Critical and Historical Essays, Longmans Green & Co., 1877, page 666).
The Shahidgunj case
Shahidgunj case in Lahore was Ayodhya in reverse. Muslims’ claims were rightly rejected as being barred by the law of limitation. Three courts upheld Muslims’ claim that in 1722 Falak Beg Khan created a wakf (trust) and dedicated the land to build a mosque. All three courts, held—and rightly so—that by adverse possession to Sik hs after 1762 Muslims had lost title to the site and the mosque.
All the elements of the Ayodhya case were present—a mosque in the adverse possession of another community, Sikhs; its demolition by them; frenzied agitation by Muslims; involvement of religious figures; Muslim frustration with the courts and moves in the Punjab Assembly to enact legislation for the takeover of the site. They all failed. To this day, when there is hardly anyone to visit it, the Gurdwara Shahidganj stands in Lahore as it did before August 15, 1947. (Masjid Shahid Ganj in Shiromani Gurdwara Prabhandak Committee; 67 Indian Appeals 251).
On March 16, 1938, the Prime Minister of Punjab (as Chief Ministers were known then), Sir Sikandar Hayat Khan, made a statement in the Assembly. He pointed out that “if non-Muslims claimed similar immunity for their places of worship in the Punjab which had passed out of their hands into Muslim possession, it would be illogical to resist such a request.” He drew the point home with rigorous logic: “If the Governor were to give his sanction for the introduction of such a Bill in the Punjab, with the consent of his Ministry, it would provoke similar Bills in those provinces where the non-Muslims are in a majority, for the restoration of many historic and important places of worship originally belonging to non-Muslims but now in Muslim possession, and, in the light of the precedent set in the Punjab, it would be impossible for Muslims logically to invoke protection against such Bills under the Government of India Act….” Five days later, on March 21, the Muslim League’s Council endorsed this statement. At its special session in Calcutta on April 17-18, 1938, Jinnah said that “certain individuals on both sides were and have been aggressive to each other, and they have created a situation which has involved the two great communities into the position of an impasse. I deplore the excesses committed on both sides.” He was no Advani.
Advani & co. adopted a diametrically opposite stand for political ends. N.A. Palkhivala wrote in 1993 in The Times of India:
“The courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, questions of opinion or belief or political wisdom. It is not the court’s role to be an extended arm of the executive. Public opinion of public beliefs may weigh with the executive in shaping governmental policies. But it is not for the court to decide whether there are cogent grounds for opinions or beliefs which the people may choose to entertain. …Recent newspaper reports suggest that some Cabinet Ministers are of the view that the Supreme Court should be called upon to decide the following questions: (i) Whether the devotees should be allowed to have darshan of Rama Lalla at the makeshift temple on the disputed site at Ayodhya. (ii) Whether the government should rebuild the mosque which was dismantled. (iii) Whether a mosque and a temple should both coexist at Ayodhya. Is it the function of the court to decide such questions?
“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 Babar. 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…. 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. First, 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.…
“Should any religious place of worship be razed to the ground because a structure pertaining to another religion stood in its place before? Archaeology is the study of the art, customs and beliefs of ancient times. It can afford a ground for a 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? Does it help in any way to confuse separate and distinct questions? Whether Rama was born at a particular place is wholly distinct and different from the issue whether a temple existed at that place. Therefore, are we in any way dislodging the beliefs of those who hold a certain spot to be the birth place of Rama by saying that no temple existed there?”
The Supreme Court’s approach is fundamentally wrong and one-sided. Outside the mosque but within its complex stood a platform known as Ram Chabutra or Janmabhoomi temple. The evidence is overwhelming that it was this Chabutra, not the mosque, which was regarded as the site of Shri Ramachandraji’s birth place.
Days before the placing of the idols, schemes were being prepared to build a “Vishal Mandir” on the Chabutra. Mumbai has a traffic island which houses a temple, a church and a mosque cheek by jowl. In 1855, Hindus and Muslims clashed over Hanumangarhi well outside the mosque complex; not over the mosque itself. Prof. K.N. Panikkar wrote: “An Historical review” which was published in Anatomy of A Confrontation edited by Sarvepalli Gopal (Penguin, 1991, pages 22-80).
Panikkar wrote: “The cult of Rama seems to have become popular only from the twelfth century. Yet, even in the fifteenth and sixteenth centuries Ramanandis had not settled in Ayodhya on a significant scale. It became a centre of the Rama cult, as controlled by the Ramanandi order, only from the eighteenth century. Most of the Rama temples came into being only after that….
