People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)


No. 51

December 19, 2010



Sinister Politics Leads to Subversion of Justice


Teesta Setalvad


THE September 30, 2010 verdict in the Babri Masjid-Ramjanmabhoomi case, that began as a dispute over a title suit but escalated into a full blown politico-religious conflict --- one that legitimised the criminal assault on a 450 plus years old mosque and also targeted minority life and property --- has raised serious issues for the future of Indian democracy, given the fact that the verdict was erroneously based on issues of contested faith and disputed histories.


Commemorating the 18th anniversary of December 6, 1992, a unique and well-planned three-day symposium organised in Delhi by the Safdar Hashmi Memorial Trust (SAHMAT), Communalism Combat and Social Scientist brought together academics, jurists and activists from different parts of the country to deliberate upon various aspects and fallouts of the verdict at length. These activists, lawyers, artists and academicians, more than 200 in number, aimed to develop a deeper understanding of all the implications of the Ayodhya verdict. The gathering represented more than four dozen organisations from Karnataka, Maharashtra, Gujarat, Madhya Pradesh and Uttar Pradesh, and also discussed and analysed happenings like the assault on the Baba Boodangiri shrine in Chikmagalur in Karnataka or the divisive hate campaign of Swami Adityanath in Gorakhpur in eastern Uttar Pradesh. The symposium also took stock of various struggles against the communal forces and their depredations.




Over three days, many speakers made the point that the recent Ayodhya judgement is actually an assault on the Indian constitution and the foundations of a secular democratic state. The Ayodhya verdict, moreover, implicitly justifies the 1992 demolition of the Babri Masjid and related criminal acts and, if upheld, it will have serious consequences for the future of our democracy.


Systematic decimation of the basic rational principles of the rule of law as laid down in the Indian constitution, and of historiography, archaeology and logic, are the critical features of the infamous Ayodhya verdict of September 30, said speakers Justice P B Sawant, Justice Hosbet Suresh, Justice S H A Raza and Justice Rajinder Sachar, economist Professor Prabhat Patnaik, and historians Professor Irfan Habib and Professor Shireen Moosvi, during the three-day symposium on Faith and Fact: Democracy after the Ayodhya Verdict that concluded in Delhi on December 8. Elucidating on the social composition of India’s judiciary as also the inability to bring to book the corrupt, casteist and communal among the Indian judges and lawyers, the discussions and analyses at the symposium also highlighted the need to draw attention to the politics of the judiciary.


From December 6 to 8, over three days of intense sessions at the symposium, the issues that were discussed included (1) the consistent failure of the criminal justice system, including non-investigation of the FIR registered on the vandalism of the Babri Masjid on the night of December 23, 1949; (2) the systematic dilution of the criminal cases against the masterminds who instigated the criminal conspiracy behind the demolition of the Babri Masjid in 1992; and (3) the motivated maligning of historians and archaeologists who testified with evidence during the pendency of the Ayodhya  dispute before the Lucknow Bench of the Allahabad High Court. All these were held to be the collective reason for the passage of a verdict that has seriously shaken the faith of the common Indian in the administration of justice.


The deliberate and conscious absence of any substantive mention of the criminal acts of 1949 and 1992 by the two majority judges while dealing with the title suit was, in the words of advocate Anupam Gupta, counsel for the Liberhan commission for over 12 years, the singular injustice in this verdict. The judgement goes into thousands of pages over mythology and faith, but ignores the criminal incursions into the Babri Masjid under law. Even worse, the evidence presented by historians and archaeologists in court was formally recorded in monosyllabic answers to deliberately curtail and hide the explanations that are critical in explaining historical theory and evidence. Today, archaeologists and their publishers face contempt notices served by the Lucknow bench of the Allahabad High Court.


Professor Prabhat Patnaik, who spoke in the inaugural session, outlined the intense need for institutions of democracy to justly adjudicate without being influenced by the politics of power, aggression and violence. The judiciary, especially in a seasoned democracy, needed to stay aloof and distant from the unabashed efforts to influence courts in the deliverance of justice.




