Ayodhya Verdict 2010: Whither Indian Constitution!

1 November, 2010
By Ram Puniyani

The verdict given by Lucknow bench of Allahabad high court (Sept 2010) has been a landmark of sorts. On one hand it is culmination of the process of demolition of Babri Masjid, now that illegal act of demolition has got a legal sanction. On the other this judgment is the one based on every other consideration than the legal one. It has no rooting in the values of Indian Constitution, no guidance from the directive principles of the Constitution and no grounding in the law of the land.
Despite this glaring fact a large section of the popular opinion went on to keep quiet about it, or criticize it in a muted way. The atmosphere has been created that it is a balanced judgment pleasing all; it has been the best option in the present circumstances etc. We do need to recall that there was heaviness in the atmosphere before the judgment. The Hindus were apprehensive that if by chance there is violence and they or their near and dear ones are caught in the melee, it will be a disaster. Muslim minority on the other hand feared the destruction of their properties or loss of their lives in case the violence breaks out. Fortunately those who orchestrate the violence, as shown by the inquiry committee reports time and over again, chose not to unleash ‘celebratory violence’, as they had done in the aftermath of Babri demolition on 6th December 1992. This time while probably the RSS combine and communalized sections of society felt more jubilant then before, still they had restrained themselves from creating a situation where the violence takes place.

Muslims on surface felt a bit relieved that they do not have to suffer another cycle of violence and its aftermath. But they also felt let down by the court. They did feel that this judgment is a symptom of Hindu Rashtra in the offing. While there is a spectrum of opinion amongst Muslim community, now there is a feeling that even the law cannot protect their just rights. Deep frustration, anger and dejection are the response from large section of the Muslims who dared to speak. The atmosphere created by communal propaganda has pushed them to the wall and ‘we should move on’ is the thinking of a section of Muslim community. The unevenness, the contrasting situations of ‘two sides’ of the dispute is very obvious, one side which is dominant got more than it could dream of and the other side feels betrayed once again..

While RSS combine is joyous that a path has been paved for the national sentiment of Bhavya (grand) Ram Temple, and has asked Muslims to contribute in the ‘national’ agenda. One knows that we are dealing with the contrasting notions of nationalism. The Nationalism RSS is talking is the anti thesis of secular democratic nation, the aspiration of freedom movement, the nation enshrined in the Indian Constitution. What else can one expect from this political outfit, RSS, which aims to transform our democratic polity into a Hindu nation, with all past political-social ideologies presented in newer language? RSS combine is already feeling that their agenda has gone one step up, as the illegal act of installation in 1949 and the criminal act of Babri demolition has been legitimized and has also ‘quietly’ become part of social common sense.

The reaction of Congress has been very pathetic. One knows that so far in the communal violence which has stalked the streets it has kept quiet, and many a times a section of its Chief Ministers and other top leaders have presided over the carnage. When communalists have been on their ’job’ of massacring and maiming the innocent populace, the Congress has been looking the other way around. Congress reaction has been no different in the aftermath of this judgment. Congress is happy that ‘peace’ is prevailing; it is immaterial for them that this is not the peace of harmony but the peace based on injustice. In their electoral calculations to speak as per the Constitutional values and adherence to law has been dispensed with long ago. Sticking to principles does not suit Congress opportunistic communalism. There are still some voices of protest and introspection which are deeply disturbed by this judgment. This section does feel that the judgment is a big jolt to the values of pluralism, democratic law and all that the idea for which India stands.

The bureaucracy and the other arms of state apparatus are satisfied as what matters for them is the apparent calm. The preservation of the law of the land is not their deeper concern. As such a large part of this machine called Indian state has been heavily coated with the paint of divisive ideology and it has imbibed the propaganda of the Hindutva, masquerading itself as the representative of all Hindus. In the steel frame of Indian state a section swears by Hindu nation openly and still larger section is the quiet accomplice in the process of erosion of democratic norms due to multiple factors. These factors are the ceaseless communal propaganda, adverse effects of globalization and the accompanying cultural changes. So the question is, in this situation who is the guardian of Indian Constitution? If the political leadership is happy with the apparent clam and unconcerned about justice, the future of values of Indian Constitution and principles of justice seem to be threatened as never before.

The judgment and the reaction to it is a matter of serious and severe concern for all those who want to adhere to Indian Constitution and abhor the concept of Hindu nation. It is the communal common sense which is dominating the day. The legitimacy being conferred on bypassing of legal foundations of India is a matter of much more serious concern then the previous assaults on the Indian Republic, the murder of the Father of the Nation Mahatma Gandhi, the anti Sikh pogrom, the Babri demolition, the burning of Pastor Graham Stains, the Gujarat pogrom, and the Kandhamal violence. One sees barring in the anti Sikh program, the common link in all these attacks on the idea of secular democratic India, is the ideology of Hindu nation, the political agenda of RSS. In this phenomenon, assault on Indian Constitution by RSS combine, the Congress plays an opportunist role of an accomplice, letting the things take place. In that sense it plays a supporting role in the violation of all whatever the founding fathers of Indian nation stood for. One is reminded of an analogy from the world of cricket. In this analogy Indian Constitutional values are batsmen, RSS-Hindutva politics is the bowler, Congress the fielder, communalized social common sense is the Umpire raising his finger at every appeal by the bowler and the section of state apparatus is the one deliberately overlooking the mischief of those preparing the pitch suitable for this bowler.

It is also reminiscent of the Nazi Germany where the demonization of Jews, Communist, Trade unionists, the erosion of popular culture and its impact on all the wings of state got seeped by the fascist values, values of suppression of minorities and other weaker sections of society. One knows the painful fact that every episode of violence takes the communal politics one notch up. The disturbing point is not just that the judgment has by passed the law of the land, but also that this has got such a welcome reception from all those powers which matter.

The progressive forces and secular movement has a lot of thinking to do. If secularism is being attacked by RSS combine, if secularism is not being honestly protected by the party in power, Indian National Congress, then what is to be done to protect it? How will idea of India, Indian Constitution be saved and by whom? The progressive liberal and democratic forces have to wake up that. It is a ‘do or die’ situation for Indian democracy. The prevalent social common sense, the erosion of democratic norms, the bypassing of Indian law by the Courts, is a matter of serious concern.

Ram Puniyani’s statement that the verdict given by Lucknow bench of Allahabad High Court is culmination of the process of demolition of Babri Masjid is clearly a contempt of Court. Also, when he says the judgment is based on every other consideration than the legal one, he is only saying that upholding the legitimacy of the Babri Masjid alone is legal and all other judgements are illegal. This can only be the opinion of a writer soaked in hatred of the Hindu position. Moreover, when the writer says that the judgement has no rooting in the values of Indian Constitution, no guidance from the directive principles of the Constitution and no grounding in the law of the land, he seems to be denying the right of a Court to evolve judgements to include evolving realities. A case as the Ram Mandir issue has probably never come up before in Indian jurisprudence. The Court did not have to bind itself to old solutions for new problems.
Last but not least when Ram Puniyani says there is a spectrum of opinion amongst Muslim community that now there is a feeling that even the law cannot protect their just rights, he is forgetting that Indian law has been tweaked unnaturally over the years to protect even unjust rights of the Muslims. What can they possibly complain as far as Indian law goes, except that it is not Shariat?

http://www.ndchronicle.com/news/Ayodhya_Verdict_2010__Whither_Indian_Constitution_1288595327/

Forum discussion on Ayodhya

http://forums.bharat-rakshak.com/viewtopic.php?f=1&t=5697&start=160

Ayodhya Verdict: Commentaries III

How Should the Muslims React?
Javed Anand articulates the Muslim despair in the Indian Express:
It is a maxim of mature democracies that where there is no justice, there is no peace. Is there justice in India? It’s up to you, dear reader, to ask yourself that question. Have the victims of communal mass killings — Nellie, Assam (1983), Delhi (1984), Malliana, Meerut (1987), Bhagalpur (1989), Mumbai (1992-93), Gujarat (2002), Kandhamal, Orissa (2008) — got justice? Have the masterminds, the main perpetrators of mass crimes or the policemen guilty of partisan conduct been punished? What prospects of a verdict on the crime committed in Ayodhya on December 6, 1992, during the life-time of many of the main accused?

In the last week or so the media has discovered a magic word: reconciliation. Nelson Mandela has shown the world that in certain circumstances there could be an alternate route to peace — Truth and Reconciliation. But in the land of the Mahatma there is no Mandela in sight and the demand of the hour is reconciliation minus justice, minus truth.