“An important dimension of the Hanumangarhi episode is that it indicated the absence at that time of any linkage between the Babri Masjid and the Janmasthan in Hindu consciousness. Although the Bairagis captured the masjid in which the Muslims had taken shelter, they did not occupy it or advance a claim to it. Instead they retreated to the Hanumangarhi almost instantaneously. It is also important that during the course of the inquiry no Hindu had mentioned the earlier existence of a temple at the site of the Masjid, even as a counter to the Muslim claims to the Hanumangarhi temple. The local tradition about the Janmasthan temple to which the British officials have referred does not appear to be current in 1855.”
The Chabutra was set up in 1855; a railing and a wall were built to separate it from the mosque. On January 29, 1885, Mahant Raghubar Das sued the Secretary of State for India. He said: “Suit for awarding permission for constructing of temple in prohibiting the defendant, to the plaintiff over a Chabutra Janam Asthan situated in Ayodhya. …The Janam Asthan, situated at Ayodhya in the city of Faizabad, is an old and sacred place of worship of Hindus and the plaintiff is the Mahant of that place of worship. …The said Chabutra is in possession of the plaintiff and on account of there being no building over it, the plaintiff and others experience great difficulties and hardships on account of excessive heat in summer and excessive cold in winter and rain in rainy season. There can be no harm to anyone if temple is constructed to cover this Chabutra, on the other hand if the temple is constructed the plaintiff and other faqirs and pilgrims will get facilities of every sort.”
The Sub-Judge said, “In 1855, after the fight amongst Hindus and Muslims, a boundary wall was constructed to avoid future disputes, so that the Muslims should worship inside that wall and the Hindus should worship outside that wall, hence the Chabutra and the land which is situated outside the boundary wall belong to Hindus and the plaintiff.”
A map was prepared. It showed a “Masjid” separate from the Ram Chabutra. Extensive documentation and a visit to the site reflected earnest. Pandit Hari Kishan, Sub-Judge, Faizabad dismissed the suit on December 24, 1885, on the grounds that erection of a temple on the Chabutra might provoke clashes. The District Judge F.E.A. Chamier dismissed the appeal on March 18, 1886, holding that “this Chabutra is said to indicate the birthplace of Ram Chandra. In front of the gateway is the entry to the masonry platform of the Masjid. A wall pierced here and there with railings divides the platform of the Masjid from the enclosure on which stands the Chabutra.”
The Judicial Commissioner, Awadh, W. Young, also dismissed the appeal. “The matter is simply that the Hindus of Ayodhya want to create a new temple or marble baldacchino over the supposed holy spot in Ayodhya said to be the birthplace of Shri Ram Chandar. Now this spot is situated within the precinct of the grounds surrounding a mosque erected some 350 years ago.
“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, (2) Ram Chandar ki Janam Bhumi.” (For the texts of these documents vide A.G. Noorani (ed.) The Babri Masjid Question 1528-2003, Tulika Books, Vol. 1, pages 175-185).
Three judges heard and decided the case in admirably thorough judgments from December 1885 to November 1886. In every single case it was the Chabutra that figured as Ram Janmasthan, birth place; never, not once, the mosque. It proves to the hilt (a) that the Ram Mandir demand is a later and politically motivated demand, and (b) the Muslims occupied and prayed in the mosque.
The Supreme Court is right in holding that the rule of res judicata does not apply; that is, it does not at all bar the cases filed some 65 years later. That technicality apart, what message do the proceedings of 1885 convey? It does bar the Hindu case on the mosque on the merit. Do you find any demands for a Ram temple since 1885? No; not even by Savarkar, let alone leaders like Bal Gangadhar Tilak or Madan Mohan Malaviya or Lala Lajpat Rai.
VHP clarion call in 1984
The RSS set up the VHP in Mumbai on August 29-30, 1964. Its founders were RSS boss M.S. Golwalkar, S.S. Apte and K.M. Munshi. The VHP set up the Bajrang Dal in mid-1984. The VHP was to serve as the front. We owe to Neerja Choudhury’s reportage based on authoritative sources, for the pact with Indira Gandhi to open the locks to the desecrated mosque. The VHP gave its clarion call for this precisely on April 8, 1984—the masjid itself must be removed. A rath yatra began on September 25. Indira Gandhi’s assassination on October 31 compelled a halt. The pact was revived with Rajiv Gandhi—the locks at the gates must be opened before Shivratri on March 8, 1986. They were—on February 1, 1986, after a contrived court verdict. No notice was given to Muslims (Vide A.G. Noorani; The RSS; Leftword; pp. 207-208). The entire movement was political as Sushma Swaraj and Arun Jaitley admitted.