Professor Irfan Habib, senior historian from the Aligarh Muslim University and world renowned expert on medieval Indian history, presented a 96 page critique of Justice Agarwal’s 5,000 odd word judgement. The Aligarh Historians Society has printed this critique of the Ayodhya judgement, The Judgement and the Lore of Ramjanmabhoomi­, in a booklet form.


A significant point made in the critique is as below.


Justice Sudhir Agarwal aimed in his judgement to prove that the Babri Masjid was built not during the reign of Babur, in 1528, but only under Aurangzeb (died 1707). Relying on a little known traveller, Fr Joseph Tieffenthale, who visited Ayodhya between 1740 and 1765 AD, and quoting from him about the memory of the mosque being built over a demolished fortress called Ramcot (Tieffenthaler’s words), Justice Agarwal has rubbished the authenticity of the inscriptions over the mosque.


The judge has interpreted the inscriptions as later forgeries made between, say 1760 and 1810, despite the fact that these inscriptions have been accepted and relied upon as genuine by practically every historian and epigraphist until now, and by Fuhrer A S Beveridge and the Epigraphic Indica, Arabic an Persian Supplement, 1965 (an official publication of the Archeological Survey of India).


The judge, in his voluminous judgement, uses harsh words to dismiss this official publication and the evidence brought in there of the inscriptions over the mosque, entitled Inscriptions by Emperor Babur. Dr Z A Desai, the then Superintendent, Persian and Arabic Inscriptions, ASI and a great authority among India’s Arabic and Persian epigraphists, edited this volume.


This inscription remained in position at the entrance of the mosque until December 6, 1992, when the karsevaks carried out their act of demolition; if it does not exist now, it is owing to that criminal act. As to the significance of Tieffenthaler’s not mentioning the inscriptions, it needs stressing that in history negative inferences of this kind are hardly ever given credence. One famous example is of the famous “intellectual giant and linguistic wizard,” Marco Polo’s failure to mention the hugely ancient Great Wall of China during his trials and subsequent writings. Applying the same logic that Justice Sudhir Agarwal has used in his argument, if one is ever asked to decide when the Great Wall was built, one should immediately say --- after Marco Polo’s travels, i.e. after 1300 AD!


Here, Justice Agarwal also overlooks the fact that about 90 years before the Epigraphia Indica, A & P Supplement, 1965, both the gate and the pulpit inscriptions of the Babri Masjid had been mentioned in The Gazetteer of the Province of Oudh, edited by W C Benett, issued as an official publication in 1877-78, Vol I, pp 6-7, Plates 1-2.




“In two places in the Babri Mosque,” it says, “the year in which it was built, 935 H, corresponding with 1528 AD, is carved in stone along with inscriptions dedicated to the glory of the Emperor.” It will be noticed that this is much older than Fuhrer’s reading of the inscriptions, but is quietly ignored in Justice Agarwal’s summary of the reports on the inscriptions (para 1650).


Benett’s statement is confirmed in H R Nevill’s Fyzabad District Gazetteer, with a Preface dated 1905 (volume reprinted, 1920). On page 179 we are told: “The Mosque has two inscriptions, one on the outside and the other on the pulpit and bears the date 935 Hijri.” Of the authenticity of the inscriptions there can be no doubt. Thus two official reports clearly say that the inscriptions on the entrance and the pulpit gave the date 935 Hijri (=1528 AD) and that they belonged to the reign of Babur. One of them goes on to attest their undoubted authenticity.


In reaching the conclusion over the allegedly later construction of the Babri Masjid, Justice Sudhir Agarwal ignores the crucial issues relating to the date of the building such as architectural design and technique of construction. In the critique presented at length by the Aligarh Historians Society, what emerged was not only that a judge of the High Court has based a substantive part of his 5,000 page judgement on a narrow understanding of faith but has, worse, misrepresented historiography and archaeology, especially with relation to Indian medieval history --- a specific target of Hindu communal forces since the early 1900s.


Not only does the judge remark on Babur himself whom he views as a man with “a completely Islamic person and (so?) lacked tolerance to the idol worshippers” (para 1563); his is also a distinctly flawed understanding of medieval Indian history as a whole:


“Another surprising aspect was that the Indian subcontinent was under the attack/invasion by outsiders for almost a thousand or more years in the past and had been continuously looted by them. Massive wealth continuously was driven off from the country” (para 1611). This sentence suggests a rather one-sided view of the history of medieval India. Was India (before the British) ever governed from outside, from a place which wealth was continuously transferred to? Whoever looted, whether Sultans or Rajas, lived within India and, moreover, the wealth stayed within the country.