The Constitution of India does guarantee the security of life and property to all citizens. But the institutions of secular India do not take that constitutional obligation too seriously. “Apni jaan kis ko pyari nahin hoti? (Who does not value his life?),” says my friend Asif Khan. So it seems that India’s Muslims are reconciled to a “reconciliation” out of fear for their life and limb. Triumph of majoritarianism?
...In the best interests of the country and the community itself, Muslims must gift away even the one-third of the plot that for the moment is legally theirs. The disputed plot in Ayodhya, which millions of Hindus have come to believe as the birthplace of Ram Lalla, is absolutely the last place where the battle for the Idea of India — secular or majoritarian — must be fought.
The legal opinion:
Rajiv Dhavan in Mail Today:
The Muslims correctly argued that the entire theory of destruction of a Hindu temple by Babur is traceable to the Imperial Gazetteers which are not based on any historical source but on local belief. It is tolerably arguable that the three judges, faced with the gigantic task of presiding over this mass of materials and documents, lost the wood for the trees. By contrast when the Privy Council dealt with the loss of the Shahid Ganj Mosque to Maharana Ranjit Singh, and this was accepted in a judgment of 1855, it wrote a six page unanimous judgment saying that it was too late to open any controversy. The site now belonged to the Sikhs and the 19th Century judgment was binding (in lawyer’s language res judicata). The easiest thing in the world for the three judges would have been to follow a similar course for the Babri Masjid site, grant legal title to the Muslims, accept the 1881 judgment as res judicata and declare that the Muslims had not lost the site between 1949 and 1961 by which the time limitation had past; and the Hindus could not claim adverse possession. Curiously none of the judges accepted this simple argument which would have disposed off the case.
It cannot be overlooked that this was a title suit. Most of the other issues were not legal issues in a strict sense. Justices Khan and Agarwal treated the case as a partition suit dividing the property which nobody had asked for...
...Maybe on appeal, the Supreme Court will be able to clear up this mess and secure ‘peace and honour’ on a more just and secular basis. With this controversy over, Parliament’s law of 1991 that all other sites will observe the status quo which prevailed on August 15, 1947 should be respected. Bad theology, doubtful law and false ideology do not portend well for the future.
The same case law had earlier been cited, before the verdict, by Justice (retd) Rajinder Sachar:
3. The Privy Council while observing “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and in violability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely”, went on to hold: “The Property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Limitation Act.“ On the same parity of reasoning even if temple existed prior to the building of Masjid 400 years ago, suit by VHP etc has to fail”.
In response to our queries on Justice Sachar and Rajeev Dhavan's criticism, only the following short note received so far from law professor Dr P. Chakravarti offers a possibility that the HC judgment could be upheld by the SC:
1. Waqf Board could only file a Title Suit (Islam is a modern religion, unlike Hinduism, or in this case, more appropriately the Ram-bhaktas who claim that Ram was born there much, much before the advent of Islam). Their claim dates back to a specific date when the mosque was built
2. If it can be proved that the mosque was built as a result of "conquest through invasion", as per current international law, it will not be a valid ground to hold the title to property. On the other hand, the 1949 incident, shameful though it may be, is "trespass" on what can arguably be described as property held illegally
3. As against 2 above, the Hindu claim is based on faith and therefore an entirely different legal reasoning has to be employed for determining the case when it comes to it, as it involves not individuals but the faith-system of an entire community according to which this is the land on which Ram was born.
4. It is established in Indian law, as Rajeev Dhavan's article also affirms, in addition to other links you have blogged, that deities can be juristic persons. And it is being argued that Ram was born (they don't have to specify when) much before the mosque was built. Even the land itself could be treated as a deity.
5. Even the Waqf is not in clear adverse possession of the disputed land for 20 years or more, unlike the Privy Council case, without any opposition (the Hindus have been opposing the Mosque, and praying at the same disputed site, for which there is record even in Imperial Gazetteers, as the Dhavan article above testifies. That is enough.).
6. ASI report can be relied upon by the court -- it does not have to independently check its veracity, and the burden of proof that it was cooked up would be for other litigants, and the issue is addressed in the judgments -- as proof that a temple existed before the mosque was built.
7. A detailed perusal, for which unfortunately I don't have time right now, would show what reasoning was adopted in the three judgments.
8. The 1991 law that all other sites will observe the status quo of August 15, 1947 -- which only had one exception, Ayodhya -- would ensure that the above is not treated as a precedent, which is why it was a law with foresight which, if applicable to Ayodhya, would have saved us all the bother of all this bloodbath.
The question posed in my first post -- and more specifically on Twitter -- though remains: Even if we take it that the above reasoning (or a variant thereof) holds in the SC, what if the mosque had not been demolished? Would the court have ordered demolition? A part demolition?
Interestingly, arguing from the other side, S. Gurumurthy, in his concluding article on the judgments in the New Indian Express, actually offers reasons why they are unsound in law:
So the settled legal position is this: even if parties, like the Ayodhya parties, who have filed suit asserting exclusive rights against one another, ask for partition, the court cannot grant it; and in no event the court can do it without the parties asking for it. None of these judicial rulings seem to have been noticed by the two judges. Had one of the parties asked for partition, the other party would have brought the case laws to the court’s notice. That is why law requires that the court should decide no issue that is not put to the parties. An order contrary to this principle is, in law, without jurisdiction. Civil law pundits would cite the old maxim of Coram Non Judici to say that the courts — read Justice Khan and Justice Agarwal — have no jurisdiction to do what they have done.
Now that they have passed the judgment, the judges will have to write a decree in accordance with the judgment. Assume that the judges can write a decree in the Hindus’ suit giving them less than their claim of 1/3 share. The suits of Muslims and Akhara having been dismissed, how could a decree be written in their favour? If no decree could be passed in their favour in their suits, they cannot get the 1/3 share at all. And no decree could be passed in the suits of the Hindus in favour of Muslims and Akhara! Therefore, the 1/3 gift by the two judges to them each will be only on paper. So a new battle will start only at the point if the two judges attempt to write the decree for two-thirds of the disputed land in favour of the Muslims and the Akhara whose suits stand dismissed.
In the same newspaper, the other luminary close to the Sangh parivar, the redoubtable Subramanian Swamy weighs in:
The fundamental question before us is: Can a temple and a masjid be considered on par as far as sacredness is concerned? Relying on two important court judgments that hold the field today, the answer is ‘no’. A masjid is not an essential part of Islam, according to a majority judgment of a Constitution Bench of the Supreme Court.
In the famous Ismail Farooqui vs Union of India case (reported in (1994) 6 SCC 376), the Supreme Court had observed: ‘It has been contended that a mosque enjoys a particular position in Muslim law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah…and any person professing Islamic faith can offer prayer in such a mosque, and even if the structure is demolished, the place remains the same where namaz can be offered’. (para 80).
The Constitution Bench rebutted this contention. The Bench stated: ‘The correct position may be summarised thus. Under Mohammed law applicable in India, title to a mosque can be lost by adverse possession…A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India’. (para 82).
Thus what was wrong in the demolition of the Babri Masjid on December 6, 1992 was that it was unauthorised by law and hence a criminal offence. Otherwise any government depriving the Muslims of the Babri Masjid is within law, if the government decides to do so in the interest of public order, public health and morality (Article 25 of the Constitution). This is the position in Islamic law as well since in Saudi Arabia the authorities demolish mosque to lay roads. Even the mosque where Islam’s Prophet Mohammed used to pray was demolished for a road to pass through!
And he, ominously, concludes on this note:
Even if a temple is in ruins as the ASI had found, or destroyed as Ram temple was, any Hindu can sue on behalf of Lord Rama in court for recovery! No such ruling exists for a mosque. That is, the Ram temple on Ramjanmabhoomi has a superior claim to the site than any mosque. This the fundamental truth in the Ayodhya dispute. This truth will apply to Kashi Vishvanath and Brindavan temple sites as well.
Constitutional expert and senior Supreme Court advocate P.P. Rao, on the other hand, is clear and unambiguous:
Not one of the judgments can stand strict legal scrutiny. They have raised more questions than they have answered. Whose property did they divide and amongst whom and who wanted such a division? How could they award one-third share each after dismissing the suits of Nirmohi Akhara and Sunni Waqf Board? Who dedicated the land to Ram Lalla and when? In legal terms, the judgments are incorrect, but innovative. They are liable to be reversed on appeal. The affected parties have decided to move the Supreme Court, keeping the door open for settlement. We should thank God that they did not take to the streets to settle scores. Reposing faith in the judiciary is the wisest thing to do in a country governed by the rule of law. The parties apart, members of the two communities at large deserve praise for their restrained response to the verdict.
The role of the Congress since 1949
Rasheed Kidwai, in the Telegraph, provides an overview:
Decades later, in 1986, when Rajiv Gandhi was Prime Minister and the Congress was in power in Uttar Pradesh, the fast-paced events leading to the opening of the lock surprised even the BJP, which highlighted the Congress’s role in a White Paper published after the Babri Masjid was demolished.
Under the heading “The case for opening the lock — a contrast”, it asked sarcastically: “How is it this case moved at such a speed? How did the government acquiesce in this case? How did the Faizabad court allow the appeal (to open the lock) in two days when the Hindus had been pleading for 37 years? How did the Doordarshan cameras click the opening of the lock within an hour of the court order? All these questions have one answer, the government is not against such things and they can, and do, happen.”
Through 1986-1989, Rajiv Gandhi, his home minister Buta Singh, the then Uttar Pradesh chief ministers Veer Bahadur Singh and N.D. Tiwari kept trying to occupy the Ayodhya centre stage, coming up with plans. In 1989, the government even allowed the shilanyas (foundation ceremony) at the site. Somehow, each of these measures boomeranged.

Gurumurthy's article

Verdict -- a prologue

By S. Gurumurthy
expressbuzz.com
First Published: 02 Oct 2010 11:52:00 PM IST
Last Updated: 02 Oct 2010 01:07:54 AM IST


"My judgment is short, very short", writes a relieved and happy
Justice S U Khan who delivered the Ayodhya judgment along with
Justice S Agarwal and Justice D V Sharma. But that "short, very
short" judgment itself runs to 285 pages. The order of Justice S
Agarwal, with annexes, runs to over, believe it, 5,200 pages; that of
Justice D V Sharma tops over 1,700 pages including annexes. It means
this: to get a basic idea of the Ayodhya judgment one has to wade
through some 8,000 pages. This may well enter the Guinness book as
the longest judgment ever written! But what the visual media and
participants in debates had in their hands when they enlightened the
nation for almost four hours on the judgment was a one-page summary
of Justice Khan's order; a two-page summary of Justice Sharma's, and
a 12-page summary of Justice Agarwal's. Yet, in a couple of hours
they settled the national opinion on the long judgment of 8,000
pages!


The "quality" of their discourse was self-evident, even self-serving.
The visual media continuously ran headlines like "no temple was
demolished to build mosque", when the majority finding on the issue,
by Justices Agarwal (p5083) and Sharma (p28-104 in Waqf Board Suit)
was that the mosque "had been constructed on the site of Hindu temple
after demolishing the same"; the judges had found that the Hindus had
for long worshipped the place where the mosque stood as Ram Janma
Bhoomi (Sharma p172 Hindu Suit and Agarwal p5085). Most media
projected Justice Sharma's views as minority view. Actually it is
Justice Khan's that turns out to be that way, except on the division
of the disputed area where Justice Agarwal partly agrees with him.
But on the issue of the broken temple predating the mosque and on the
belief of the Hindus about the birthplace of Ram, Justice Agarwal and
Justice Sharma constitute a majority. Even Justice Khan does not deny
the existence of the broken temple but says the mosque was built on
temple ruins.


Again, the media did not highlight that the two judges have dismissed
the suits of the Sunni Waqf Board and the Nirmohi Akhara (believed to
be the proxy for the Congress party), and also that the two judges
have decreed only the two suits filed by the Hindu parties. The
consequence of this is immense, as will be unveiled in the next part
of this article.


The opinion about the Ayodhya judgment has been sealed by the
television discourse very much like it happens in the case of budget
papers. The discourse was less about the judgment and more about
politics like whether the court was right on deciding religious
issues such as whether it was Ram Janmasthan or there was a temple
under the mosque. The media also wailed about why the nation should
be wasting time on the temple issue when developmental issues are
crying for attention. Each of these comments is valid in itself; but
they are no substitute for a rigorous analysis of the verdict. Almost
all commentators recalled the 1992 demolition, but did not say that
Justice Agarwal (page 586) had concluded that that did not affect the
rights of the Muslims in their suit. Thus the millions who witnessed
TV channels did not get the right idea about the judgment.


