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Mainstream, Vol XLVIII, No 43, October 16, 2010

Retrograde Verdict Rewards Hindutva Zealots

Tuesday 19 October 2010, by Anand Teltumbde

The much awaited Ayodhya verdict pronounced by three judges of the Lucknow Bench of the Allahabad High Court on September 30, 2010 stunned the entire progressive establish-ment of the country. All the three independent versions of the judges converged in relying on the faith and belief of the Hindus forsaking the established principles of law, and vindicated the stand of the Hindutva movement which brought about the destruction of the Babri Masjid. As a compromise solution, again sans any principle of law, the verdict divided the disputed plot of land into three equal parts and awarded them to the three contending parties. By allotting the most prized piece of land on which the central dome of the Masjid stood to the Hindutva forces that avowed to build their Ram Lalla temple there in defiance of law, it has rewarded the criminals with what they just dreamt of but never thought to be as easy. In the process, it has breached the sacred social contract the Constitution represented to all the minorities.

Landmark Retrogression

The parallel may not be palatable to everyone but this verdict may be compared with a case that was the one decided some eight decades ago in a small colonial court of Mahad in Maharashtra. As it has great implication for our secular fabric, the Mahad judgement had pivoted the future of a nascent movement launched by the Untouchables for securing their civil rights. The case was filed by the orthodox Hindus of Mahad to block the move of the Untouchables to perform Satyagraha at the Chavadar Tank in Mahad in December 1927 with the contention that the tank was their private property and hence the Untouchables could not trespass it. The court of the sub-judge of Mahad granted them temporary injunction on the eve of the proposed Satyagraha. Although the Satyagraha was therefore suspended, the case was zealously fought by none other than Dr Ambedkar, and won. Just imagine if the court had relied on the faith and belief of the majority Hindus as the Allahabad HC judges did, what would have been the fate of the case and consequently that of the entire social reform movement in India? Surely, the faith and belief of the Hindus would have certainly considered the Chavadar tank as theirs to keep the Untouchables away in the first quarter of the last century.

Those were the colonial times when it was apparently in the strategic interests of the rulers to promote the caste and communal divide. Eight decades ago they could easily take shelter under respecting faith and belief of the people to manipulate communal passion. They certainly did it but subtly. They did not permit their institutions to lose their prestige for their shortsighted gains. It is therefore that the Mahad court could deliver justice in favour of the Untouchables. Nearly a century later, in independent India swearing by so many lofty ideals in its Constitution and aspiring to be a global superpower, we have gone back to the faith and belief of the Hindus to decide the most important aspect of our national character, secularism, which verily constitutes the premise of our nationhood. On many other aspects too, this verdict has put us into reverse gear. Just imagine, if the courts were to take the faith and belief of the Hindus for deciding cases, decadent customs like sati, child marriage, untouchability, caste atrocities etc. would all get validated and perhaps the Manusmriti would replace our Constitution! This verdict needs to be read in this perspective and seen in its perilous potential to the very foundation of our country.

Complicating a Simple Case

As such, it was a simple case of deciding property right over the disputed land around the spot on which the Babri Masjid once stood. In the absence of the clear title deed to the contrary, the Court had to go by the physical evidence that the Masjid existed there. There is a principle of possessory provision in the law which entitles land title to those who have uninterrupted and unchallenged possession of an area for twelve years or more. Surprisingly, the Court dismissed the case of the Waqf Board and the Nirmohi Akhara claiming titles to the Inner Courtyard (where the Babri Masjid stood) and Outer Courtyard (where the Ram Chabutara was located) respectively. It was indisputable that the Masjid stood at the spot uninterrupted, from 1528 until 1949 (when the namaz was last performed there) and also the Nirmohi Akhara’s Ram Chabutara where puja, bhajan-kirtans were performed uninterrupted since the 19th century. As regards the claim to the area under the central dome as the birthplace of Ram Lalla, a five-judge Bench of the Supreme Court had already ruled in 1994 that it was incapable of legal determination while responding to the Presidential Reference sent to it after the demolition of the Babri Masjid. There was thus a legal position of the highest Court of the land to guide the three judges of the Allahabad High Court on that issue.

But the learned judges chose to seek archeo-logical evidence to see whether there existed a Hindu temple as contended by the Hindus. How was it relevant? Even if archeology came out with an evidence to show that there was indeed something like a Hindu temple, can it be construed that the land belonged to the contending Hindus? It only proved that before the mosque was built, there existed a Hindu temple and nothing more. There is no way to find out the property transaction that took place while constructing a Masjid there. But our court has seen what even archeology could not see. The Archeological Survey under the then NDA Government led by the BJP, which spearheaded the Ram temple movement, came out with the finding that there existed a place of worship at the place where the mosque stood. This evidence was also not incontrovertible, having been widely disputed by experts. But did it prove whose place of worship it was? It could well have been a Buddhist or a Jain temple? Even assuming it was a Hindu place of worship, could it be proved that it was a Ram temple and beyond that it was a place where Ram was actually born? However, the judges transcended all boundaries of reason and tended to accept the spot under the central dome as the birthplace of Ram.

