People's Democracy
(Weekly Organ of the Communist Party of India (Marxist)
No.
42
October 17, 2010
|
Vol. XXXIV
No.
42 October 17, 2010 |
Ayodhya Judgement of the
Triumph For the Violators
of Law
Irfan Habib
A dramatic verdict was
immediately
delivered on the judgements of the Ayodhya Bench of the Allahabad High
Court on
September 30, 2010, when ahead of the release of their summaries at the
official centre at Lucknow set up for the purpose, lawyers of the
“Hindu”
parties rushed in waving victory-signs and seizing the official
microphones to
announce how the Bench had rejected the opposite party’s case and
restored lord
Rama to his true birth-place. It only
remained, said one of them, for the Muslims to give up the small share
of land
still left to them, to win reconciliation from the victors.
As the summaries and
excerpts from
the three separate judgements came in on the TV channels and the
justifications
for the operational part were analysed, nearly all serious observers
were
struck by the “astonishingly one-sided” nature of the decision, as one
senior
advocate of the Supreme Court immediately put it.
OBFUSCATING
NATURE OF
DISPUTE
The first and foremost
matter of
concern was the way the High Court has decided to handle what is
essentially a
property dispute. All the three judges have admitted that the idols
were
brought into the Babri Masjid, Ayodhya, on the night of December 22-23,
1949. Thereafter Muslims were denied entry
into the Masjid by administrative orders and court injunctions — by
virtue of
which alone no property rights can be created. The essential point for
the High
Court should therefore have been to establish the facts of occupancy
and
possession as they were immediately preceding the incident of December
22-23, 1949
and so to adjudicate between the claims of the Sunni Wakf Board and the
Nirmohi
Akhara, the only possible title-holders.
The High Court has,
however,
relegated this essential issue to a very subordinate position and in
all the
judgements (especially those of judges Agrawal and Sharma) have treated
the
issue of Hindu faith in the exact birth-place (or rather birth-site) of
lord
Rama as the main decisive point.
And on this point their
conclusion is
definite: By Hindu faith lord Rama was born at the exact
site where the idols are now placed — ie, under the erstwhile
central dome of the Babri Masjid. Here, for one thing, they have
lamentably
failed to make what should be an elementary distinction, one between
faith and
propaganda. The general Hindu belief undoubtedly is that Ayodhya is the
birth place
of lord Rama; this is all that even Tulsidas in his Ramacharitmanas
has to tell us. There is no proof at all that even
in local lore until very recent times, lord Rama’s birth site was held
to be at
the spot of the Babri Masjid.
PLANTED
INSCRIPTION
The Hindu Vishwa Parishad
trumpeted the
find of a Sanskrit inscription allegedly found by its karsevaks in the
debris
of Babri Masjid when they were forcibly demolishing it on
December 6, 1992. This twelfth century
inscription refers to a ‘Vishnu-Hari’ temple constructed by a local
ruler, Ananyachandra,
and the VHP presented this before the court as evidence of an earlier Ramjanmabhumi temple at the site. But the
inscription nowhere refers to the site as lord Rama’s janmabhumi;
it merely claims for the builder’s family the position
of janmabhumi of valour! This was
made clear by Dr K V Ramesh, former director (Epigraphy), ASI, and the
VHP’s
own witness before the court; and this rendering has also been given
independently by Dr Pushpa Prasad, in a paper published in the Indian
History
Congress Proceedings, sixty-fourth session (2003). There is a legal
rule that a
party cannot question its own evidence: so, if this inscription was
really
found at the site, as the VHP claimed, this showed conclusively that,
on its
own showing, the temple builders nine hundred years ago (what to speak
of time
immemorial) were blissfully unaware that the site was lord Rama’s
birth-place.