And most of those who commented on the judgment were elated by how
the court had showed great "statesmanship" in giving a third of the
disputed place to Muslims. They also gloated over how that gesture
could promote secularism in India. But they did not stop a minute to
ask (unlike legal experts Rajeev Dhawan, regarded as a secular icon,
and P P Rao did) how, after saying that the Muslims and Nirmohi
Akhara had no right to sue, the two judges could give any share of
the property to them.


Political parties need votes; so they would speak only with that in
view. But should these experts and intellectuals not call a spade a
spade? Also point out what the court has actually found as facts?
They didn't. Therefore, the start of a national discourse on such a
critical legal issue, with huge political and communal implications,
could not have been shallower. For the last 20 years all political
parties and secular intellectuals had told those who were for the Ram
temple and those against to wait for the judicial verdict for
resolving the dispute.


There were four suits in all before the judges -- two by Hindu
parties; one by Muslims (Sunni Waqf Board), and the fourth, widely
believed to be the proxy of the Congress (Nirmohi Akhara). Some 121
issues were framed in the suits -- like whether the mosque was
constructed on a temple demolished or in ruins; whether the Hindus
had a long held belief that the disputed place was the birthplace of
Ram; whether the four suits were within the period of limitation set
by law; whether and how long the Hindus were worshipping at the
disputed place; whether the Muslims were also worshipping in that
place and from when to when; who owns the disputed land, the Waqf,
Nirmohi Akhara, or the deity Ram. While the Hindus' suit had claimed
the Janmasthan as exclusively that of the deity Ram, the Sunni Waqf
Board suit had claimed it as exclusively its own, the Nirmohi Akhara
suit had claimed it again as its exclusive property. In law, this
mutually exclusive claim of the three contenders meant that, if the
suit of any one was allowed that would destroy the suit of the other
two. This was how the cases, three of which were filed in 1989, the
first one by the Hindus having been filed in 1950, began -- with the
parties letting in oral and documentary evidence first and then
arguing the case later.


The principal issue in the case was: whether the disputed place
belonged to the deity Ram, or the mosque or the Nirmohi Akhara. The
critical fact to be found was whether a Hindu temple predating the
disputed mosque existed. To unravel that the Allahabad High Court had
directed the Archeological Survey of India to find out "whether there
was any temple/structure which was demolished and mosque constructed
on the disputed site" first by Ground Penetrating Radar (GRP) survey
and, thereafter, by excavation. The ASI conducted the GRP survey and
submitted a report in February 2003; after that it excavated the
disputed area and submitted a further report of 574 pages. What was
ASI's answer to the all-important question of temple under the
mosque? How have the three judges have decided the cases? What are
the legal, political implications of the decision? A clinical
dissection will reveal whether the verdict solves the dispute, or
escalates it. Await the next part.

This is the second of a three-part series on the Ayodhya judgment


The best part of the Ayodhya verdict is the judgment of Justice
Sudhir Agarwal. Though a huge affair running to over 5,200 pages, his
is one of the most organised and best-written judgments. One has only
to look at the index he has provided (at p5136-5218) in Volume 21 of
the judgment to get to what one wants -- whether it is to know what
the decision was on any of the issues, or to search for any
documentary evidence or oral testimony used or any case law
considered. Any reasonably skilled reader of legal documents may use
the index as the key to unravel the judgment in a couple of days,
which might otherwise take a fortnight.


That explains how articles like this appear in such a short time. It
must have taken Justice Agarwal long periods of stress and labour to
produce such a wonderful judicial document. More, to maintain
confidentiality he must have done lots of the work himself. Also for
writing the main judgment, he has analysed minutely all the evidence,
documentary, oral and technical, himself; so that the other judgments
just supplement his where there is agreement. But for his huge
effort, it would be extremely difficult to unravel the Ayodhya
verdict. If Justice Khan could write his "very short" judgment it is
thanks to Justice Agarwal writing a very long one.


The Ayodhya verdict is not just a legal affair. It discusses,
frankly, but with sensitivity, the Hindu-Muslim interface based on
historic facts. It also touches upon history, archeology, sociology,
religion and related disciplines. A reading of the verdict will
reveal its reach and depth. So the nation must be grateful to the
judges, particularly Justice Agarwal, for a stupendous work.


The criticality of Justice Agarwal's judgment, in the overall Ayodhya
verdict, is manifest in that, virtually what he has said has turned
out to be the final verdict. This is because, with Justice Sharma and
Justice Khan taking almost divergent positions, to the extent Justice
Agarwal agreed with either of them on any issue his views became the
final view on that issue. Just see the effect of his view on the most
sensitive issue in the Ayodhya case, namely, was a preexisting Hindu
temple destroyed to make way for the mosque?


Even though he agrees that a massive broken Hindu structure was found
under the mosque, Justice Khan does not agree that any Hindu
structure was demolished to build the disputed mosque. But Justice
Sharma is firm that a Hindu temple was indeed demolished to build the
mosque. Justice Agarwal analyses the evidence over some 900 pages
(from 3513 to 4415) and after holding that a Hindu temple predated
the mosque at the spot, he says, on evidence, that "it can safely be
said that the erstwhile structure was a Hindu temple and it was
demolished, whereafter the disputed structure was raised" (p4415).
This makes it the Court's view. But, having held that a Hindu temple
existed before the mosque was constructed, Justice Agarwal was not
keen to pursue the demolition issue. But he does. Why? Read on.


He was compelled to do so by the lies of the experts relied upon by
the Muslim parties. Prefacing that, for the purposes of the case, it
was "sufficient" to stop at finding "that the mosque had been raised"
on a pre-existing "massive temple", Justice Agarwal writes [at
p4333], "it would not have been necessary to tell positively that
there existed a massive temple structure, which was demolished and
thereafter the disputed structure was raised".


He then explains why he did that thus: the statement of so many
experts appearing on behalf of the plaintiffs (Sunni Waqf Board)
asserting that "temples in past were never demolished by then Muslim
rulers or invaders from Persia etc, is so blatant a lie" that he was
"reluctant to ignore it without referring to some well-known
historical" account of the demolition of Hindu temples, some "written
by Muslim writers themselves."


Only after that, considering (from p4333 to p4415) the massive
evidence about destroying temples, including at Ayodhya, Justice
Agarwal concluded that a Hindu temple was indeed destroyed to build
the mosque. Yet the visual media kept insisting throughout Sept 30
that the Court had indeed held that "no temple was destroyed to build
the mosque". So, till now, the people do not know the truth that
Justice Agarwal has found; they only believe as true the lie that the
media has telecast.


The critical evidence that became one of the most contentious issues
between the Hindu parties and the Muslims parties in the court was
the Archeological Survey of India (ASI) Report which established that
a massive structure "indicative of the remains which are distinctive
features" of "the temples of North India" existed under the mosque.


The first point to note was that the ASI was brought in by the court
on its own in 2002, not by any party or the government. The ASI did
the GPR survey and excavation under the orders of the court and under
supervision by two judicial officers appointed by the court, in the
presence of the counsel for the parties.


But the most disgusting part of this critical exercise, the
importance of which to the case is brilliantly captured by Justice
Agarwal (p3869-4333), was the way the Muslim parties attacked the ASI
work in court, including on the ground that the BJP was ruling then,
and that the ASI team did not include sufficient number of Muslims in
the excavation work. This led to the court chiding them for suffixing
experts with "Muslim", "Hindu" or "Christian" (Justice Agarwal p230).
But now, after the verdict, the secularists attack the court for
relying on the ASI report in almost the same language the Muslim
parties used to attack the ASI prior to the verdict!


But the otherwise well-conceived and best-written judgment badly
slipped, in law and in judicial wisdom, on the division of the
disputed site.


That, in the final part tomorrow.

The otherwise legally proper and judiciously sound Ayodhya verdict has suffered serious legal haemorrhage by the decision of Justice Khan and Justice Agarwal to divide the disputed land into three parts and give one-third each to Hindus, Muslims and the Nirmohi Akhara. This article explains that fatal infirmity. An issue where law is mixed with facts, it calls for some strenuous reading to know what the deadly defect in the judgment is. To recall, the short facts are: in their two suits, the Hindus claim the disputed site as exclusively their own; in their suit, the Muslims claim it exclusively as their own; in its suit, the Nirmohi Akhara too claims it as exclusively its own. None of them had asked for nor would accept to share the disputed land with any other or the others.


To simplify the law for the uninitiated, the law says that a person filing a suit has to plead his case properly and clearly, and also ask for reliefs in clear terms. The court will look only what suitor says in his plaint and his opponents in response, nothing else, to know what is the case. It will then frame the contentious issues and decide them on the basis of the pleadings of the parties and evidence tendered by them. The principal issues decided on that basis by the Allahabad High Court, unanimously or by 2:1 majority, in the present case are: one, the rights of the Hindus over the Ram Janmabhoomi never ceased at any point in time; two, the Muslims were never in possession of the disputed premises at any point in time; three, the Muslims failed to prove their possession of any part of the disputed land; four, the last time the Muslims did namaz on the disputed property was on 16.12.1949; five, the Hindus never admitted possession by Muslims at any time, even in the suit of 1885; six, Muslims never acquired title even by adverse possession; seven, the Akhara never had possession nor acquired title by adverse possession; eight, the suits of Muslims and the Akhara, having been filed beyond the limitation period, are dismissed. On this basis, the court dismissed the suits of Muslims and Akhara, thus denying any relief. While, Justice Sharma allowed the suits of Hindus in full, Justice Agarwal and Justice Khan allowed the Hindus’ suit partly.

On why they ruled partitioning of the disputed land, Justice Agarwal and Justice Khan have said that under a provision (Order 7 Rule 7) in the Civil Procedure Code they had the authority to give less relief than what the Hindus had prayed for in their suits. So by assuming that they had the power to reduce the share of the Hindus, the two judges seem to have thought that they had also the power to give the balance to Muslims (1/3) and the Akhara (1/3); in the process what the two judges have done is to give Muslims and Akhara rights, which Justice Sharma and Justice Agarwal have separately declared they do not have. Also none of the three parties had asked for what the court has done. The first principle is that, any relief beyond what the suits set out in pleadings and prayers can only be given at the instance of one of the parties; not by the court on its own motion like it has done in this case. If parties themselves had not asked for anything outside the pleadings, the court cannot go beyond their pleadings at all.

The law on this point has never been in doubt. The Madras High Court has ruled in 1998 (Arunachalm Pillai Vs Ramu Mudaliar and others) that where each party claims exclusive title to the property and none of them accept the right of the other (exactly as in the Ayodhya case) the question of partitioning the property between them does not arise at all (under the very provision of law cited by the two judges in Ayodhya case). The courts in Patna, Kolkata, and the Madras High Court itself have ruled this principle earlier. As far back as 1991 the Supreme Court (Om Prakash V Ram Kumar (1991) 1 SCC 441) had ruled that even if a party asks for reliefs outside his pleadings the court can never allow them; by doing so it will prejudice rights of the other party.