The VHP took over in earnest twenty years later on April 7-8, 1984, when its Dharma Sansad met at the Vigyan Bhavan in New Delhi and demanded removal of the three mosques at Ayodhya, Mathura, and Varanasi. Deflated in the elections, the BJP jumped on the bandwagon.
Courts do not enter into politics; but no court can ignore the RSS’ complete silence on the mosque until 1964. The Supreme Court says, “A pattern of worship and prayer emerges from the testimonies of witnesses—oral, belated and tailored. Hindus worshipped the idol of Ram at the Chabutra first and then pilgrims used to pay obeisance to the ‘Garb Grih’ located inside the three domed structure while making their offerings standing at the iron railing that divided the inner and outer courtyard” (page 629). This oral evidence is in the teeth of the incontestable, authentic court record of 1885-86. There was no claim to the masjid at all. The Chabutra itself was Ram’s janmasthan.
The court said: “Setting course through history, the cornerstone of the edifice for the Hindus is their faith and belief in the birth place of Lord Ram as the incarnation of Vishnu. Their faith is founded principally on the significance attached to Ayodhya in the following: (i) religious scriptures, principally the association of Ayodhya [Note, the city, not the mosque] with the presiding deity of Lord Ram in Valmiki’s Ramayan, Skand Puran and Sri Ramcharitmanas…. and (ii) travelogues, gazettes and books.”
But Goswami Tulsidas, a Ram devotee, is totally silent on the masjid in his Ramcharitmanas (1574). The masjid was built in 1528. “Tulsidas’ text is not an isolated example. An eleventh century inscription of a Gahadvala ruler records his pilgrimage to Ayodhya and lists the sites at which he performed rituals and offered worship. Ramjanmabhumi is not one of them. Also in a large number of Sanskrit texts of this period such as those of Lakshmidhara, Mitra Mishra, Jinaprabhasuri or the Bhushundi Ramayana and Puranas, which refer to major places of pilgrimage, including Ayodhya, there is no mention of the Ramjanmabhumi. The most important pilgrimage spot at Ayodhya was the Gopratara Tirtha. It appears that the Ayodhya Mahatmya (fourteenth to sixteenth centuries) was the first text which demarcated the Janmasthan and indicated it as an important place of pilgrimage. Yet, even in this text, the detailed instructions to pilgrims regarding worship and offerings at the Janmasthan do not have any reference to a temple.
“That the Babri Masjid was constructed at the site of a temple is a relatively recent belief. It had its origin in the nineteenth century reconstruction of the history of the subcontinent by the colonial rulers. In this reconstruction the history of religious communities and their mutual antagonism held centre stage. The history of Faizabad was no exception.” (Panikkar, page 29).
It is unsafe to rely on travelogue or gazetteers compiled by the English; both are based on hearsay. Tiefenthaler (1770), on whom the High Court relied as does the Supreme Court, believed that it was Aurangzeb who destroyed the temple and replaced it with a mosque. The devout Hindu who fought the cases in 1885 said no such thing. Fundamentally, as Palkhiwala pointed out, no court can or should evaluate such writings especially in the light of the case of 1885.
Uneven appreciation of evidence
Sad to say, the Supreme Court does not hold the scales evenly and fairly when it deals with the decisive issue of appreciation of evidence. It is pointless to derive comfort from its findings in favour of Muslims on the placing of idols in the mosque on December 22, 1949, or on its demolition on December 6, 1992. None can doubt either, surely.
It is the Muslims’ right to the masjid which is in issue. It holds, “the Hindus …maintained immediate and continued contest over their exclusion from the inner courtyard in 1877”. Pray, how? Because, adds the next sentence, “another door was opened on the northern side of the outer courtyard by the British Government which was given to the Hindus to control and manage”. That door led to the Chabutra as well. One would think that if the Hindus could sue, as they did in 1885, they could very well have filed a suit on title thereafter. The court dilates on “justice, equity and good conscience”, overlooking the settled pre-condition that he who seeks equity must come with clean hands.
Hold your breath. Five judges of our Supreme Court assert that “a crucial [sic] aspect of the evidentiary record is the absence of any evidence to indicate that the mosque was, after its construction, used for offering namaz until 1856-7” (page 791). This was a mosque in Faizabad, neither Delhi nor Lucknow. Surely, it is for the contestants to rebut the presumption of namaz for which the masjid was built in 1528. How can anyone provide such evidence?