(In fact, however, the inscription is a plant, the corresponding
Furthermore, it was shown
in detail
by Professor R S Sharma and his colleagues in their ‘Report to the
Nation on
Ramjanmabhumi-Babri Masjid’ (1991) that the place of Janmasthana as
given in
the ‘Ayodhya Mahatmya’ section of the Skanda
Purana compiled in the sixteenth century or later does not at all
suit the
environs of Babri Masjid. In fact, it is placed by that authoritative
text somewhere
between Renamochana and Brahmakunda on the bank of the Sarayu. When on
January 29,
1885 Mahant Raghubar Das brought a suit against the secretary of state
(ie, the
government), he merely sought to be allowed to build a small temple
over the chabutra which alone was claimed to be
the “Janam Asthan”. This was already in his control, and was stated to
be no
more than 21 by 17 feet in area, and situated outside the main
courtyard of the
Mosque. No claim at all was made on any part of the internal courtyard
of the
Masjid, let alone the part covered by its domes, to be part of the janmasthan.
RECENT
ORIGIN
OF THE CLAIM
The claim began to be made
locally
only after the riots of 1934, and especially after the night of
December 22-23,
1949 when the idols were forcibly taken into the mosque and installed
under the
central dome. All the three judges acknowledge the fact of the forcible
installation, but seemingly condone it as an act of faith. From the 1980’s onwards the VHP and RSS launched
a nation-wide campaign to spread the claim that lord Rama’s birth-site
was
inside the Babri mosque, just where the idols had been forcibly
installed. What
was believed in by a few local enthusiasts was now through well-funded,
well-organised propaganda, made into an article of faith for the true
VHP believer. The
By accepting this
deliberate
‘invention of tradition’ for capturing a mosque, the High Court has
overlooked,
of course, the other Hindu belief, far stronger and far more ancient,
the
belief in the benevolence and justice of lord Rama. Not only that, it
has converted
lord Rama into a juridical entity, a mere petitioner before itself,
patently in
order to legitimise the claims of VHP to act in the name of Bhagwan Sri
Ram
Virajman, and under that colour seek possession of the Babri Masjid
site. The
VHP- sponsored body filed a suit for the purpose only in 1989. In an ordinary case not only would this have
been time-barred, but, since unlike the Nirmohi Akhara, the VHP had had
no
connection with either the idols nor with any part of the disputed land
on
which the idols had been worshipped before 1949, its claims to be a
party in
the suit should have been thrown out. But by a simple recognition of
Ram Lala
as a juridical entity, a baseless claim has been legally sanctified.
It is difficult to see how
the court’s
conferment of a juridical entity on a supernatural power can be
regarded as
consistent with our secular constitution. It is vain to cite the Privy
Council’s assertion (in the Shahidganj Mosque case) of the superior
position enjoyed
by a temple-deity over a God-dedicated mosque, since that decision is
in
obvious conflict with Articles 15, 25 and 26 of our constitution and
with the
nature of our State as a secular republic (which the British Empire was
not). At best one may say that
temple-endowments
existing at the time of the promulgation of the constitution (January
26, 1950)
may continue to enjoy that privilege. But can the courts confer such
privilege
now upon a trust or endowment which did not exist at that time nor when
the preamble
of the constitution was amended (effective January 3, 1977) to
incorporate the
word “secular” in it?
The judges do not seem to
have
noticed that Mahatma Gandhi, the father of this nation, had a different
vision
of lord Rama than a petitioner seeking less than three acres of land
from the
High Court. His Ram, let it not be forgotten, was a universal God, so
well
defined in Gandhiji’s own Ramdhun: “Thy
name is Ishwar as well as Allah; Let the lord give enlightenment to
all”.
HISTORY
&
ARCHAEOLOGY
The High Court has also
taken on
itself to pronounce on matters of history and archaeology in order to
question
the very bonafides of the Babri
Masjid, based on whether it was built on vacant land or immediately
after
demolishing a temple; and here too the judges’ conclusions are
peculiar. Two of
the three judges have dismissed the evidence of the builder’s Persian
inscriptions in the Masjid, the most primary evidence under all canons
of
historical enquiry. These make it clear that the mosque was built by
Mir Baqi, Babur’s
commandant at Awadh (Ayodhya), in 1528, and do not refer to any
destruction of
a temple, which would surely have been mentioned if the builder had
done it for
purposes of glorification of his faith. As for the archaeological
evidence for
a temple beneath the mosque, the judges have accepted in
toto the report drawn up by two little-known officials (Hari
Manjhi and B R Mani) for the Archaeological Survey of India, an agency
of the then
BJP government, whose ministers were all the time proclaiming their
commitment
to the Ramjanmabhoomi movement.
