In its Palampur Resolution of 11 June, 1989, the BJP had declared,
“It just cannot be sorted out by a court of law. A court of law can settle issues of title, trespass, possession etc. But it just cannot adjudicate as to whether Babar did actually invade Ayodhya, destroy a temple and build a mosque in its place…The sentiments of the people must be respected and Ram Janmabhoomi handed over to the Hindus — if possible through a negotiated settlement, or else by legislation. Litigation certainly is no answer.”
On 9 November 2019, PM Narendra Modi called the Supreme Court’s verdict in the Ayodhya dispute, “a golden chapter in the Indian judicial history.”
The apex court of the country, in a unanimous verdict decided to hand over the entirety of the 2.77 acres of disputed land—where the Babri Masjid once stood—to the Hindu claimants. At the same time, an alternate plot of 5 acres was allotted to the Sunni Waqf Board for the construction of a mosque.
Kesavananda Bharati v. State of Kerala is often cited as the greatest case in Indian constitutional history. The hearings in the matter lasted for a record 68 days, at the conclusion of which the Supreme Court propounded the ‘basic structure doctrine’ – a novel guarantee against any attempt – even by a majority elected solely for the purpose – to amend human rights out of India’s Constitution. The hearings in the Ayodhya case were the second longest proceedings in the history of the Supreme Court—and lasted for 40 days. The fact that it was so is surprising to no one. The court was, after all, adjudicating on the legal title to perhaps the most bitterly contested piece of land in Indian political history.
Back in 1528, Babur had commissioned Mir Baqi to build the mosque. From the 16th to the 18th century, there is no record or discussion of the mosque having been built over a demolished temple, nor indeed is there any record of claims being made that the site was the birthplace of Ram. Historians like Saiyid Zaheer Husain Jafri and Manu S. Pillai have pointed out that the first origins of the Hindu claim to Babri Masjid as the Ram’s birthplace can be traced to the communal conflict that occurred in Ayodhya in the mid-1850s.
The dispute related to the alleged desecration and demolition of an old qanati masjid at Ayodhya which was enclosed within the premises of Hanumangarhi. When the Muslims claimed that Hanumangarhi was “originally" a mosque, the Hindus, as a counter-claim, reminded them of the temple upon which Babri was supposed to have been built.
In order to pacify such tensions the British administration erected a wall with railings in 1856-7, to provide a measure of bifurcation to observe religious worship – namaz by the Muslims inside the railing within the domed structure of the mosque, and worship by the Hindus outside the railing.
Subsequently, parties sought to litigate in this issue. Petitions were made in 1860, 1877, 1883 and 1884 by Muslims, complaining about the increasing interference of some local seers and sadhus and illegal occupation of land. All these petitions were rejected.
In 1885, the first legal representation was made by someone from the Hindu side. Mahant Raghubir Das sought permission to build a temple on the chabutra (located in the outer courtyard of the Babri Masjid). His plea was later rejected by a local court.
During the course of the communal riots which took place in 1934, the domes of the Masjid were damaged. Renovation was carried out at the cost of the British Government through a Muslim contractor and a fine was imposed on the Bairagis and Hindus of Ayodhya to recover the cost of repair.
On the night of 22-23 December, 1949, a group of Hindu fanatics surreptitiously placed idols of Ram in the Masjid. RSS and VHP claimed that Ram Lalla appearing in the mosque was a divine miracle. Since then, the VHP and other Hindu organisations have been celebrating the day as “Ram Prakatotsava”.
While the "appearance of the idol" created an unprecedented frenzy among Hindu devotees, KK Nayar who was the district magistrate of Faizabad was asked by his seniors (then Chief Secretary Bhagwan Sahay and Inspector General of Police BN Lahiri) to remove the idol. Nayar refused to do so claiming that it would lead to communal riots. Arguing before the Supreme Court in September 2019, Rajeev Dhavan, counsel for the Muslim parties highlighted that the "then Prime Minister Jawaharlal Nehru had expressed grave concern about the incident." It was alleged that Nayar even ignored the instructions from Nehru to remove the idol.