Dr S Ali Nadeem Rizvi’s erudite presentation on the evolution of mosque architecture over the several hundred years of Mughal rule shows a distinction in the architecture between the times of Babur and Aurangzeb. It can easily be established, by the style and technique employed in a building, whether it was built in the pre-Mughal or early Mughal times or later.




The Babri Masjid was recognisably built in the Sharqi style of architecture (seen noticeably at Jaunpur) with the characteristic form given to the propylon. The domes, though large, are very heavy. This style became obsolete soon after; and well before Aurangzeb’s time, light (even bulbous) domes with free standing minarets became the hallmark of a mosque.


One of the most critical failures of the entire process of litigation undertaken by the High Court was brought out eloquently by eminent historian Dr Shireen Moosvi who pointed out how the process adopted by the court of recording evidence from expert historians and archaeologists had been reduced to a farce. Propositions, often rather complex, of historiography and archaeology need to be answered/explained in a couple of sentences. Yet by insisting that such expert witnesses testified only in monosyllabic “yes” or “no,” the court reduced the business or process of recording expert evidence within the court to a farce.  In Indian criminal law too, each witness has a right by law to record explanations after his/her answer and the High Court’s refusal to allow this basic legal process has subverted the course of justice. Two publications Archaeology after Demolition and Archaeology after Excavation, authored by world renowned archaeologist D Mandal, faced contempt proceedings initiated by the very bench that delivered the Ayodhya verdict. The deliberate act of the higher judiciary in curtailing the academic thought and freedoms of independent historians and archaeologists by using a colonial and archaic Contempt of Court’s Act was evidence, if any was ever needed, of the sinister politics behind the process of subversion of justice in this case.


Whereas Justice Agarwal has high praise in his judgement for the team of ASI officials set up by the BJP driven NDA regime in destroying the valuable portions of the historical Babri Mosque including what survived after the demolition, the judges have failed to go into the politics behind this excavation unleashed by a virulently communal BJP led NDA regime in which the architect of the bloody rath yatra that has been castigated by Justice Liberhan in his report was led by L K Advani who later became India’s home minister and deputy prime minister and Dr Murli Manohar Joshi who later became the minister for human resource development. Far from questioning the politics behind the motivated excavations, the judge reposes full trust in the ASI’s subsequent doctored report that has also not in full form been made available for study by experts. Professor Irfan Habib pointed out that the present government at the centre was complicit in allowing a flawed report of the Archaeological Survey of India (ASI) to stand.




Advocate for the Liberhan commission for  about a dozen years, Anupam Gupta spoke passionately on the history of this litigation that had conspicuously failed to deal with the illegal actions of criminal trespass into the mosque on the night of December 23, 1949 and placement of the Ram Lala idols within --- an action that could not be reversed despite repeated written communications and directives of India’s first prime minister Jawaharlal Nehru to the superintendent of police K K K Nayyar who thereafter joined the Jan Sangh, the precursor of today’s BJP. He was strongly critical of the judgement of Justice Agarwal that could spend over 5,000 pages on the mythological aspects of Lord Ram’s birth but had no space, nor concern for the criminal actions of 1949 and 1992. The FIR for criminal trespass, lodged reluctantly by the SP or by the district magistrate P P Pandey who too later joined the political frenzy for demolition of the mosque, has never been investigated by the law enforcement agencies.


During the much publicised and widely watched karseva on December 6, 1992 that took place in violation of the undertakings made before India’s Supreme Court by the then Uttar Pradesh chief minister Kalyan Singh, interestingly the frenzy displayed by karsevaks under the leadership of L K Advani, Murli Manohar Joshi and Uma Bharati --- that was also celebrated by mediamen Chandan Mitra and Swapan Dasgupta present at the spot --- did not extend to destroying the idols that were placed surreptitiously within the mosque, in 1949. These were carefully removed and brought back to the spot four days later.