All the grossly motivated
misrepresentations and omissions of this report have been duly pointed
out by a
number of established archaeologists, many of whom appeared as
witnesses before
the court, but this appears to have made no impression upon the present
Bench. Instead of fairly examining the
substance of
the objections, justice Sudhir Agrawal has found it fit to question the
competence of these archaeologists whose reputation incidentally does
not need
any judicial sanction. On the other hand, the court has not considered
the
question whether under the BJP government any ASI officials, looking
for
promotion, could really be independent; nor did it look into their
status or standing
as archaeologists.
The court itself needs to
justify an
excavation, for which all the remaining vestiges of Babri Masjid, a
450-year
old monument that should have been protected and preserved, have now
been
totally destroyed. As the SAHMAT statement, issued after the present
judgement,
has pointed out, what the ASI itself could not deny finding under the
dug-up
Masjid floor, namely, “the presence of animal bones throughout as well
as the
use of surkhi and lime mortar and
glazed ware (all characteristic of Muslim presence), rule out the
possibility
of a Hindu temple having been there beneath the mosque.” The
pillar-less
“pillar bases” have been shown by their nature, alignment and levels to
be mere
figments of imagination, so that there is not the slightest evidence of
a
temple on the spot, whether “huge” (as ASI would have it) or small. A
reader
who wishes to pursue the fantasies that Manjhi and Mani (the latter now
a joint
director-general, ASI, duly promoted) put in their report, apparently
given
Biblical status by the High Court, may
pursue the tale in Shereen Ratnagar and D Mandal, Ayodhya
Archaeology after Excavation (2007), where many of the
ASI’s large and little fabrications have been nailed down.
LEGITIMISING
DEMOLITION
There is, finally, the
question that is,
perhaps, the most serious of all: The High Court’s easy acqueisance in
the
results brought about by manifestly criminal acts. The forcible
trespass of
1949 when the images were placed under the central dome of the mosque,
the
closure of the mosque to Muslims thereafter, by fiat of administration
and
courts, the destruction of the Mosque by mobs of karsevaks
under the aegis of the VHP and Advani & Co on
December 6, 1992 — in defiance, let it be recorded, of the orders of
the
Supreme Court itself — are all acts that have called forth no censure
from this
Bench. As T R
Andhyarujina, a former solicitor-general of India, has pointed out (The Hindu,
October 3, 2010), the court has entirely ignored the “elementary rule
of
justice…. that when a party to a litigation takes the law into its own
hands
and alters the existing state of affairs to its advantage (as the
demolition in
1992 did in favour of the Hindu plaintiffs), the court would first
order the
restitution of the pre-existing state of affairs.” He further noted
that “the
absence of any condemnation of the demolition of the Babri Masjid on
December
6, 1992 is a conspicuous aspect of the Ayodhya verdict of the Allahabad
High
Court.”
Indeed, the court, while
recognising
that the idols were placed inside the Mosque under the central dome
only in
1949 has given full legitimacy to that act by insisting that the idols
would
remain there and that the particular part of the ground must go to the
VHP-sponsored
trust. The entire demolition of the Masjid has in effect been treated
by the court
as an advantageous deed for creating the conditions necessary for its
decision
to transfer two-thirds of the disputed land in equal shares to the VHP
and the
Nirmohi Akhara. This, Andhyarujina points out, would not have been
possible had
the Masjid structure remained in existence and not made into levelled
vacant
ground. What else can one say of it all except that it is an absolute
legitimation granted by the Allahabad High Court to the 1992 Babri
Masjid demolition? Perhaps, the High
Court’s Judges did not care
to read the Supreme Court’s own judgement of 1994 where the demolition
was
described as “an act of national shame”.
Some well-intentioned
persons are now
speaking of the need to shift focus from further litigation (ie, appeal
to the Supreme
Court) to a negotiated settlement between the Hindu and Muslim bodies
concerned. They seem to forget that there is a third party too, an
entity identified
in the constitution (not just by any court): the People of India, who
gave to
us our constitution, that enjoins us in its very preamble to safeguard
the
cause of justice, liberty, equality and fraternity and to keep