This bears on the Muslims’ adverse possession against a non-existent Hindu claim until 1964. A few pages later (page 798) we are told that the “financial assistance… provided by the British for the purposes of the maintenance of the mosque… would not amount to proving that the structure was used for the purpose of offering namaz”. Did the British spend money for the upkeep of a mosque in which none prayed? Indeed, there is evidence that Muslims objected in 1860 to the construction of the Chabutra and demanded rent for its use. The court notes that “the Chabutra was built in 1857 and was opposed by Muslims”.
With greater emphasis, at page 852, the Supreme Court says: “No evidence has been produced to establish worship at the mosque or possessory control over the disputed property… over the period of 325 years between the alleged [sic] date of construction in 1528 until the erection of railing by the colonial government in 1857. Hence, in the absence of evidence on record, no conclusion can be drawn that prior to 1857, the disputed site was used for worship by the resident Muslim community”. The judges held also that “the Hindu devotees of Lord Ram have consistently asserted their rights to the disputed property”. But the bit about absence of evidence on Muslims’ use is repeated ad nauseam (page 858). This is said to vitiate their claim to—adverse possession.
At page 882 the reasoning acquires an edge. The railing was put up by the British, not to separate the two sides but because of the Hindus’ claim to “worship inside the precincts of the mosque”. The Hindus made a “continued assertion of right to inner courtyard”. Strange then that they did not sue in 1885 or later for the mosque and said not a word until 1964 or move further until 1984. “The use of the area within the railing by the Muslims was contentious.” In the incontestable absence of contention until 1949 surely the Muslims’ adverse possession stands proved.
At page 891 the Court says “prior to 1856-7, there was no exclusion of the Hindus from worshipping within the precincts of the inner courtyard”—that is, within the masjid itself. Can you ever imagine any Muslim’s acquiescence in a non-Muslim offering prayers within his masjid? In the entire history of Islam is there any evidence of this? Muslims are asked by the court to prove that namaz inside the masjid was said between 1528 to 1857. Hindus’ claim to prayer within the same masjid is accepted without any credible evidence.
At page 899 the author of the judgment repeats that there is no evidence of namaz inside the mosque between 1528 and 1856, “a period of over 325 years”. Read this: “The Muslim account of worship prior to 1856 is conspicuously silent as opposed to the accounts of worship being offered by the Hindus.” None of those accounts speak of Hindu worship inside the mosque; only at the Chabutra.
The court asserts repeatedly and rightly that these were civil suits to be decided on a “preponderance of probabilities”. This test is discarded despite overwhelming evidence on the masjid. Notwithstanding the unanimous ruling of this very court in 1994, the present bench holds that “the archaeological findings on the nature of the underlying structure indicate it to be of Hindu religious origin, dating to twelfth century A.D.” However, title was not decided on the basis of this evidence.
The entire judgment is studded with gems like this: “There is no evidence… to indicate… that the offering of namaz was exclusionary of the Hindus”—they were present while the Muslims prayed! It is well known for centuries that the namaz is said in perfect silence; hence the riots over music before the mosque.
“The disputed site is one composite whole,” the court says repeatedly. Muslims are allotted five acres (page 923, paragraph 801). One is reminded of the Gujarati saying “gala kapi ne pagdi penav” (Slit the throat and crown the head with a turban).
The court did not stop at deciding on title to the land. It went further (page 924, paragraph 803) “to direct” the Government of India to set up a trust to whom the land would be given. It was directed to frame a scheme of the trust defining “the powers of the trustees including the construction of a temple”.
Doubtless a grand temple will be built. But what message will it convey to the world and to Indians? The court is very very sparing on the crimes of December 22, 1949, and of December 6, 1992. The word “alleged” is readily used. Installation of idols “according to the Muslims, led to the desecration of the mosque” (page 903).
Humbler men had no use for such equivocation. The FIR on December 23, 1949, lodged by Sub-Inspector Rani 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.”
The written statement in court by the State of Uttar Pradesh, signed by Deputy Commissioner, Faizabad, J.N. Ugra, on April 25, 1950, said “the property in suit is known as Babri Mosque and it has for 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. That on the night of 22 December 1949, the idols of Shri Rama Chandraji were surreptitiously and wrongly put inside it.”