So the settled legal position is this: even if parties, like the Ayodhya parties, who have filed suit asserting exclusive rights against one another, ask for partition, the court cannot grant it; and in no event the court can do it without the parties asking for it. None of these judicial rulings seem to have been noticed by the two judges. Had one of the parties asked for partition, the other party would have brought the case laws to the court’s notice. That is why law requires that the court should decide no issue that is not put to the parties. An order contrary to this principle is, in law, without jurisdiction. Civil law pundits would cite the old maxim of Coram Non Judici to say that the courts — read Justice Khan and Justice Agarwal — have no jurisdiction to do what they have done.

Now that they have passed the judgment, the judges will have to write a decree in accordance with the judgment. Assume that the judges can write a decree in the Hindus’ suit giving them less than their claim of 1/3 share. The suits of Muslims and Akhara having been dismissed, how could a decree be written in their favour? If no decree could be passed in their favour in their suits, they cannot get the 1/3 share at all. And no decree could be passed in the suits of the Hindus in favour of Muslims and Akhara! Therefore, the 1/3 gift by the two judges to them each will be only on paper. So a new battle will start only at the point if the two judges attempt to write the decree for two-thirds of the disputed land in favour of the Muslims and the Akhara whose suits stand dismissed.

The legal unsoundness aside, the decision to divide the disputed land and award 1/3 each to the Muslims and the Akhara, stands out contrary to the spirit of the otherwise judicious judgment. It has put roadblock on the temple construction; how could a temple to which a million people come on Ram Navami day be accommodated in one acre of land (a third of the disputed area) with a mosque beside. It will be an invitation to a law and order disaster.

Many idealists welcome this action of the two judges as an ideal solution. But, in sensitive issues like relations between Hindus and Muslims (many among whom still share bitter memories of past) the ideal is not practical; only what is practical is ideal. This sense of idealism without practical sense is that what seems to have led the two judges into the judicially erroneous decision to divide the disputed land.

QED: The historic Ayodhya judgment has, thanks to this fatal defect, now less potential to resolve the dispute and more potential to escalate it.

(This is the final of a three-part series on the Ayodhya judgment)

Forgetting facts

T. K. RAJALAKSHMI
The judgment apparently has not taken into account the evidence presented by leading historians on the disputed site.
THE “compromise” judgment of the Allahabad High Court, for all its merits and attempts to achieve communal amity, is perceived as a setback for the basic tenets of historical inquiry and precision. Social scientists of all hues have reacted with dismay to the dominance of faith and belief over scientific fact and historicity.
While a section of the political class and the intelligentsia genuinely believes that it is time to move on and let the higher judiciary take up the matter if need be, historians and students of history wonder what happened to all the evidence painstakingly collected in the national interest by leading historians and archaeologists of the country. One of them, the archaeologist Suraj Bhan, who is no more, had noted the strain the dispute had created, before the demolition, and attempted, purely voluntarily, to set the record straight, not only to maintain communal amity but to protect academic integrity.
In 1991, two significant reports, one in March and the other in May, were written with the sole objective of presenting to the nation information relating to the Ram Janmabhoomi-Babri Masjid issue. The May report, titled “Ramjanambhoomi-Babri Masjid issue: A preliminary study of the archaeological evidence”, was by Suraj Bhan, who was Professor of Archaeology in the Department of Ancient Indian History, Culture and Archaeology at Kurukshetra University in Haryana. This was an interim report, which was submitted to the Indian Council of Historical Research (ICHR). The Home Ministry had assigned it the task of authenticating the documents submitted by the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC).
Suraj Bhan made these observations on the basis of the excavations done by Professor B.B. Lal during 1975-80, his own study of the archaeological remains at Ayodhya, and evidence collected in 1969-70:
“There is nothing wrong in looking for a kernel of truth in the literary tradition of the Ramayana. But what is necessary for a scientific methodology is to build a reasonable hypothesis about the structured entity which must have been objectively in existence in the past. The metaphor of kernel would not encourage the scientist to critically examine either the evidence buried in the texts or the material evidence collected through excavations in order to identify the structure of relationship embodied in the evidence. Merely locating the names of personages and places in the time frame does not suffice for this purpose. It will only confirm the vague understanding of history we have unconsciously imbibed through what is called common sense.... What has limited the significance of B.B. Lal's attempt is the vague notion of history that is implicit in his approach.... On account of the limitations of Professor B.B. Lal's approach mentioned above, we cannot accept his view that archaeological evidence proved the historicity of Ram as a personage who lived at the site where the present day Ayodhya is located during the period of early NBP [northern black polished] ware (circa 700 B.C.) or that he was born at the place where Babri Masjid today stands.”
The second report, titled “Ramjanmabhumi Baburi Masjid - A Historians' Report to the Nation”, was authored by historians R.S. Sharma, M. Athar Ali, D.N. Jha and Suraj Bhan. R.S. Sharma and D.N. Jha were professors of History at the University of Delhi (Sharma was also the first Chairman of the ICHR) and Athar Ali was Professor of History at Aligarh Muslim University. That the dispute whether a Ram temple existed at the site of the Babri Masjid was being left entirely to the litigants and had not involved historians of any standing worried the four historians. They approached the government to consider the views of independent historians and also requested that archaeological and textual evidence in possession with government organisations such as the Archaeological Survey of India (ASI) be made available to them.
While the AIBMAC agreed to abide by the findings of an independent group of historians, the VHP did not accept it. The government maintained a tactical silence all along. Undeterred, the four historians embarked on the project on their own in the national interest as they felt that people had a right to know the historical facts.
The very first thing they noted was that the VHP had been unable to cite any ancient Sanskrit text in support of its claim that there was an ancient Hindu belief that a particular spot in Ayodhya was the Ram Janmasthan (birthplace of Ram). The report concluded, after looking at various pieces of textual and archaeological evidence, including Tulsidas' Ramcharitamanas, that no evidence existed in the texts of any veneration being attached to any spot in Ayodhya before the 16th century (and indeed before the 18th century) for being the birthplace of Ram and that there were no grounds for supposing that a Ram temple or any temple existed at the site where the Babri Masjid was built in 1528-29.
Their conclusion rested on an examination of the archaeological evidence as well as the contemporary inscriptions on the mosque. They concluded that the legend that the Babri Masjid occupied the site of Ram's birth did not arise until the 18th century and that a temple was destroyed to build the mosque was not asserted until the beginning of the 19th century. They held that the full-blown legend of the destruction of a temple that stood at the site of Ram's birth and at Sita ki Rasoi came as late as the 1850s. “Since then, what we get is merely the progressive reconstruction of ‘imagined history' based on faith,” noted the four historians in their report to the nation.
After examining the inconsistencies in the VHP claim based on the Ayodhya Mahatmya (the merits of visiting Ayodhya) given in the Skanda Purana, the core of which was not compiled earlier than the 16th century, the historians noted: “In spite of these various inconsistencies, even if we accept the location of the birthplace of Rama as given in the Ayodhya Mahatmya, it does not tally with the site of the Babri Masjid... according to Hindu belief as given in the Ayodhya Mahatmya of the Skanda Purana, the birthplace of Rama cannot be located on the site where the Babri Masjid stands. It is argued by the experts of the VHP that the location of the Ram Janmabhumi is given on the basis of solar directions and cannot be determined through the use of the compass. But even if we take solar directions into account, the Janmabhumi of the Skanda Purana cannot be located on the site of the Babri Masjid. The various versions of Ayodhya Mahatmya seem to have been prepared towards the end of the 18th century or in the beginning of the 19th; even as late as that the birthplace was not considered to be important. It is significant that the Janmasthan is not mentioned even once in any itinerary of pilgrimage given in the Mahatmya.”
The historians also relied on the most primary source of recorded historical evidence, the Persian inscriptions on the mosque. Presenting a full translation of the inscriptions, the historians observed that the contemporaneity of the inscriptions was shown by their text and date, and their accuracy was established by the fact that Mir Baqi finds mention in Babur's memoirs as the governor of Awadh or Ayodhya at exactly the same time.
The report noted: “These fairly long inscriptions show that the construction of the Babri Masjid was completed in 1528-29. But nowhere is any hint given in them that the edifice was built after destroying a temple or upon the site of a temple. If one accepts for the purpose of argument that there was a temple at the site, and the builder of the mosque (Mir Baqi) destroyed it to build a mosque, one has to answer why at all should all reference to this fact be omitted in the foundation inscriptions. Surely, had Mir Baqi destroyed a temple, he would have deemed it a meritorious deed; and what would have been more natural than that he should get this act recorded along with that of the building of the mosque to add to his religious reputation. That he did not get any such act recorded surely means that he had in fact not destroyed any temple, and so found no reason to record something that had not happened.”
Expressing surprise at Tulsidas' Ramcharitamanas also not mentioning the desecration of a temple at the site of the mosque, the historians wrote: “Within fifty years or so of the construction of the Babri Masjid, Tulsidas composed in 1575-76 his celebrated Ramcharitamanas, the most fervent exposition of the Ramayana story in Avadhi. Is it possible to believe that Tulsidas would not have given vent to heart-rending grief had the very birth site of his Lord been ravaged, its temple razed to the ground and a mosque erected at that place? His silence can only mean that he knew of no such scandal; and given his attachment to Rama and Ayodhya, this must mean that no such event had in fact taken place. Tulsidas, on the contrary, suggests that it was not Ayodhya but Prayag that was to him the principal place of pilgrimage ( tirath raj); and so no tradition of the veneration of any spot as that of Rama's birth at Ayodhya had yet taken shape.”
The historians added that even Abul Fazl, in his A'in-i-Akbari, completed in 1598, wrote about Ayodhya being the “residence of Ramachandra, who in the Treta age combined in his own person both the spiritual supremacy and the kingly office” but did not confine Ram's place of birth to the existing town of Ayodhya, let alone the site occupied by the Babri Masjid. “Had such tradition existed, Abul Fazl would surely have mentioned it, because he does mention the tradition that two Jewish prophets lie buried at Ayodhya,” they noted in their report.
As for the black pillar bases that were used to vouch for the existence of a temple, the historians noted, after examining many records, including those of art historians, that there was nothing to show that “the pillar bases were remains of a local temple of which they formed an integral part in the beginning and the mosque was erected over them”.
In his own report to the ICHR, Suraj Bhan wrote of the pillars: “This is a wild hypothesis not backed by any material evidence and is actually negated by the factual position easily verifiable from the existing structure of the Babri Masjid. The stone pillars are, in fact, embedded at the arched entrances in the massive walls of the mosque and stand at the floor level on the foundation walls constructed for the big building. Only those who have failed to understand the architectural plan of the building and wilfully ignore the indisputable factual position will insist on seeing these stone pillars as in situ. Since black stone pillars are relatively short and slender, they cannot be load bearing. In fact, their placement at the arched entrances and the colour contrast they offer as also the carvings on them suggest that they have been used only as decorative pieces and are not architecturally functional beyond this decorative purpose. Furthermore, the placement of the pillars fits in the plan of the mosque and not that of a Hindu temple.”
The September 30 judgment has evinced strong reactions from a cross-section of historians and archaeologists. On behalf of the Safdar Hashmi Memorial Trust, 62 academics, including Romila Thapar, Irfan Habib, D.N. Jha, K.M. Shrimali, K.N. Panikkar, Utsa Patnaik, Shireen Moosvi, Amiya Kumar Bagchi, Suvira Jaiswal and Arjun Dev, have demanded that the notebooks, artefacts and other material evidence relating to the ASI's excavation at the site be made available for scrutiny by scholars, historians and archaeologists.
First of all, the view that the Babri Masjid was built on the site of a Hindu temple – which has been maintained by two of the three judges who gave the verdict – does not take into account all the evidence turned up by the ASI's own excavations. The presence of animal bones throughout and the use of “surkhi” (made from powdered burnt bricks) and lime mortar (all characteristics of Muslim presence) rule out the possibility of a Hindu temple having been there beneath the mosque. The judgment, the academics said, had raised serious concerns about the way history, reason and secular values, which much of rational India shared, had been treated.