Speakers also commented upon the role of the then central government headed by Narasimha Rao. Though the centre had deployed central paramilitary forces on the spot, these stood by and watched as a mob unleashed criminal acts there.


Journalist Manoj Mitra detailed the deliberate dilution of the criminal cases related to the demolition of the Babri Masjid in 1992, especially during the NDA regime. Of the 49 FIRs lodged at the time, 47 related to attacks on journalists. Of the other two, one related to the criminal conspiracy and mob attack on the mosque in which L K Advani and Murli Manohar Joshi had been named as the masterminds, and the second related to the venomous hate speeches delivered before, during and after the act of demolition. During the five years of the NDA regime, the central government deliberately deleted the names of three top leaders of the BJP as master conspirators though they are now arguing that a headless mob had performed the illegal act. Now the two cases are being heard separately, deliberately weakened by partisan interference by the executive.


Interestingly, the Supreme Court has itself not pursued the contempt case against the Bharatiya Janata Party’s national and state level top leadership that consciously and shameless broke their undertakings to the apex court of the country.


A screening of Ram ke Naam with a discussion by filmmaker Anand Patwardhan brought live to the audience the aspects of the narrative that were deliberately made to vanish from public consciousness. The sudden, brutal and unexplained murder of Baba Laldas in 1993 ---the court appointed Mahant of the disputed site after he had openly criticised the politics of the VHP and BJP --- was one of these aspects. Another was the similarly mysterious murder of an IAS officer carrying valuable documents from the Faizabad Collectorate to the Liberhans commission in the late nineties. None of these crimes have been investigated.


Acharya Jugal Kishore Shastri and Magsassay award winner Sandeep Pandey spoke at length on the manner in which democracy, dissent and syncretic worship have been stifled at Ayodhya. The murder of 17 Muslims on December 6, 1992 while the demolition was on has gone uninvestigated, as has the deliberate arson of over 300 Muslim homes and businesses while the Babri Masjid was being brought down in 1992.




Justices P B Sawant retired from the Supreme Court, Justice Hosbet Suresh retired from the Bombay High Court and Justice S H A Raza from the High Court, Allahabad and Lucknow, spoke extensively on the politics within the higher judiciary related to the Babri Masjid dispute as also majoritarian Hindutva politics in general.


A panel that dealt exclusively with the implications of a spate of election petitions emerging from Bombay High Court in the late 1980s elucidated how a bench of the Supreme Court had, in one of these, legitimised the politico-religious movement of Hindutva and deliberately confused it with Hinduism, thereby consciously or unconsciously according judicial weight to the politics of aggressive majoritarianism symbolised by the emergence of the Bharatiya Janata Party (BJP) with over 90 seats in India’s parliament. Election speeches made by Shiv Sena leaders Subhash Desai, Ramesh Prabhu and Manohar Joshi, during state assembly elections, invoking a politically aggressive Hindutva and accompanying these with derogatory statements against India’s religious minorities, had been uniformly held by the Bombay High Court. As we know, these speeches violated sections of the Representation of People’s Act, as they blatantly misused religion for political ends. Unfortunately, however, while upholding the High Court rulings in two of the cases, the Supreme Court legitimised in Manohar Joshi’s case the election of the man who had by then become the Lok Sabha speaker.


Since then, in two cases, Abhiram Singh v/s CD Commachen and Ors and another, the Supreme Court has held that these contentions made in the Hindutva judgement (December 1995) needed to be placed before a five member or seven member Constitution Bench and reassessed. However, the apex court has since not found time to constitute a larger Constitution Bench for these cases.


Advocate B A Desai from Mumbai, who was instrumental in getting one of these cases referred for review before a Constitution Bench, attended the symposium and spoke at length on the distinction between Hindutva and Hinduism.