Nayar who was posted at Faizabad for nine months and fourteen days, from 1 June, 1949 till 14 March, 1950 was accused of 'dereliction of his duty' as district magistrate and along with Guru Dutt Singh was forced to quit the service. In the 1967 Lok Sabha elections, he was fielded by Bharatiya Jan Sangh as its candidate and he won from Bahraich in Uttar Pradesh.
Coming back to 1949, proceedings under Section 145 of the Code of Criminal Procedure (CrPC) were initiated. The inner courtyard was attached (thereby preventing Muslims access thereto), a receiver was appointed, and the worship of Hindu idols was permitted.
Professor of Law, Faizan Mustafa describes the legal status quo that emerged post the 1949 desecration,
“Muslims were not allowed to pray inside the mosque, the idol would not be removed, and that Hindus would have a “limited” right to pray and pujaris would ensure daily bhog. By one act of criminal trespass, a mosque was converted into a temple.”
In 1985, the Supreme Court passed a landmark verdict in the Shah Bano case. The case centred on a Muslim husband’s duty to provide maintenance to his divorced wife. It was claimed that as per Muslim personal law, a husband’s liability after divorce extended only up to the iddat period (the three month period directly following the divorce, during which a Muslim woman is not permitted to remarry). The Supreme Court however rejected this argument and held that Section 125 of the CrPC would require the husband to maintain his wife, even beyond the period of iddat. Justice Y.V. Chandrachud had said in his judgment,
“The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion.” (Mohd. Ahmed Khan v. Shah Bano Begum)
The judgment was a huge blow to Muslim personal law. It was met by massive protests from the Muslim community. There were calls among Muslim conservatives asking for the Parliament to pass a law nullifying the Shah Bano judgment. This was met by counter-protests from Hindu conservatives, who warned the government from engaging in the politics of “minority appeasement”.
A politically inexperienced Rajiv Gandhi responded with a disastrous balancing act. In order to appease the Muslim conservatives, his government enacted the Muslim Women (Protection of Rights in Divorce) Act, 1986. This Act, contrary to its name, entirely reversed the protection granted to Muslim women by the Shah Bano judgment. Soon after, to pander to the Hindu hardliners, he ordered the unlocking of the Babri Masjid, permitting the Hindus to pray to the idols in the inner courtyard.
Arif Mohammad Khan, a senior politician who was then in the thick of events says,
“[T]he removal of the lock practically accepted the disputed structure as a temple and consequently the demand to build a proper temple to carry out the functions that were already taking place inside the building gained more strength.” Madhav Godbole, who quit as Union home secretary after the demolition of the Masjid (in 1992), called Rajiv Gandhi the "second most prominent kar-sevak” in the Ayodhya dispute. The first he maintained, was KK Nayar."
Gandhi’s balancing act however didn’t yield sufficient results. The BJP capitalised on the dissent against the Congress government amongst the Hindus. From holding 2 parliamentary seats in 1984, the BJP cashed in on its Hindutva movement, winning 85 seats in 1989, and 119 seats in 1991.
In 1989 the BJP had announced that the construction of a Ram temple on the site where the Babri Masjid then stood was its key political agenda. One of BJP’s most powerful leaders—LK Advani—launched a rath-yatra from Somnath to Ayodhya with the aim of stirring up support for the construction of the Ram temple where the mosque stood. On 25 September, 1990, Advani said,
“We want to restore the pride of the country by building the Ayodhya temple, which is the second phase of nationalist renaissance after Independence.”
There are several events that mold a country’s moral fabric. 6 December 1992 will go down in the annals of Indian history as one of those days that irreversibly polarised the nation’s understanding of its commitment to secularism. In an act of political vandalism incomparable in the history of independent India, the Babri Masjid was demolished by over 1,50,000 kar-sevaks.
The following are excerpts from India Today’s report of that day:
“Shortly after noon, the Babri Masjid's three domes had been "submerged" by kar-sevaks. Journalists were attacked. One by one, the domes crumbled. The screams of exultation with each blow of a pickaxe, each thrust of a rod, each dome that came crashing down. If there were no implements, the frenzied hordes would have used their bare hands to the same effect, so powerful was the poison that coursed through their veins in those few hours of madness.”