‘A dangerous precedent'

T. K. RAJALAKSHMI
Interview with Prakash Karat, general secretary, CPI(M).

Prakash Karat: “Judicial verdict has to be grounded in constitutional principles.”
THE Communist Party of India (Marxist) has been one of the most vocal critics of the demolition of the Babri Masjid. Like many other secular political parties, the CPI(M) has expressed surprise and dismay at the importance given by the Allahabad High Court to issues such as faith and belief in its verdict. In an interview given to Frontline, CPI(M) general secretary Prakash Karat opined that any judicial verdict had to be firmly grounded in secular, democratic and constitutional principles. Excerpts:
What are your impressions of the judgment? Do you think there is something disquieting about it?
Since the demolition of the Babri Masjid in 1992, the scope for a negotiated settlement has not existed. We have been maintaining that the problem can be resolved only through the judicial process and a judicial verdict. How we settle the Ayodhya dispute will be a test case for the democratic and secular basis of the Indian state. That is why we had rejected those claims from the Hindutva outfits that the building of a Ram temple is a matter of faith and cannot be decided by the courts. Now that the Lucknow Bench of the Allahabad High Court has given its judgment, we have to see if this judgment is going to settle the issue in a manner where justice has been done and the secular and democratic principles and methods of resolving such issues have been adhered to.
There is a general impression that the majority decision of the Lucknow Bench to divide up the 2.77 acres of land whereby two-thirds of the land goes to the Hindu petitioners and one-third to the Muslim side is a compromise solution and a step towards a settlement.
At the same time, a disturbing feature of the set of judgments is the primacy accorded to “faith and belief”; originally what was being heard by the Lucknow Bench were the title deed suits, which required going by the facts and the evidence.
A judgment on the dispute on where a mosque existed for four and a half centuries, and which was demolished in December 1992, is now being resolved on the basis of the faith and belief of a particular community. This is something that will create a dangerous precedent.
What kind of a precedent do you think this judgment can set, given the primacy it has accorded to issues of faith and belief?
It can open up many more such claims and disputes in the future citing the religious faith of some people. The Vishwa Hindu Parishad still demands the handing over of sites in Mathura and Kashi for religious purposes. The three-judge Bench has unnecessarily framed issues which go beyond the jurisdiction of title deed suits. The Supreme Court had rejected a reference made by the President of India, which was at the behest of the [P.V.] Narasimha Rao government in 1993, where one of the issues posed before the court was whether a temple existed or not at the site before the mosque was built. The Supreme Court correctly refused to entertain such a reference. The Supreme Court then had revived the title deed suit before the Lucknow Bench of the Allahabad High Court.
What impact do you think this judgment will have on the ongoing cases involving the demolition of the Babri Masjid?
Already the ongoing cases regarding the demolition of the Babri Masjid have been diluted. The charge sheets framed originally have been watered down. Still, the criminal offence of the demolition has to be decided by the law; the basis on which the judgment has been given by the Lucknow Bench does not augur well for the judicial proceedings on the demolition cases.
There is already jubilation in certain quarters, cynicism among others, and the ruling political class opines that moving forward is the best solution.
Given the verdict of the Lucknow Bench, the matter will go to the Supreme Court for a final decision. No party to the dispute or any section of people can demand any step to be taken until the Supreme Court gives the final judgment. The people by and large, irrespective of which community they belong to, want the matter settled through the rule of law. The demands made by the extremist fringe groups do not reflect the opinion of the general public.
What do you finally think will be the outcome of the judicial process?
I think the Supreme Court will have to undo the premise on which a verdict has been given citing religious faith as the criterion for settling the question of ownership and recorded history of the dispute.

‘We can offer Muslims land anywhere else'

PURNIMA S. TRIPATHI
Interview with Acharya Giriraj Kishore and Pravin Togadia.
IN the light of the verdict of the Lucknow Bench of the Allahabad High Court in the Ayodhya title suit, the Vishwa Hindu Parishad (VHP) has demanded that the Central government hand over to it the entire 67 acres of acquired area so that a Ram temple can be built. Acharya Giriraj Kishore and Pravin Togadia, senior international vice-president and international general secretary respectively of the organisation, spoke to Frontline on the verdict. Excerpts from the interview:
Now that the High Court has ruled that the place where the Ram Lalla idol is kept is the birthplace of Ram, do you feel vindicated?
Togadia: The Allahabad High Court verdict is an affirmation of the faith of crores of Hindus the world over. The fact that all three judges unanimously decided on the issue of the birthplace of Lord Ram being at the spot where the idol is being worshipped by Hindus for years is an acknowledgement of the belief of Hindus and we welcome it and accept the verdict. Our stand has been vindicated that this is the birthplace of Lord Ram. This is further corroborated by the fact that the Sunni Central Waqf Board's claim over the title deed has been dismissed unanimously by the court.
But the court has also ordered that one-third of the disputed land be handed over to the waqf board.
Togadia: The Sunni Central Waqf Board's title claim has been rejected by the court, and since the court has ruled that the place where the idol is kept at present is the birthplace of Lord Ram, what meaning does the waqf board claims have? We want to build a grand Ram temple at the spot and demand that the Central government hand over the entire 67 acres of land to us for this purpose. We appeal to all, including the Muslim community, to come forward and help in building a grand Ram temple at the spot, in keeping with the spirit of the court ruling. Besides, the waqf board has also claimed that if it is proved this is the birthplace of Lord Ram it will give up its claim over the land. It should follow what it has said all along.
Acharya Giriraj Kishore: I appeal to the Muslim community to forget the past and work for the construction of a Ram temple in Ayodhya. This is a rare opportunity for them to pave the way for everlasting peace and amity between the two communities and they should avail themselves of this opportunity. Once they do this and give up their claim over the Kashi and Mathura temples, there would be everlasting peace and communal harmony.
But the court has found their claim valid for one-third part of the land.
Togadia: See, their title suit claim has been dismissed by the court, so they should be magnanimous enough to give up their claim over this land now and join hands with us in building a temple. This will be in the larger interest of all. We have made it clear in our resolutions before that we will not allow any mosque in or around the disputed area. We can offer Muslims land anywhere else but Ayodhya, and if they agree to our proposal we will help in making a grand mosque for them. Ayodhya is one of the most sacred places for millions of Hindus and they should respect this.
What if the Supreme Court upholds the High Court decision?
Togadia: We will see then. As of today, our position is clear. Besides, Muslims should understand that they have lost the title case on the issue of law; their claim has been rejected as it was found to be time barred. We are confident the Supreme Court will see the merit in this.
It took the court 60 years to come to this conclusion. A lot of violence and bloodshed could have been avoided had the case been decided earlier.
Acharya Giriraj Kishore: This was a very sensitive case and the court had to take cognisance of many aspects – thousands of witnesses to be heard, thousands of pieces of evidence to be examined. We are satisfied that finally justice has prevailed. It is a historic event that has the potential to change forever the political landscape of India. Once Muslims understand and accept the spirit of this verdict, Hindu-Muslim relations will change forever. Let bygones be bygones, let there be no acrimony and let there be peace for all time to come.
How do you intend to take your temple construction plan forward?
Togadia: That is for the sadhus and the sants to decide. This time they will lead the temple construction programme. We have no plans for the immediate future.