Teesta Setalvad, co-editor of Communalism Combat, presented her conclusions in a paper titled Hate Speech and Indian Courts. She pointed out how the judiciary in general and the higher judiciary in particular had been markedly lax in developing a sound jurisprudence on hate speech. Offences under Indian criminal law related to sections 153a, 153b, 505 and 295 of the CrPC and related to words and speech, written or oral, meant to foment violence and hatred against sections of the population. In regard to Bal Thackeray’s rantings in Saamna in 1992-93 at the height of the post-Babri Masjid violence, while the Bombay High Court justified the venom used against India’s Muslims on the ground that “the words were against  anti-national Muslims,” the Supreme Court (J B De Souza and Dilip Thakore v/s State of Maharashtra) did not correct the words. Setalvad pointed out how the Supreme Court also ignored a nationwide campaign urging it to review its decision to dismiss the special leave petition backed by 30,000 signatures. Similarly, a campaign by citizens in May 2007 after Varun Gandhi’s venomous speeches made during the Uttar Pradesh state elections, did not make the Election Commission put effective curbs on the candidate. Not only did the candidate win from Pilibhit but neither the political class nor the executive, nor the CEC, nor the judiciary pursed any logical steps to ensure that he or his party paid punitively for the hate and venom used by him during elections in 2007.


In the S R Bommai v/s Union of India case that dealt with the dismissal of the BJP governments by the centre following the demolition of the Babri Masjid on December 6, 1992 and nationwide violence against minorities, a landmark judgement passed by a larger, nine member bench of the Supreme Court (based on Justices Pandian, Ahmadi, Kuldip Singh, J S Verma, P B Sawant, K Ramaswamy, S C Agarwal, Yogeshwar Dayal and Jeevan Reddy) had in 1994 had held secularism to be the basic and inalienable feature of the Indian constitution. However, this judicial landmark was ignored by the Hindutva judgement passed a year later in 1995.




Participation of vibrant panels from the states of Karnataka, Madhya Pradesh, Gujarat, Maharashtra and Uttar Pradesh gave grassroots level insights into the fallout of the politics of faith since the late 1980s and early 1990s.


The serious contestation over the Baba Boodangiri shrine in Chikmagalur district of Karnataka has been averted by a vibrant movement of the Karnataka Communal Harmony Forum (Karnataka Koumu Souharda Vedike) since 1998. A decade after mass mobilisations in the district to contest the violent mobilisation by the BJP and rest of the Sangh Parivar, the Veddike and Citizens for Justice and Peace moved the Supreme Court against the illegal actions at the local level. Though the Supreme Court granted a stay on these acts, subsequent moves by the government of Karnataka and the Collectorate of the district where the shrine is located, amounted to contempt of court but the Supreme Court has not seriously or severely commented upon them.


This and other matters, filed under the Places of Worship Act 1991, have failed to evolve a robust jurisprudence with the reluctance of the higher judiciary to curb and censure criminal and illegal acts. Teesta Setalvad pointed out how, in May 2003, Communalism Combat had reproduced a list of 30,000 temples the Bharatiya Janata Party and Vishwa Hindu Parishad (VHP) had listed and mentioned for illegally seizing them, though they are at present minority or syncretic places of worship. In Varanasi, on December 29, 2002, BJP MP Vinay Katiyar, who built his political career through the Bajrang Dal, demanded that Muslims must hand over the Kashi and Mathura mosques to the VHP-Bajrang Dal. Thereafter, on March 1, 2003 and again on March 10, 2003, Praveen Togadia, international general secretary of the VHP, repeated the threat still more venomously in Bhadohi, Uttar Pradesh. The RSS too, through its spokesman M S Vaidya, declared its full support to the VHP plan to “free” the Kashi and Mathura shrines. Renowned historian K M Shrimali has elaborated how the Baba Ramdev shrine in Rajasthan has been taken over by right wing majoritarian politico-religious groups. Setalvad pointed out how the Piarana Dargah in Gujarat is in a similar way the target of communal forces.


A vibrant citizens’ initiative from the minority community since 2005 has managed to curtail the hate speech of Swami Adityanath in Gorakhpur. Advocate Assad Hayat and Parvez Parvaaz spoke about their successful efforts to get the judicial order of registration of an FIR against the virulent godman who had to rush to the Supreme Court for a stay order.


The intellectually stimulating and rich discussions over three days covered professional historiography, archaeology, activism, legal and judicial precepts, and the rule of law. The real motive and intent behind the politics of the Ramjanmabhoomi movement was not for a temple in the name of Lord Ram, but to misuse the language and discourse of faith to politically mould the country academically and otherwise into a majoritarian state.