A radio message sent at 10.30 a m on December 23, 1949 by the district magistrate K K Nayar to the chief minister Pandit Govind Ballabh Pant, the chief secretary and the home secretary, read thus: “A few Hindus entered Babri Masjid at night when the Masjid was deserted and installed a deity there. DM and SP and force at spot. Situation under control. Police picket of 15 persons was on duty at night but did not apparently act.” This message was based on police constable Mata Prasad’s report to the Ayodhya police station earlier.

The Babari Masjid Question:

 History, Law & Politics

 A G Noorani

IT is all to the good that, at long last, judges of the Special Bench hearing the Babari Masjid case visited on May 4, 2002 the site of the mosque which was demolished on December 6, 1992. The three judges who comprised the bench hearing the case are Justices S R Alam, Sudhir Narain and Bhanwar Singh. The PTI report on the visit said that they were apprised by the officials of the security arrangements and facilities provided to the devotees for having ‘darshan’ of the ‘Ram Lala’ in the make-shift temple.

REFRESHING CHANGE IN JUDICIARY’S ATTITUDE

The bench has begun to record evidence in the case daily; itself or through a commissioner appointed by it. People are looking forward to a just verdict from the bench.

It is not widely known that the Supreme Court’s ruling on March 13, 2002 was the first instance of a judicial pronouncement in favour of the aggrieved party, the Muslims, in the half century of litigation in the matter as is well known despite the Attorney-General Soli J Sorabjee’s energetic intervention the court forbade “religious activity of any kind” on the land acquired by the government of India after the demolition. It included the site and areas adjacent to it.

This writer would not go as far as Justice V R Krishna Iyer did on November 10, 1989 when he said, “the judiciary will be described as the villain of the peace.” In his view it lacked the guts to face the issue (The Times of India, November 11, 1989). Certainly the record since December 1949 was most disappointing. The Supreme Court’s ruling of March 13, 2002 came as a refreshing change.

The record proves three things. First, in the past the Hindus did not seek possession of site of the mosque at all. They sought permission to build a Ram temple on a chabutra (platform) outside the mosque but adjacent to it within the compound. Had the permission been granted in the late 19th century, none of the nonsense about the site of the mosque being the birthplace of Ram, belatedly aired decades later, would have been heard.

Secondly, till October 1949, on the eve of the take-over of the mosque and its conversion into a temple on December 22-23, 1949, the government-sponsored efforts were on precisely in that direction --- the chabutra and no other place.

Thirdly, the Babari Masjid was very much a mosque where namaaz was said right till its forcible takeover with the help of K K Nayar, the deputy commissioner of Faizabad, later a Jan Sangh MP, and with the connivance of chief minister G B Pant who foiled the attempt by prime minister Jawaharlal Nehru to set right the wrong. Let the record speak for itself.

THE RECORDS SPEAK THE TRUTH

On January 29, 1985, Raghubar Das who claimed to be the mahant of the Janmasthan Ayodhya, filed a civil suit against the secretary of state for India in council for “a decree for awarding permission to construct a temple over the Chabutra Janmasthan situated in Ayodhya and restraining the defendant from prohibiting or obstructing the plaintiff in the construction of the temple.” The dimensions of the chabutra were specified.

Para 2 of the plaint read thus: “the chabutra of Janmasthan is 21 feet towards East and West and 17 feet towards North and South, and therein Charan Punya lies and there also a small temple over it, which is worshipped.” If in his view the sanctum sanctorum of the temple lay in the mosque, the mahant would surely have claimed it or at least mentioned it.  No reference was made to the mosque.

The suit was keenly contested. The plaintiff, the government pleader, one Mohammed Asghar and his pleader were fully heard. The mahant argued that “if a temple is constructed no harm is done to any one and the worship which is done at present will continue in the same manner in future also.” That was at the chabutra.

The sub-judge of Faizabad, Pandit Hari Kishan Singh, however, dismissed the suit by judgement dated December 24, 1985.

The judge found that the plaintiff was, indeed, in possession of the chabutra and collected the offerings made there. “In 1855 after the fight amongst Hindus and Muslims, a boundary wall was constructed to avoid future disputes, so that the Muslims should worship inside that wall and the Hindus should worship outside that wall, hence the chabutra and the land which situate (sic!) outside the boundary wall, belong to Hindus and the plaintiff.”