In the name of faith

VENKITESH RAMAKRISHNAN
in Lucknow and Ayodhya

The verdict in the Ayodhya title suit faces criticism for banking more on faith and belief than on historical evidence.
RIGHT through the run-up to the announcement of the verdict by the Lucknow Bench of the Allahabad High Court in the six-decade-old title suit on the disputed land in Ayodhya on which the Babri Masjid once stood, there was little doubt that the judgment would be a historic one. It was widely expected to have a lasting impact on Indian society, especially in terms of its politics and judiciary. But when the actual pronouncement came on September 30 – through three separate judgments from Justices Dharam Veer Sharma, Sudhir Agarwal and Sibghat Ullah Khan, after a six-day delay resulting from an intervention by the Supreme Court – such expectations were belied, especially on account of the manifold dimensions of the verdict. While its social and political effects were indeed evident across the country, its most striking impact was on the structure of established judicial practice.
Debates in several forums pointed out that the tools of jurisprudence employed by the judges in formulating the verdict marked a significant departure from the usual structure of judicial practices. Central to this perception is the use of faith and belief as vital factors influencing the judgments, especially on a question relating to a title suit in a property dispute. These two amorphous categories clearly got precedence in the judgments over other material factors such as title deeds. This departure from accepted norms and procedures of judicial practice is expected to have wide-ranging social and political consequences.
In brief, the majority verdict from the three judgments is as follows: That the disputed land in Ayodhya be divided into three equal parts among the parties to the dispute, namely, Ram Lalla (Infant Ram), represented by his Sakha (or close friend) Triloki Nath Pandey; the Nirmohi Akhara, which has staked its claim to the property since 1885 and ran a place of worship on the premises; and the Sunni Central Waqf Board, which claimed to have had possession of the disputed structure and the land around it since the 16th century.
While putting forward this three-way division, the verdict also held that the place under the central dome of the demolished Babri Masjid is the birthplace of Ram as per the faith and belief of Hindus and hence should belong to Hindus as represented by Pandey. A makeshift temple of Ram has existed there since December 6, 1992, the day the Babri Masjid was demolished.
Justice Sharma, who accepted and decreed the suit made on behalf of Ram Lalla, completely held, along with the certification of the place under the central dome of the masjid as the birthplace of Ram, that “place of birth is a juristic person and is a deity”. “It is personified as the spirit of divine worshipped as birthplace of Lord Rama as a child. Spirit of divine ever remains present everywhere at all times for anyone to invoke at any shape or form in accordance with his own aspirations and it can be shapeless and formless also.” The other two judges, too, agreed that Ram was a juristic person and possession entitled him to hold the title. Thus, in principle, there was unanimity on Ram holding joint possession and, hence, the title.
Justice Agarwal, who wrote the lengthiest judgment, running into 21 volumes and more than 5,000 pages, quoted from the Rig Veda: “During the Dissolution, there was neither existence nor non-existence, and at that time neither Lok (world) was there nor was anything beyond the space. What encompassed all at that time? Where was the abode and of whom? What was the unfathomable and deep water?.... None knows and none can tell as to from where and how the Creation took place, because even the scholars or those having foresight, were born after the Creation. Hence, none knows the source of this Creation.”
After firmly affixing legality to faith and belief, the majority verdict also held that the disputed structure was constructed by Babar. Justice Sharma went one step further and said it was built against the tenets of Islam and could not have the character of a mosque.
The verdict also referred to a controversial report of the Archaeological Survey of India (ASI) stating that a massive Hindu religious structure existed earlier at the spot of the masjid. The verdict, however, accepted that the idols were placed under the middle dome of the disputed structure on the night of December 22-23, 1949.
The immediate political impact of the verdict imparting legality to faith and belief and anointing the place where the central dome of the Babri Masjid stood is all too evident. It has come as a shot in the arm for the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar, of which the Bharatiya Janata Party (BJP), the principal opposition party in the country, is a part. Though the constituents of the Sangh Parivar have been, by and large, moderate in their reactions, the Hindutva combine clearly perceives it as landmark event that has considerably dulled, if not negated, the stigma of the demolition of the Babri Masjid it undertook in December 1992.
The Congress, which leads the ruling coalition at the Centre, while welcoming the judgment, asserted that the demolition of the Babri Masjid was a criminal act. Home Minister P. Chidambaram was given the responsibility of doing this even as his Ministry successfully ensured the maintenance of law and order across the country.
The mood of elation within the Sangh Parivar was initially muted but got increasingly strident as the days passed. A reflection of this is available in the statements of Sangh Parivar leaders. “In any case the Ram Janmabhoomi movement has been vindicated through the judgment. The need for building a Ram temple has been accepted at the higher levels of the judiciary and through it in the nation as a whole,” said Acharya Giriraj Kishore, international vice-president of the Vishwa Hindu Parishad (VHP), which was the sword arm of the Sangh Parivar during the Ayodhya agitation.
Despite such political dimensions, the verdict evoked appreciation from several quarters for presenting what was seen as the best possible formula to solve the long-standing dispute. Former Attorney General Soli Sorabjee described the verdict as one marked by “judicial statesmanship”. The votaries of the “best possible formula in the given circumstances” also made a case for immediate intervention of the Central government to initiate negotiations among the three parties to arrive at an out-of-court settlement.
Talking to Frontline, Indra Bhushan Singh, advocate of the Lucknow High Court and long-term observer of the politics over Ayodhya, seconded the idea of the Central government intervening for a negotiated settlement. “What the High Court has done is to suggest building of a wall of harmony in Ayodhya, with inscriptions of Lord Ram on the one side and of Allah on the other. It is possible in present-day India to do it if the powers that be take the right initiatives,” he said.
The BJP, too, in keeping with the moderate role it has chosen to play within the Sangh Parivar, responded on similar lines. The party welcomed the verdict and stated: “Insofar as the judgment upholds the right of Hindus to construct a temple at the Garbh-Grih (sanctum sanctorum), it is a significant step forward towards the construction of a grand temple at the birthplace of Lord Rama.”

The opinion of the ASI and other expert agencies engaged by it was that there were remains of a Hindu religious structure where the disputed structure stood. The BJP believes that this verdict opens “a new chapter for national integration and a new era for inter-community relations”. Party leaders such as Ravi Shankar Prasad added that this new chapter could be made possible through the intervention of the Central government.
However, the reactions from parties involved in the dispute as well as some of their associate organisations did not raise much hope about such intervention. All the three parties in the dispute decided to appeal in the Supreme Court against the verdict. The Sunni Central Waqf Board and its associate, the Babri Masjid Action Committee (BMAC), which have had the biggest reversal on account of the verdict's acceptance of “the birthplace of Lord Ram”, have already initiated moves to go in appeal.
The Nirmohi Akhara is planning the same. Talking to Frontline from Ayodhya, Raja Ramachandra Acharya pointed out that the court verdict did not accord enough land for the construction of a proper temple for Ram. “They have suggested three-way divisions of a mere 1,500 square yards of land. How can we build a bhavya mandir (majestic temple) in that much land?” he asked. The VHP, too, made a similar statement. Its international general secretary Pravin Togadia reiterated the Hindutva organisation's long-standing position that there could be no mosque in the area that extended up to the chaudhakosi parikrama. This means no mosque can be built in an approximately 10-kilometre radius of the disputed site.
Nritya Gopal Das, president of the Ram Janmabhoomi Nyas Samiti, told Frontline that while his organisation welcomed the verdict, it would go to the Supreme Court to get the one-third part of the land given to the Sunni Central Waqf Board.
Ground-level reactions from the twin cities of Ayodhya and Faizabad are overwhelmingly sceptical about the three-way division of the site. Many residents belonging to Hindu, Muslim and Sikh communities were unanimous that the division and the subsequent building of a temple and a mosque in close proximity to each other was a sure-fire recipe for conflict.
“The effort of the judges to go beyond law and bring about something close to a negotiated settlement has little chance of working. In fact, it will complicate matters,” said Khaliq Ahmed Khan, a resident of Faizabad. In Ayodhya, Ram Prakash Gupta, a shopkeeper, aired the same view: “They could have decided one way or the other. This tightrope walk is bound to create permanent tension once the construction actually begins.”
It is evident that implementing the judgment or even using it as an instrument for negotiations is easier said than done. The use of faith and belief as legal categories is bound to be debated in great detail in the coming days and to face intensive critical assessment. The criticism of the same in the days immediately following the judgment was by and large confined to jurists and legal observers.
Among political parties, the Mulayam Singh Yadav-led Samajwadi Party (S.P.) questioned the logic of the High Court and said legal verdicts should be adopted on the basis of the Constitution and not on the basis of faith and belief. He went on to say that the judgment was tantamount to cheating Muslims of their rights. The S.P. president could well have his eyes set on reclaiming the Muslim vote bank that he seems to be losing to the Congress, but the fact remains that he has made a point that has wide credence among large sections of the judiciary.
The social and political ramifications of the verdict are bound to result in trying times for the Congress at the Centre. For it is only a matter of time before the more aggressive sections of the Sangh Parivar relaunch their agitation for the construction of a Ram temple in Ayodhya. The verdict has given these organisations a new weapon and a new energy. On the other hand, there is also the possibility of some sections of Muslims getting more and more involved in militant activities in response to a verdict that many feel denied the community its just rights.
The saving grace has been the sober and peaceful reaction from large sections of the community. But informed sources in intelligence agencies in Uttar Pradesh said that they were already worried that sleeping terrorist modules of jehadist groups in the State would use the climate created by the judgment to make a few strikes.
Clearly, the verdict has not done much to mitigate the Ayodhya imbroglio. On the contrary, the bizarre use of faith and belief as legal categories and the consequences thereof may actually add to the muddle.

Hard line is back

PURNIMA S. TRIPATHI
in New Delhi
But this time the BJP will be shooting from the shoulders of the sants and sadhus of the VHP.