This unilateral act of historical vengeance sparked off communal riots in several Indian cities, causing the death of at least 2,000 people.
The Supreme Court Judgment
The Supreme Court, adjudicating on the title dispute in 2019, takes note of the many unlawful acts of Hindus. The court says, “The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law” [para 788, clause XVIII (vii) of the judgment]. And yet, the court proceeds to hand over the entirety of the disputed land to the Hindu parties.
One of the foremost principles of natural law is, “He who comes into equity must come with clean hands,” or as otherwise expressed, “He that hath committed inequity shall not have equity.” Both a historic as well as legal assessment of this dispute renders it amply clear that the conduct of Hindu parties has been inequitable. On what basis, then, does the court proceed to hold in their favour?
The first thing to clarify here is that the court was not adjudicating on the question of whether a Ram temple once existed where the Babri Masjid stood. Based on the ASI report, the court comes to the following conclusions,
“The excavation indicates the presence of an underlying structure below the disputed structure;” “The underlying structure was not of Islamic origin;” “There is no specific finding that the underlying structure was a temple dedicated to Lord Ram;” “Since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries.”
-(paras 509, 788)
The court therefore refused to determine questions of possession based on archaeological findings.
The judgment seeks to remind us that this is in fact a title dispute, and that such dispute ought not be adjudged by religious yardsticks.
“The adjudication of civil claims over private property must remain within the domain of the secular if the commitment to constitutional values is to be upheld.”
India’s first Prime Minister, Jawaharlal Nehru was not a big fan of boasting about India’s secular commitments. Speaking in the Constituent Assembly, he had said,
“Another word is thrown up a good deal, this secular state business. May I beg with all humility these gentlemen who use this word often to consult some dictionary before they use it. It is brought in at every conceivable step and at every conceivable stage. I just do not understand it. It has a great deal of importance, no doubt. But, it is brought in all contexts, as if by saying that we are a secular state we have done something amazingly generous, given something out of our pocket to the rest of the world, something which we ought not to have done, so on, and so forth. We have only done something which every country does, except a very few misguided and backward countries in the world. Let us not refer to that word in the sense that we have done something very mighty.”
-(Constituent Assembly Debates, volume 10, pages 398-401)
While speaking these words, it must have seemed to Nehru that secularism was the only natural way for India to exist, and that any reiteration of the greatness of this value is unnecessary bravado. But that is not true for the India of today, where the secular fabric of our polity faces an existential threat.
In this context, the Supreme Court was aware of the highly sensitive task of adjudication that lay before it. Hence, the court undertook several steps to reiterate the fact that it was committed to secularism in this adjudication process. The court repeatedly emphasized that secularism is a basic feature of the Indian constitution. In doing so, the court also extolled the values of The Places of Worship Act. “Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution” (para 83).
The court remarks that,
“...title cannot be established on the basis of faith and belief above” (para 788). Despite such reassurances, the court seems to defer to faith at several points in the judgment. “Whether a belief is justified lies beyond ken of judicial inquiry;” “Once the witnesses have deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief.”
To this Prof. Mustafa points out the court’s inconsistent position,
“But did not this very court interpret Koran on maintenance in the Shah Bano case (1985) and on triple divorce in the Shayara Bano case (2017)? Did it not reject the Hanafi interpretation?”
The judgment makes a cardinal deference to Hindu faith when it seeks to overlook the significance of the dividing wall set-up by the British. This allows the court to disregard the crucial bifurcation of the disputed land between an inner courtyard (where Muslims offered namaz) and an outer courtyard (where Hindus prayed).
“Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the ‘Garbh-Grih’ being the birth-place of Lord Ram”
At this point, it must be mentioned that the court’s position here is factually untenable. As mentioned earlier, the Hindu litigation in this entire dispute had originated with the claim that Ram chabutra (located in the outer courtyard) is the birthplace of Ram. The suit that Mahant Raghubar Das had filed on January 19, 1885, sought permission to build a temple on the chabutra. The district judge, dated March 26, 1886, ruled,
“This chabutra is said to indicate the birthplace of Ramchander.”