He explained why he declined to decree the suit. It a temple is constructed on the chabutra at such a place, then there will be sound of bells of the temple and sankh when both Hindus and Muslims pass from the same way and if permission is given to Hindus for constructing a temple then one day or the other a criminal case will be started and thousands of people will be killed.”

The plaintiff appealed to the district court. The judgement of the district judge, Col F E A Chamier, in Civil Appeal No. 27 of 1885, dated March 18, 1886, is as instructive. He had read the Gazetteeer  of Oudh, as had Pandit Hari Kishan; but was more impressed. The errors in the Gazetteer and in English writings on Babur and Ayodhya have been fully exposed by now; most notably by Sushil Srivastava of the Department of Medieval and Modern History, University of Allahabad in Probe India (January 1988) and in an article in this volume. (See also the letter by Indrajit Datta and nine others in The Statesman, October 22, 1989).

The district judge remarked: “I visited the land in dispute yesterday in the presence of all parties. I found that the masjid built by the Emperor Babur stands on the border of the town of Ayodhya, that is to say to the west and south it is clear of habitations. It is most unfortunate that a masjid should have been built on land specially held sacred by the Hindus, but as that even occurred 356 years ago it is too late now to remedy the grievance. All that can be done is to maintain the parties in status quo. In such a case as the present one any innovation could cause more harm and derangement of order than benefit.”

He added: “this chabutra is said to indicate the birthplace of Ram Chandra.  In front of the gateway is the entry to the masonry platform of the masjid. A wall pierced here and there with railways divides the platform of the masjid from the enclosure on which stands the chabutra” (Italics mine).

The judge noted: “the true object of the suit was disclosed by B Kuccu Mal (the plaintiff’s pleader) yesterday when we were standing near the masjid – namely that: the British government as no respecter if persons was asked through its courts to remedy an injustice committed by a Mohammedan Emperor.” Even so, the claim was to the chabutra, not the mosque. The appeal was dismissed on the ground that “there is no ‘injuria,’ nothing which would give a right of action to the plaintiff” (vide, Muslim India, March 1986, pp 105-8 for the texts).

 The mahant appealed, once again, on May 25, 1886 to the highest court in the province. He contented that the district judge was wrong in cancelling the findings of the sub-judge, “declaring the right of property to rest in the plaintiff,” and that the district judge was wrong in stating that the masjid was built by Emperor Babur.

The judicial commissioner, W Young, also dismissed the appeal by his judgement dated November 1, 1886 and observed:

“This spot is situated within the precinct of grounds surrounding a mosque erected some 350 years ago owing to the bigotry and tyranny of the emperor who purposely chose this holy spot, according to Hindu legend, as the site of his mosque. The Hindu seem to have got very limited rights of access to certain spots within the precinct adjoining the mosque and they have for a series of years been persistently trying to increase those rights and to erect buildings on two spots in the enclosure namely: (1) Sita-ki-Rasoi (kitchen of Sita) and (2) Ramchander-ki-Janmabhoomi (birthplace of Lord Rama). The executive authorities have persistently refused these encroachments and absolutely forbid any alteration of the status quo.”

An inquiry was conducted in 1936 by the then commissioner of waqfs under the UP Muslim Waqfs Act, and it was held that the Babri Masjid was built by Babur who was a Sunni Muslim. The report was published in the official gazette dated February 20, 1944. This was found in 1945 litigation between the Shia Central Board of Waqfs and the Sunni Central Board Waqfs in the court of the civil judge, Faizabad. The civil judge, S A Ahsan, in his judgement dated March 23, 1946, held that the mosque was founded by Babur Shah and that evidence showed that the mosque has been used by the members of both sects.

The mosque and its appurtenant land, a graveyard know as Ganj-e-Shaheedan Qabristan, were registered as Waqf No. 26 Faizabad with the UP Sunni Central Board of Waqfs under the Act of 1936.

PRECEDING THE TAKEOVER

The city magistrate’s note of October 10, 1949 shows how close the authorities were to averting a tragedy of grave proportions:

“D.C

“As per your orders, I went to the spot and inspected the site and enquired all about it in detail. The mosque and the temple both are situated side by side and both Hindus and Muslims performed their rites and religious ceremonies. Hindu public has put in this application with a view to erect a descent (sic!) and Vishal temple instead of the small one which exists at present. There is nothing in the way and permission can safely be given as Hindu population is very keen to have a nice temple at the place where Bhagwan Ram Chandraj was born. The land where temple is to be erected is of Nazul.”