DESPITE claiming that they will abide by the September 30 court verdict in the Ram Janmabhoomi title suit, the Bharatiya Janata Party (BJP) and the Vishwa Hindu Parishad (VHP) seem in no mood to accede one-third of the disputed land to the Sunni Central Waqf Board as directed by the three-judge Bench.
The stridency of the past may be missing, but the mood remains defiant, perhaps more so since their stand has been ratified by the court, too. They maintain that Muslims have no claim over the place that Hindus believe is the birthplace of Ram and that Muslims should willingly let go of their legal claim and hand over the entire place to Hindus to pave the way for the construction of a grand Ram temple. All this is in the name of national unity, integrity and communal harmony.
If the mood in the Sangh Parivar is any indication, it only seems to have hardened its position.
But this time, perhaps realising that the issue has lost its potential to reap political dividends, it has directed the BJP to remain in the background and let the VHP take the lead. This became evident on the evening of September 30 as details of the verdict started trickling in. The BJP leaders at the party headquarters in the capital were “unavailable”. It was Rashtriya Swayamsewak Sangh (RSS) chief Mohan Bhagwat who first faced the media. In a calibrated statement, and without hinting at the fact that the court had directed Hindus to give one-third of the land to Muslims, he said, “The judgment has paved the way for the construction of a Ram temple in Ayodhya. The judgment is not a win or loss for anyone. We invite everybody, including Muslims, to help build the temple.” He said happiness over the verdict should find expression in a controlled and peaceful manner within the limits of the law and the Constitution. “Uncalled for provocation must be avoided,” he reiterated, adding that the Ram temple movement was not a reactionary one, nor was it directed against any particular community. Perhaps at the back of his mind was the thought that any wild expression of joy could damage his side's prospects in the Supreme Court, where the parties can appeal in the next three months.
Questioned on the Muslims' claim over the land, he refused to say anything clearly, and instead appealed to Muslims to forget the ill will and bitterness borne out of the conflict and welcome the spirit of the verdict and help build a grand Ram temple.
Mohan Bhagwat's appearance was followed immediately by the VHP's general secretary, Pravin Togadia, accompanied by the ailing VHP patriarch Acharya Giriraj Kishore. They made it known in no uncertain terms that Hindus would not accede any land, either within the disputed area or outside it, to Muslims. “We have made it known to the world in our past resolutions that Ayodhya, and the area in question, is the birthplace of Ram Lalla and will not hand it over to anyone,” Togadia said. Asked whether they would not give one-third of the land to Muslims as per the court order, he said that since the court had decided unanimously that the place where the temple stood at present was the birthplace of Ram, and the title suit of the Sunni Central Waqf Board had been dismissed, Muslims' claim stood nullified.
“Our stand has been vindicated. The 110 feet (33.5 metres)/90 feet (27.4 m) land where Ram Lalla resides has been ruled to be the birthplace of Lord Ram. This has paved the way for a grand Ram temple and for a grand temple we will need the entire 67 acres (26.8 hectares) around the disputed area. Where is the question of giving any portion of this land to anyone else?” he said (Interview on page 16).
In fact, a statement issued by the VHP, on behalf of the Sant Uchhadhikar Samiti, the umbrella organisation of sants spearheading the temple movement, has made it absolutely clear that Hindus will not rest with the ownership of only 110\90 feet of land but will want the entire 67 acres to be handed over to them. The statement said “a grand Ram temple”, as has been decreed by the court, could be built only when the Centre handed over the entire acquired area to Hindus. “It is the wish of crores of Hindus that the Central government should take the initiative in this direction,” the statement said. The statement, which has been signed by Jagadguru Shankaracharya Swami Vasudevanand Saraswati on behalf of 49 sants, hailed the verdict as one that paved the way for Hindu-Muslim amity and appealed to the religious and social leaderships of Muslims to accept the verdict “with grace and come forward to help (in building a grand temple) so that it earns the love and respect of the courts and Hindus”.
The BJP leaders, who were the last from the Sangh Parivar to face the media, however, did not spell things out so categorically. Senior BJP leader L.K. Advani issued a carefully worded statement after an hour-and-a-half-long meeting with senior party leaders at his residence. In it he described the verdict as a “significant step forward towards the construction of a grand temple at the birthplace of Lord Ram”.
He said the Archaeological Survey of India (ASI) had conclusively proved that a grand Hindu structure stood beneath the disputed structure and there was no doubt it was a Hindu temple. He also expected Muslims to show magnanimity and give up any claim over the land.
“The BJP believes this verdict opens a new chapter for national integration and a new era of inter-community relations. The BJP is gratified that the nation has received the verdict with maturity,” he said in the statement, which was issued on behalf of the BJP, with party president Nitin Gadkari sitting by his side.
Former BJP president Rajnath Singh, all set to address the United Nations General Assembly in Hindi a la Atal Bihari Vajpayee, said the fact that the three-judge Bench had ruled unanimously that the place where the temple stood now was the birthplace of Ram should be reason enough for Muslims to give up any claims over the remaining land.
“The issue should now be sorted out through negotiations, which should begin before the case reaches the Supreme Court. Once the issue reaches the Supreme Court, it will leave no scope for any reconciliation. Muslims should understand that after the court verdict any Muslim claim over the land would be akin to Hindus staking a claim for a temple at Makkah. Now is the time for both communities to realise that since the title suit has been decided, there should be no further acrimony over the issue. Forget December 6, forget the past acrimony, let the past be a closed chapter and let us resolve the issue through reconciliation,” he said.
Asked whether the BJP would agree to hand over one-third of the land to Muslims in case the Supreme Court upholds the High Court verdict, he said this was a hypothetical question which he would not answer. Besides, he said, it was for the sadhus and sants, and not for the BJP, to decide on this.
“We never raised the issue with a motive to gain politically. We only articulated our viewpoint and the nation appreciated it. We never intended to create any hatred over the issue and now also we think the only way out is for reconciliation, which the government should initiate, and the BJP will support it,” he said.
Another senior BJP leader, who did not want to be named, said that since the Sunni Central Waqf Board's title suit claim had been dismissed by the court, Muslims should voluntarily give up any claim over the land and agree to cooperate in the construction of a temple in Ayodhya to set an example for national unity and integration.
The Sangh strategy this time is not to let the BJP get involved directly in the issue since it has realised it does not go down well with the more urbane and aware voters of the new India. Said the BJP leader: “A political party should not get involved in the construction of a mandir or a masjid. We lent our support to the cause as it was an issue of our national identity for crores of Hindus, not to gain political mileage. If there was any such mileage, it was by default. This time we will keep away. The sadhus and sants will decide. You will not see the BJP taking off on rath yatras or kar sevas this time.”
The message is clear, though the method may be different this time.

‘Against settled principles'

VENKITESH RAMAKRISHNAN
Interview with Zafaryab Jilani, counsel for the Sunni Central Waqf Board.

Zafaryab Jilani: "The honourable judges have arrived at a finding... on the basis of faith and belief."
ZAFARYAB JILANI, counsel for the Sunni Central Waqf Board in the Ayodhya title suit and convener of the Babri Masjid Action Committee (BMAC), is known for the poise and equanimity he displays in trying circumstances. His demeanour was no different when Frontline met him at his residence a day after the verdict of the Lucknow Bench of the Allahabad High Court on the Ayodhya title suit. He was constantly on the phone discussing the modalities of filing an appeal in the Supreme Court even as he interacted with visitors. “We want to go about it as systematically as we have done in the six-decade-old judicial process in the High Court. The process should gather momentum in the next few weeks,” he said before responding to questions on the verdict and the future plans of the Waqf Board and the BMAC. Excerpts from the interview:
Your initial reaction to the verdict was that it was partly disappointing. What exactly did you mean by that?
Let me start by placing on record the sense of gratification at having completed the legal process in the High Court after six decades. It was a long process marked by arguments over arguments. That this completion has happened is the satisfying part of the verdict. The disappointing part rests squarely on the fact that it has gone against the settled principles of law and evidence. The honourable judges have arrived at a finding not on the basis of facts or evidence but on the basis of faith and belief. In other words, a new category has been introduced into the judicial process. I have not seen any verdict from any court of the country, whether it is the High Courts or the Supreme Court, which is based on a category that has no connection to any of our time-tested laws and rules, including the Evidence Act or the Criminal Procedure Code.
But there is the argument that the court was grappling with extraordinary circumstances that needed extraordinary judicial interpretations.
Even if that contention is accepted for the sake of argument, there can be no doubt that such interpretations cannot go beyond the parameters of law as established in the country and as practised in the courts. But here you are deciding upon something as legendary as the birthplace of a god.
None of the Hindu texts, including Ramcharitamanas, considered to be one of the most authentic accounts of the life of Lord Ram, pinpoints the birthplace of Ram. I am of the firm view that the personality of Lord Ram is not at all in dispute. He has been described as ‘Imam-e-Hind' by the great poet of the East, Allama Iqbal, who had composed the Tarana-i-Hind ( Saare Jahan Se Achcha Hindustan Hamara). But as far as my understanding goes, Hindu mythology has it that Lord Ram was born 12 lakh or 14 lakh years ago. Is it not a bit too much to pinpoint the location of the birth, as part of a modern judicial process, and that on the basis of faith and belief these many centuries later?
There is also the question as to when the belief on the janmasthan started. It does not seem that the belief was there before 1885 because Mahant Raghubar Dass of the Nirmohi Akhara is himself on record citing the structure as a mosque.
Another extraordinary step in the judgment relates to the theory of three-way division. Here, too, it is not clear what the rationale is or what principles have been cited to suggest partition of the land and premises. None of the parties had made a plea for a division of the land. And, moreover, it has been accepted that the idols were placed by extraneous forces inside the premises in 1949. Once that is accepted, the plea of the Waqf Board for the possession of the land after the removal of the idols becomes naturally strong. This has been presented to the courts forcefully since 1961, and even in 1995. But that plea seems to have not been considered at all. I am yet to see the full judgment but cannot think of any rationale for overlooking this plea.
Again, some of the campaigners for the Ram mandir in Ayodhya have made it clear that they will not allow a mosque even within the chaudhakosi parikrama, which will mean many kilometres away from the site. Already, there are suggestions that Muslims should be large-hearted and give away even the one-third they may get. For us, this is nothing short of calling for surrendering the mosque. We will not accept that.
You are, of course, planning to go in appeal to the Supreme Court. What if the apex court affirms this....
That is a hypothetical question, which is best left unaddressed at this point of time. Coming back to the merits of the High Court judgment, I would say it is a bad precedent to follow. What it would lead to is innumerable cases on the faith and belief principle. If this is taken as precedent, claims can be made on any piece of property or structure or land saying that it is the faith and belief of one party or the other that it was the birthplace or the abode of one deity or the other. It would practically be an unending process. Some of the important buildings that house our constitutional institutions could face such claims on the basis of faith and belief.
Before the High Court verdict, you said this would not be about Hindus or Muslims but would reflect the victory of the rule of law and independence of the judiciary. You also said the cases relating to the title and possession of the Babri Masjid were apparently between two communities but actually related to the secular fabric of the country. Looking back, what would you say now?
I do not find any reason to alter this statement. The verdict is indeed about the secular fabric of our country and the rule of law. And we are approaching the Supreme Court. We have firm faith in the independence of the judiciary. That is also the reason for the repeated appeals by leaders of the community that they will not condone any violence or wrongdoing as a reaction. As I had said, our judicial process provides the opportunity and remedy to any party to the dispute who may feel dissatisfied with the judgment as a whole or with any portion thereof to approach the Supreme Court. That is the recourse we are taking in the near future.

‘Muslims should take the hint'

PURNIMA S. TRIPATHI
Interview with Ravi Shankar Prasad, counsel for the Hindu Mahasabha and a BJP general secretary.