Surely, if for the Hindus the entire land was meant to be Ram’s birthplace, the original litigants wouldn’t have restricted their title claims to just the chabutra.
The consequences that follow from the court ignoring such distinction between inner and outer courtyards (and treating them as a composite whole) are of paramount importance. The court made two important conclusions that underpin its final orders,
1. “The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.”
2. “The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims.”
-(para 788, clause XVIII)
Therefore, as opposed to granting the Hindu representatives possession to the outer-courtyard, and then proceeding with a balancing act with respect to the possessory title for the inner courtyard, the court could eventually conclude that,
“on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims…”
-(para 800; emphasis supplied)
And hence the court determined that the,
“Possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.”
The trustees shall have the powers for the construction of a temple and all necessary incidental and supplemental matters.
This final decree of the court raises another question on its adjudication. Can a secular State be ordered to facilitate the construction of a temple, which is an essential part of the Hindu belief? Does this not amount to a secular State fostering a particular religion?
Eminent legal scholar Upendra Baxi said the Centre was already empowered under Section 6 of the Acquisition of Certain Area at Ayodhya Act, 1993 to vest the disputed land in a trust or authority.
Justice K. Chandru, former Madras High Court judge, however argued that the Ayodhya Act was upheld only as an,
“interim measure so that land was not tampered with or frittered away when the case of its title and possession was still under litigation.”
He questioned why the apex court directed the Centre – which was not a party to the Ayodhya title suits or appeals – to formulate a scheme for the land. The court could have very well asked the local civil court under Section 92(g) of the Code of Civil Procedure to settle a scheme for the land.
The judgment has also been criticized for imposing differential evidentiary standards. A crucial factor that weighs with the court in deciding against the Sunni Waqf Board is the inability of the Muslim claimants to show that namaz was offered in the mosque before 1856.
“But, a crucial aspect of the evidentiary record is the absence of any evidence to indicate that the mosque was, after its construction, used for offering namaz until 1856-7.”
However, in its recognition of the Hindu claim over the inner courtyard, the court holds,
“Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome.”
-(para 788, clause VII; emphasis supplied)
This is a manifestly inconsistent standard. While the Muslims claimants are required to prove that namaz was in fact offered in the mosque before 1856 (a fact which would be clear as day to any observer), the burden on the Hindu claimants is merely that they “continued to assert” their right to pray.
It must be noted that the fact that finally settles the dispute in favor of the Hindus is their unimpeded possession of the outer courtyard, whereas what goes to the detriment of the Muslim parties is that there were repeated conflicts regarding the possession of the inner courtyard.
“The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard.”
Perhaps the greatest indictment of the judgment would be that it uses the repeated acts of disruption and interference on part of the Hindus to eventually hold in their favour. The court conveniently forgot the cardinal principle of equity mentioned above,
“He who seeks equity must do equity.”
The fact that Muslims across generations had solemnly, and in a dignified manner, respected the rights of Hindu claimants to pray at the Ram chabutra and Sita ki rasoi was eventually held against them, insofar as it was used to prove exclusive possession of the Hindus over the outer-courtyard. Had Muslims not offered this courtesy, would the verdict have been different?
I seek to conclude with AG Noorani’s words of cautionary wisdom,
“When the communal pitch and opportunism are gone, Indians themselves will look back in shame on a structure built with force and deceit.”
Views expressed are solely those of the author.
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About the Author
Parth Maniktala holds a Bachelors in English from Hans Raj College, Delhi University, where he also served as the President of the Debating Society. He has been recognized as one of Asia’s top 10 speakers at the United Asians Debating Championship held in Cambodia. He has also been the chief adjudicator of the annual national schools debating championship of Nepal. Apart from debating, he has a keen interest in cinema and literature. Currently, Parth is pursuing his L.L.B. Degree from Campus Law Center, University of Delhi, India. Parth is also an Editor at Polemics and Pedantics Magazine.