It is not uncommon in countries like India having old civilisation to get some remains of old structures beneath the existing ones. As a matter of fact, India does not have even archeological evidence for its claim of being an old civilisation except for Mohenjodaro and Harappa. The next living evidence after a dark period of a millennium-and-a-half that one gets belongs to the Buddhist period which extended well until the ninth century. It is during this period, historians tell us, that entire India was dotted with Buddhist viharas, monasteries, and Buddha idols. Very little of that is seen today, thanks to the ‘religious tolerance’ of Hindus and initial anti-but (but for idol in Islam is said to have come from Buddha) attacks of the invading Muslim hordes. It is a known fact that Buddhism was decimated in the land of its birth mainly by Hindus, who usurped most of the Buddhist viharas to build their temples in medieval times. If the mosques were built at the site where temples stood, it is equally true that the temples were built at the site where the Buddhist viharas stood. Incidentally, when the Babri Masjid contention was hot, such a claim was feebly proffered on behalf of the Buddhists by the late Dr Savita Ambedkar, the widow of Dr Ambedkar. Indeed, if the Court is inclined to go into archeology, it will have to logically take cognisance of such a claim of the Buddhists for the simple reason that Ayodhya figures more in the Buddhist (and also Jain) literature as an important religious place than in any of the Hindu texts as the birthplace of Ram. Not even the Ramcharitmanas of Tulsidas, written in the 16th century in the same province, has any mention of Ayodhya being the birthplace of Ram. In fact there is no incontrovertible evidence of Ram being a historical personality. The mythology takes him back to over 17 lakh years and the pseudo-science of the Hindutva ilk to 7000 odd years. And still the judges have gone to establish the exact spot under the central dome of the destroyed Babri Masjid!

Makeover of Faith to Political Intrigue

Indeed, there is something very weird about the Ayodhya judgement and even the reactions it evoked. The judgement forsook the principle of hard facts and reasoning in taking cognisance of a nebulous notion such as faith and belief. Interestingly, this issue was actually better settled by the court 125 years ago. Historicity of the dispute between Hindus and Muslims over the Babri Masjid goes back to 1853, when Wajid Ali Shah was still the Nawab of Awadh. Soon thereafter the Sepoy Mutiny of 1857 took place and consequent thereto a shift in the British policy not to interfere with the matters of faith and customs of Indians. Later, in 1885, Raghubar Das, a mahant of the janmasthan samiti, went to court seeking permission to build a temple on the Ram Chabutara (not the Masjid), believed to be the birthplace of Lord Ram. The Faizabad sub-judge Pandit Hari Kishan declined permission stating that although the Chabutara land belonged to plaintiff Raghubar Das, it was so close to the existing Masjid that it would be contrary to public policy to grant a decree authorising him to build a temple. Das went to appeal to the Faizabad district judge, Col J.E.A. Chambier, who also dismissed the appeal on the same grounds. In his judgement dated March 17, 1886, he struck down the part of the sub-judge’s verdict which conceded the property to Das. He ordered status quo ante stating that a 356-year-old act cannot be undone although it was unfortunate to have a Masjid built on the land specially held sacred by the Hindus. Das took the matter to Oudh Judicial Commissioner W. Young who also rejected his plea in his order of November 1, 1886. A serious clash occurred in 1934 in the precincts of the Babri Masjid, in which the structure suffered some damage. It was repaired by the British Government, by recovering its cost from the Hindus as a punitive fine.

The dispute during those days perhaps could be construed as religious and even then it was resolved appropriately by the courts based on hard facts. Its revival just after independence was purely political. It started when the idols of Lord Ram was placed inside the Masjid in the night of December 22 and 23, 1949 by some miscreants in the frenzied communal context of those times. Hundreds of Hindus gathered there to offer prayers, although the premises were locked. Prime Minister Jawaharlal Nehru and Home Minister Vallabhbhai Patel had directed the then Chief Minister, Govind Ballabh Pant, to remove the idols but it was not done. The District Magistrate, K.K. Nair, who had later fought an election on a Jan Sangh ticket expressed his inability to comply. A civil suit was filed on January 16, 1950 in the court of the civil judge, Faizabad, who granted an interim injunction against removal of the idols and allowed puja and darshan. It was a strange order not restoring status quo ante but a status quo after the illegal act was committed. A series of strange acts followed culminating into a District Judge of Faizabad pronouncing that there would not be any law and order problem if the locks were removed. The SSP and DM both gave the statement about their confidence in being able to maintain law and order, without approval of the State and Central governments. As everybody knew, it was Rajiv Gandhi who had prompted the locks of Ram Janmabhumi-Babri Masjid opened for darshan and puja to woo the Hindus. The unfolding communal situation was unscrupulously exploited by the Hindutva forces for consolidating Hindu votes, which culminated in the destruction of a historical structure and countrywide mayhem devouring thousands of lives.