However, campaign was mounted preceding the takeover. There was sustained harassment of Muslims. The background has been recorded in two reports by the waqf inspector Mohammad Ibrahim, dated December 10 and 23, 1949, respectively to the secretary of the Waqf Board.

The first report complained that “any Muslim going towards the masjid is accosted and called names, etc…. People there told me that there is a danger to the masjid from the Hindus…” The second report recorded the inspector’s impressions on December 22, 1949 the last day before the takeover of the mosque. It is relied on by the VHP presumably because at one place it complained that namaz (prayer) and azan (the call for prayers) were not being said. But it did record that the Friday prayers were being said and “Subhe (dawn) namaz is also done (sic!). Then it is locked.” He recorded also that “the keys of the lock of the masjid are with the Muslims.”

The abnormalities are all faithfully recorded: “When the namazis (worshippers) leave, from the surrounding houses shoes and stones are hurled towards the namazis. Muslims, out of fear, do not utter a word. Lohia also visited Ayodhya after Raghodas and gave a lecture…. Don’t harm the graves… The Bairagis said masjid is Janmabhoomi and so give it to us… I spent the night in Ayodhya and the Bairagis are forcibly taking possession of the masjid…..”

Both these witnesses are fully corroborated by two incontrovertible and uncontroverted documents --- a radio message sent at 10.30 a m on December 23, 1949 by the district magistrate K K Nayar to the chief minister Pandit Govind Ballabh Pant, the chief secretary and the home secretary. It read thus: “A few Hindus entered Babri Masjid at night when the Masjid was deserted and installed a deity there. DM and SP and force at spot. Situation under control. Police picket of 15 persons was on duty at night but did not apparently act.”

This message was based on police constable Mata Prasad’s report to the Ayodhya police station earlier. Here is a translation of the FIR lodged by Sub Inspector Ram Dube, Police Station Ayodhya, on December 23, 1949, as certified by the office of the city magistrate on February 11, 1986:

“According to Mata Prasad (paper no. 7), when I reached to (sic) Janam Bhoomi around 8 o’clock in the morning, I came to know that a group of 50-60 persons had entered Babri Mosque after breaking the compound gate lock of the mosque or through jumping across the walls (of the compound) with a stair and established therein an idol of Shri Bhagwan and painted Sita Ram, etc, on the outer and inner walls with geru (red loam). Hans Raj on duty asked them to defer but they did not. These persons have already entered the mosque before the available PAC (Provincial Armed Corps) guards could be commanded. Officials of the district administration came at the site and involved themselves in necessary arrangements. Afterwards, a crowd of 5-6 thousand persons gathered around and while chanting bhajans and raising religious slogans tried to enter the mosque but were deferred and nothing untoward happened thereon because of proper arrangements. Ram Das, Ram Shakti Das and 50-60 unidentified others entered the mosque surreptitiously and spoiled its sanctity. Government servants on duty and several others are witnesses to it. Therefore it is written and filed.”

On December 26, 1949, Nehru asked Pant to interest himself personally in the matter. On January 9, 1950, Sardar Patel also remonstrated with him:  “Any unilateral action based on an attitude of aggression or coercion cannot be tolerated.” Nehru offered to go to Ayodhya himself. Pant dissuaded him.  “Finding Pant immune to his pleadings,” Nehru turned to the state’s home minister Lal Bahadur Shastri. “I fear that we are leading again for some kind of disaster.” To Nehru, the worst feature of it was that “some of our own people” should have approved of it. Pant could not have failed to perceive the significance of the rebuke.

DISHONEST GAME PLAN

There was, however, one official of impeccable secular credentials who was indignant at what had happened, the state’s chief secretary Bhagwan Sahay, later governor of Kashmir. He squarely posed two questions to Nayar’s chief, the district commissioner, who met him in Lucknow: Why did the district authorities not “take precautions to prevent the planting of the idol in the mosque” and why was the idol “not being removed?” The commissioner conveyed these queries to Nayar whose replies of December 26 and 27, 1949 to Sahay gave him away.