Officials dealing with plans for a temple on the Chabutra, prior to December 22, 1949, were clear in their minds. 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 plans were foiled lest violence broke out. Thus, even in 1949 the Hindus wanted a temple on the Chabutra as the birthplace of Ram. In 2019 the Supreme Court ruled otherwise.
Modi has taken the judicial route to accomplish the RSS-BJP agenda of triple demands—Ayodhya, Article 370 and Muslim personal law. But this too shall pass. Muslims stood not a chance of success in this case. They must reject those five acres and reflect on combating the multi-pronged Hindutva offensive. So must the judges.
We are a split polity and the judges are caught in the maelstrom. They can receive no guidance better than that from the greatest judge, who never went to the Supreme Court, Judge Learned Hand. He said that the judiciary “must be content to stand aside from these fateful battles. There are two ways in which the judges may forfeit their independence, if they do not abstain. If they are intransigent but honest, they will be curbed; but a worse fate will befall them if they learn to trim their sails to the prevailing winds. A society whose judges have taught it to expect complaisance will exact complaisance, and complaisance under the pretence of interpretation is rottenness. If judges are to kill this thing they love, let them do it, not like cowards with a kiss, but like brave men with a sword.
“And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent, and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of ‘right and wrong—between whose endless jar justice resides’. You may ask what then will become the fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation.
“I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know—that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish” (Lecture on the Contribution for Independent Judiciary, 1941).
The Allahabad High Court gave the Muslims one-third of their masjid. The Supreme Court excludes them completely. It gives the entire land to the Hindus with an explicit direction to the Central government to build a Ram temple on it. Read this: “As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. … The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago….
“We are of the view that it would be necessary to direct the Central Government to frame a scheme in exercise of the powers conferred upon it by Sections 6 and 7 (of the Act) to set up a trust or any other appropriate mechanism to whom the land would be handed over in terms of the decree in Suit 5. The scheme shall incorporate all provisions necessary to vest power and authority in relation to the management of the trust or the body chosen for the vesting of the land.
“The Central Government shall, within a period of three months from the date of this judgment, formulate a scheme pursuant to the powers vested in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya Act 1993. The scheme shall envisage the setting up of a trust with a Board of Trustees or any other appropriate body under Section 6. The scheme to be framed by the Central Government shall make necessary provisions in regard to the functioning of the trust or body including on matters relating to the management of the trust, the powers of the trustees including the construction of a temple and all necessary, incidental and supplemental matters.”(page 926)
Would and could the court have passed this order if the masjid had not been destroyed? Both the sordid acts of 1949 and 1992 were crimes, offences under the Penal Code. Mobs do not violate “the rule of law”, states do. What right, power and jurisdiction has the apex court of a secular state to direct the government to construct the house of worship of any community? In doing so, the Supreme Court has gone beyond deciding the issue of title in a civil suit—it has descended into the arena of a communal conflict and stamped a blot on its reputation as it did in the habeas corpus case of 1976, and some others.
Remember, Gandhi was firmly opposed to state intervention in the construction of the Somnath temple. What kind of spectacle will a Ram mandir built on the fruits of crime present to India and to the world? Shri Ramachandraji has been regarded as the epitome of moral rectitude for centuries, Maryada Purshottam. But we have a pro-BJP writer proudly and revealingly declare “The construction of the Ram temple would not have been possible without the events [sic] of December 6, 1992.”
Madhav Godbole, a devout Hindu and Union Home Secretary then, thought differently. “I visited Ayodhya on December 29, 1992, in connection with the proposed acquisition of land and to review the law and order arrangements in the light of the earlier decision to permit darshan. Unlike other visitors from Delhi in the past who took darshan at the Ram Lalla temple and offered pooja there, I did not do so, nor did I accept any prasad. Though a devoted person myself, I believe that one’s religion is a personal matter. In any case, I had enough of Ayodhya and sincerely believed that God could not reside in that temple, the construction of which was associated with so much deceit and wanton violence” (Unfinished Innings, page 406).
India’s grand temple architecture is the envy of the world. How will it react to the sight of a temple built on the site of a demolished mosque? When the communal fever and opportunism are gone, Indians will look back in shame on a structure built with force and deceit.
Someday, in the years to come, when passions have subsided Indians will recall all the events of 1949 and 1992 and the Supreme Court and its judgment of 2019, which sanctified them, just as they do the court and its ruling of 1976. It was Indira Gandhi’s dictatorship which created the fear. In 1978 one of the judges admitted at the Press Club of India that they were cowards. He was Justice Y.V. Chandrachud.
This story first appeared here.