Verdict or a Political Statement

By transcending the boundaries of law the verdict makes more of a political statement than a judicial pronouncement. It has validated the evil politics of the Hindutva forces by accepting that it was the “place of birth of Lord Ram as per faith and belief of the Hindus”, as Justice Agrawal wrote and “The disputed site is the birthplace of Lord Ram … Hindus have been worshipping the place…and visiting as a sacred place of pilgrimage since time immemorial”, as Justice Dharam Veer Sharma wrote. Advani could not hide his glee when he said: “It has affirmed the right of Hindus to build a temple at the sanctum sanctorum.” The main slogan of the Hindu zealots, “mandir wahi banayenge” (we will build the temple at the same spot), has been reinforced by the verdict, vindicating their stand that it was the birthplace of Ram. The least that could have been done by the judges to keep a semblance of justice was to grant the Babri mosque site to the Muslims. It is futile to say, as Chidambaram observed, that it has nothing to do with the act of demolition of the Babri Masjid on December 6, 1992. Once this judgement validated the basic claim of the vandals that the Masjid was an illegitimate structure built after destruction of the Ram temple, the criminal case gets automatically weakened. The award of the title of the desired land to them accorded moral justification to the vandals’ act in retrospect. Even without this judgement, it was inconceivable that someone like Advani would be convicted for the vandals’ act. With the judgement, all those provocations of Advani and the party that led the frenzied mob to raze the domes to the ground get transformed into quasi-truth.

As for the Muslims, it embodies a far graver political lesson: if they wish to live in the country, they will have to abide by the wishes of the communal majority. The verdict clears the way for a number of Masjids to be overtaken by the Hindutva forces just because they believe they were built on lands held sacred by them. Their slogan, “yeh to sirf jhanki hai, Kashi, Mathura baki hai” [this (Ayodhya) is just a sample, Kashi and Mathura are in balance] has been brought so close to realisation by the verdict. In fact, it should theoretically apply to any and all Masjids and rather most Muslim places (for example, Baba Budengiri in Karnataka, Haji Malang in Maharashtra) in the country. Certainly, there is a widespread belief among Hindus that all the Masjids were actually their sacred places. Even Taj Mahal, if one goes by the pseudo-history of P.N. Oak, will have to be demolished because it is constructed on a Shiva temple. If the state is willing to create spaces, the vested interests are there to fabricate any amount of faith and belief in gullible Indians. One shudders at the thought of our secularism. The calm of the Muslims is not to be construed as their acquiescence with the verdict; they have been truly dumbfounded by the realisation of their status in the country.

Dishonest Defence

The judgement is falsely defended by some as reconciliatory. It does not reconcile anything, when it openly gives to the Hindus what even they themselves could not expect. The fact that there was no adverse reaction to the judgement from people anywhere is no proof that it was accepted by all. In any case only the Hindutva forces have been the trouble-mongers; Muslims just expected a fair deal from the court. They had kept calm when someone installed a Ram idol right at the centre of their Masjid; they maintained it when the locks were put around the idol and later opened allowing the Hindus to perform puja in their Masjid; they preserved it even when they were communally abused all over the country during Advani’s rath yatra; they controlled it when it was demolished by the frenzied mob and rather suffered in its aftermath. The Babri Masjid, as it were, was more important to the Hindutva zealots than ever to the Muslims. They were hurt not as much by the loss of the Masjid as by the breach of trust by the Indian state. Still they reposed faith in the Indian judiciary but now feel betrayed even there. The Muslims are in no position to take combative posture and are trying to display magnanimity even to the extent of deciding not to appeal to the Supreme Court or to help Hindus build the Ram temple at the allotted site. Actually, Mohammed Hashim Ansari, a nonagenarian leader of the Sunni Waqf Board, proposed negotiated settlement with Mahant Gyan Das, who as the head of Ayodhya’s Hanuman Garhi temple and the Akhara Parishad, is said to have good influence over the Nirmohi Akhara. The only hurdle they both perceive is with the Ram Lallawallahs, supported by the Hindutva gang.

It is the Hindus, particularly Ram Lallawalahs, who are belligerent and want to appeal to the Supreme Court. There was no question of any mischief this time for several reasons: one, the state did not want it because of the Commonwealth Games among others, and the Hindutva forces had lost their steam to recreate the mass frenzy they did in 1990s. Even in their heydays, as many political observers would agree, the Hindutva forces would not have been as successful as they did without the tacit support of the state. This time the political equations were not the same. In order to keep the issue alive, the Hindutva forces will certainly go for an appeal. Probably all the parties would. The dispute would take another ten years and until then the site would be a veritable minefield ready to explode any time. The government will have to cordon off the area with heavy security and consequent inconvenience to the local population. Therefore in practical terms the judgement would not serve even the purpose of paving the way for reconciliation as some commentators imagined. Chidambaram is right when he termed the judgement as “not operational”.

According to Advani, the judgment “will mark the start of a new chapter for national unity”. By now everybody knows the Hindutva definition of ‘national unity’. It means that if the non-Hindus wish to live in India, they will have to live as per the terms of the Hindu majority.

One hopes the Supreme Court intervenes and restores the constitutional vision of India, distorted by the Ayodhya verdict.

Dr Anand Teltumbde is a writer, political analyst and civil rights activist with the Committee for the Protection of Democratic Rights (CPDR), Mumbai. He can be contacted at tanandraj@gmail.com

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