Ravi Shankar Prasad:"A deity is a uniquely Hindu concept, which means a representative of God, which is one, omnipresent, permanent and inevitable."
Ravi Shankar Prasad, the BJP's national general secretary and chief spokesman, represented the Hindu Mahasabha, which fought the case on behalf of Ram Lalla Viraajman, the deity of Ram Lalla. The deity has been awarded one-third of the disputed land. Ravi Shankar Prasad explains how the concept of the deity being a party to a title suit is legally valid and why the way forward now is the route of reconciliation. “Otherwise, how are you going to ensure that exactly one-third of the land is given to each party? Are you going to sit with an inch tape to measure, and even if you do that, can it ever be done to each party's satisfaction?” he asked in this interview with Frontline. Excerpts:
The verdict seems to be based more on faith and belief and less on historical facts and evidence. Is this a good precedent?
The answer to this question lies in the specific points on which the court was to adjudicate. One of the points the court was supposed to look into was whether the disputed place was believed by Hindus to be the birthplace of Lord Ram and whether this was the place where they have been worshipping since time immemorial. Muslims never questioned the fact that Ayodhya is sacred to Hindus, they never questioned the fact that Ram was born in Ayodhya, and they never questioned the fact that Ram is divine to Hindus. Their only objection was to the exact place where Hindus believed Ram was born, and in this light the judges did well to look into faith and belief.
Let me add, the verdict about Ram having been born where the idols are placed and worshipped right now was given by all the three judges unanimously.
But making Ram Lalla a party to the title suit and even the court accepting this concept and ordering that one-third of the disputed land be given to the deity, how far is this legally justified?
The concept of deity as defined in Hindu religion is a legally accepted concept in law. I can quote at least 50 judgments to the effect that courts have accepted the existence of deity. A deity is a uniquely Hindu concept, which means a representative of God, which is one, omnipresent, permanent and inevitable. As per this concept the Ganga becomes a deity, the sangam of the Ganga and the Yamuna rivers is a deity, the entire Mount Kailas becomes a deity because Lord Siva is believed to be residing there. And this concept of deity is accepted by the law as well. It is legally valid and hence can be made a party to a law suit. It is also significant that all three judges have granted the plea of the deity, Justice Agarwal and Justice Sharma directly and Justice Khan indirectly.
But when the court has accepted that the idol was put inside the masjid on the night of December 22-23, 1949, how can this idol be described as a deity?
By virtue of Hindu faith, the Ramjanmasthan [the birthplace of Lord Ram] itself has become a deity, whether there was an idol or not. It is this concept of the janmasthan having acquired the status of a deity that the court has accepted.
What next? How do you think the place is going to be divided in three parts? Is it feasible?
The only road forward is the road of reconciliation. Either you sit and talk things out or go to the Supreme Court and spend another 60 years debating the issue and then sit with an inch tape [in case the verdict is upheld] and measure one-third part for each. Even if you do it, it can never be done to everybody's satisfaction and a point of dispute will continue to exist.
Since Muslims have never claimed that this mosque was an integral part of their faith, which Ram Lalla is for Hindus, the best option would be to sit down and talk and reconcile in the larger interest of all. This spirit of amity and reconciliation will be good for the larger canvas concerning all parties.
Do you think such reconciliation is possible because the other party might see it more as arm-twisting?
That, unfortunately, will be an extremely skewed way of interpreting things, which is being done by pseudo secularists. Muslims should be wary of any such agenda and make good of this larger horizon that has been made available to them through the court for reconciliation. I am hopeful saner and sober voices from amongst Muslims will emerge in due course and things will be sorted out sitting across the table. I believe a large chunk of the Muslim population will come forward and help in building the Ram temple in Ayodhya.
I appeal to Muslims to take forward the spirit of reconciliation that this court verdict has provided. I am hopeful a larger consensus for amity and reconciliation will emerge. We should allow the process to go on without letting vested interests derail it. Muslims should take the hint in the judgment and move forward.

‘History has taken a back seat'

T.K. RAJALAKSHMI
Interview with Professor D.N. Jha.

D.N. Jha, formerly Professor of History, Delhi University.
PROFESSOR D.N. Jha, who is one of the four professional and independent historians who submitted “A Historians' Report to the Nation”, is perplexed at the order of the three-judge Bench of the Allahabad High Court. Jha feels it is a “compromise judgment”, probably arrived at to maintain peace between communities, and not one based on historical facts. Excerpts from an interview he gave Frontline:
Should not a distinction have been made by the honourable judges between faith and historical fact?
Faith should never be allowed to supersede historical evidence. What seems to have happened is that faith has won over reason, which, I think, is unfortunate. Faith negates history.
Do you think that certain aspects of the order may have the potential to be used to question the veracity of several existing historical monuments? Also, would that not lead to a rewriting of history?
Yes, this is what is likely to happen. It is disrespect to fact, to historical evidence and to the tradition of history writing. I am not suggesting that historians are always objective, but serious historians are.
As a historian how would you interpret the judgment?
I do not think the contesting parties made a prayer for partition of land. They asked for a decision on the title. If the communities want to live together in peace, well, that is good for the country, but there is something called justice. My only apprehension is that as far as compromise is concerned, the political parties, who are backing some of the litigants, are not going to allow it to happen.
You were part of the team of independent historians that submitted a report to the nation on the Babri Masjid. Do you feel history or historical fact has had little role in the present context? What has been the verdict of history?
(a) I cannot understand how the courts have gone into the issues of faith. They have asserted that the site where the idols were placed was actually the birthplace of Ram. The judgment, therefore, is based on faith and theology, and certainly not on history. Historical evidence does not support the assertion that Ram was born where the idols were kept. I don't know what kind of evidence the court has relied on. Someone should have pointed out in court that the belief that the place was the birthplace of Ram was first clearly mentioned by a French Jesuit priest, Tiffenthaler, in 1788. Subsequently, many people propagated the opinion that Ram was born where the mosque stood and the mosque itself was built after destroying the temple.
But a Scottish physician, Francis Buchanan, who served in the Bengal Medical Service, visited Ayodhya in 1810, and wrote clearly that the temple destruction theory was ill-founded. The first conflict that took place between Hindus and Muslims over this was in 1855, and Wajid Ali Shah set up a three-member committee to defuse the situation. After the 1857 uprising [war of independence], in 1889, a Hindu priest went to the local court, staking his claim to the place and his plea was dismissed. After that, from 1889 to 1949, both Hindus and Muslims continued to offer worship at the Ram Chabutra peacefully except in 1934 when there was a conflict between them.
The saga of the conflict over Ayodhya began in 1949, when the idols of Ram were surreptitiously placed in the central dome of the Babri mosque with the connivance of the Deputy Commissioner of Faizabad, K.K.K. Nayar, who is said to have been a member of the RSS.
(b) I did not participate in the excavation. I was part of the group of historians who scrutinised evidence, before the demolition of the mosque. The then Prime Minister, Chandra Shekhar, wanted the disputing parties to negotiate and come to an agreement. The Vishwa Hindu Parishad had two or three historians and archaeologists with it, while the Babri Masjid Action Committee did not have any. We felt that it was an issue that concerned the nation, and four of us, Suraj Bhan, Athar Ali, R.S. Sharma and I, decided to attend their meetings as independent historians.
It was in that capacity that we wrote our report and submitted it to the Government of India, and later published it as “Ramjanmabhumi-Baburi Masjid: A Historians' Report to the Nation”. During the entire period of the abortive negotiations, the Archaeological Survey of India [ASI] played fast and loose with us and withheld important material, including the site notebook connected with the Ayodhya excavations of the Ramayana project of 1975-80. We wrote several letters to the government asking for the evidence, which were never acknowledged. The ASI's attitude on the Ayodhya issue has always been ambivalent. The ASI has remained a government department, having no autonomy. Also, it has been remained packed with Hindu fundamentalists.
(c) As far as the verdict of history is concerned, if you go back in time, before 1528, there is evidence of several religious groups who had a claim on Ayodhya. The Chinese pilgrim Xuanzang wrote that there were 3,000 Buddhist monks and hundred monasteries and only 10 devas or temples belonging to the brahmanical religion. Buddhism was dominant in Ayodhya in the seventh century. The first and fourth Jain Tirthankaras were born in Ayodhya. Even now Ayodhya remains a holy place for Jainas. There is strong evidence of Muslim presence since the 12th century onwards. Sufi saints visited Ayodhya from the 12th century – one of them was Qazi Qidwatuddin Awadhi, who came from Central Asia and is said to have been a disciple of Khwaja Moinuddin Chisti of Ajmer. There are many Sufi shrines in Ayodhya. Thus, there is evidence of Buddhist presence, Jain presence and a Muslim past dating to the 12th century. I don't understand how can all this evidence be dismissed and the assertion made that this place was the birthplace of Ram.
Ayodhya was not even a pilgrimage centre before the 17th and 18th centuries. There is a reference to Ayodhya in Skanda Puranas called ‘Ayodhya Mahatmya'. The composition of this text stretches over 300-400 years with lots of interpolations and contradictions. There are at least a hundred verses devoted to the place where Ram ascended to heaven, the swargadwaar, located on the banks of the river Sarayu and only 10 verses referring to his birthplace, but not the site of his birth.
The three historically attested Ram temples are in Madhya Pradesh, belonging to the 12th century. Tulsidas' Ramcharitamanas does not specify the locale of Ram's birth; neither does he refer to the destruction of a temple to build a mosque. If we travel further back in time, in the 11th century, there was a minister of the Garhwal king [who ruled over the Awadh region] called Bhatt Lakshmidhara. He wrote a book called Krityakalpataru, which has one section on the Tirthas, called Tirthavivechankanda. This does not mention Ayodhya as a centre of pilgrimage.
If the Garhwal kings did not mention it in the 11th century, how can it be said to be a pilgrimage centre or the birthplace of Ram? In fact, Prayag was a more important centre of pilgrimage. There was no Ram temple in the whole of Uttar Pradesh before the 17th century, to which period belongs Kanakabhavan, or Kanakamandapa, but if one goes to north Bihar and the Nepal Terai, in Janakpur, there is a temple dedicated to Sita, constructed in 1898.
Do you feel that the Bench did not go into the details of the historical and archaeological evidence?
I wish they had taken historical evidence into consideration. Several archaeologists and historians like the late Suraj Bhan, Shireen Ratnagar, R.C. Thakran and Suvira Jaiswal were called to depose before the court. What happened to all the evidence presented by them? History should have played a role. When something is decided on the basis of faith, then history takes a back seat.
The VHP maintains that Muslims destroyed 30,000 temples to build mosques. Richard Eaton, an American historian who has written on the desecration of temples, says that the total number does not exceed 80. History is full of examples to show that religious structures were constantly destroyed by the ruling classes of various hues and religions.
The findings of the ASI, which were perhaps relied on by the court, are not conclusive. In the excavation report (2003), it was claimed that a massive structure was found under the mosque and this was held up by pillars. It further said that brickbats were found at the pillar bases. Several archaeologists who were watching the digging complained to the court that the scattered brickbats were assembled together to look like pillar bases. It is also interesting that the chapters of the main text of the report (2003) have the names of the authors, but no one is mentioned as the author of the conclusion called “Summary of Results”.
Moreover, in the main text of the report, there is no mention of any temple, but it suddenly pops up in the “Summary of Results”. The report was obviously a doctored document.
How is this issue linked to the communalisation of society? One of the reasons why you and a few others offered to give evidence was that you were concerned about the implications of the dispute.
The first conflict around this was in the late 19th century. Both communities continued offering prayers. It was in the 1970s that the VHP communalised the issue in order to drive a wedge between the two communities. This finally led to the destruction of the mosque. Naturally, Muslims felt hurt and so were many Hindus. But the fundamentalists went on with their divisive agenda, and the Bharatiya Janata Party used the Ayodhya issue to catapult itself into power.
Can courts adjudicate on issues of historicity or faith?
There is a spurt in the number of Hanuman temples in the capital. In the coming years, the government and the courts will not only be required to solve the problem of one Ram, but of numerous Hanumans, whose temples have been mostly constructed on unauthorised land.