He dishonestly denied that there were grounds for suspecting the forcible takeover though a yajna had been on there for days, maliciously referred to the mosques in Mathura and Varanasi, refused to remove the idols and asked to be relieved if the government so insisted. He admitted that “the installation of the idol in the mosque has certainly been an illegal act.”

But what is more, he formulated a game plan for the government in detail on December 27, 1949. Events since have followed precisely the course which he so shrewdly anticipated knowing the communal atmosphere of the times --- attach the mosque; exclude Muslims completely; allow Hindus certain rights of worship; and let the civil courts decide.

He admitted that “this solution is open to the criticism that it perpetrates an illegal position created by force and subterfuge and that it does not immediately restore the status quo which existed before the illegal act.” But, during the pendency of the civil proceedings, Muslims “could be induced to give up the mosque voluntarily to the Hindus in return for another mosque built for them at no less cost.” The BJP’s line today is based on the perpetuation of what even Nayar conceded was “an illegal position created by force and subterfuge.”  The next stage was reached in 1986.

 A 28 years old local lawyer Umesh Chandra Pandey filed an application on January 25, 1986 in the court of the munsif seeking removal of the restrictions on the puja. It was an application in the civil cases to which he was a party and he did not implead the Muslims who were parties to the suit either. The munsif declined, judiciously enough, to pass orders since the file in the main case of 1961 was in the High Court and orders could be made only in that suit. An appeal was filed on January 31 and heard on February 1, 1986. An application by Mohammed Hashim, who came to know of the proceedings for being impleaded, was rejected. K M Pandey, the district judge of Faizabad, recorded the statements of the district magistrate and the superintendent of police on the issue of law and order and in forty minutes ordered the opening of the locks. He observed, “It is clear that it is not necessary to keep the locks at the gates for the purpose of maintaining law and order or the safety of the idols. This appears to be an unnecessary irritant to the applicant and other members of the community.”

Having refused to hear the Muslim altogether, the judge said, “After having heard the parties it is clear that the members of the other community, namely, the Muslims, are not going to be affected by any stretch of imagination if the locks of the gates were opened and the idols inside the premises are allowed to be seen and worshipped by the pilgrims and devotees. It is undisputed that the premises are presently in the court’s possession and that for the last 35 years Hindus have had an unrestricted right of worship as result of the court’s order of 1950k and 1951. If the Hindus are offering prayers and worshipping the idols, though in a restricted way for the last 35 years, then the heavens are not going to fall if the locks of the gates are removed. The district magistrate has stated before me today that the members of the Muslim community are not allowed to offer any prayers at the disputed site. They are not allowed to go there.” He did not mention that it was due to duress. 

It is pointless to trace the events since the order of February 1, 1986 did not come as a surprise. TV crews were present.

AFTER THE DEMOLITION

Nor was that all. The bench of the Supreme Court which heard the Ayodhya case after the demolition, refused to give an advisory opinion on the the president’s reference about the prior existence of a temple. But it upheld the legality of the acquisition of certain area in Ayodhya Act 1993 by a majority (3-2) headed by Justice J S Verma, and said the Hindus had the right to puja of the idols installed on the site after the demolition. The minority judgement by Justice S P Bharucha pointed out, “Section 7(2) perpetuates the performance of puja on the disputed site. No account is taken of the fact that the structure thereon had been destroyed in a most reprehensible act. The perpetrators of this deed struck not only against a place of worship but at the principles of secularism, democracy and the rule of law…” (White Paper, para 1.35). No account is taken of the fact that there is a dispute in respect of the site on which puja is to be performed; that, as started in the White Paper, until the night of 22-12-1949/23-12-1949, when the idols were placed in the disputed structure, the disputed structure was being used as a mosque, and that Muslim community has a claim to offer namaz thereon.

They added: “When therefore adherents of the religion of the majority of Indian citizens make a claim upon and assail the place of worship of another religion and, by dint of numbers, create conditions that are conducive to public disorder, it is the constitutional obligation of the state to protect that place of worship and to preserve public order, using for the purpose such means and forces of law and order as are required.  It is impermissible under the provisions of the constitution for the state to acquire that place of worship to preserve public order. To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the constitution.”

Thus the crime of December 6, 1992 was sanctified by an act of parliament and condoned by a majority judgement of the Supreme Court. Then, on March 13, 2002, the Supreme Court referred the case to a large bench which will hear it in July 2002. There the matters stand.