A day before the 25th anniversary of the demolition of the Babri Masjid, the Supreme Court fixed 8 February, 2018 to hear on a day-to-day basis the final argument in the Ram Janmabhoomi-Babri Masjid dispute, better known as the Ayodhya matters. Prior to fixing the date, the Supreme Court rejected the plea of the Sunni Waqf Board’s counsel, Kapil Sibal, to hear the matter after the 2019 Lok Sabha elections.
Underlying Sibal’s plea was his apprehension that the Supreme Court’s judgment in the Ayodhya dispute could be exploited to set the election agenda for 2019. Regardless of whether his fear is justified, a reading of the legal history of the dispute illustrates vividly how the Babri Masjid was converted into a temple over a century and more, often because of judicial pronouncements.
Whether these pronouncements were legally right or wrong will be known once the Supreme Court decides who holds the title to the spot where once the Babri Masjid and now a makeshift temple, having the idol of Ram Lalla and other deities, functions.
The conflict of 1855
The legal history of the dispute is linked to the claims that a general of the Mughal emperor Babur demolished a temple, located at the spot where Lord Ram is believed to have been born, to construct the Babri Masjid. There is no documentary evidence to back these claims. The general’s alleged depredation constitutes Ayodhya’s popular memory, reinforced further because of entries in the District Gazetteer and assertions that judges made in court cases without quoting sources.
It led to a jumbling up of events and dates. For instance, it is claimed that there erupted armed clashes between Hindus and Muslims over the Babri Masjid in 1855. However, historian KM Panikkar in a chapter (A Historical Overview) in the book Anatomy of a Confrontation: Ayodhya and the Rise of Communal Politics in India, points out that the 1855 clash was over the Hanumangarhi temple.
A Muslim party claimed that the Hanumangarhi temple had been built over a mosque and organised a raid in 1855 to occupy its premises. The raiders were beaten back, some killed, and others chased to the Babri Masjid where they took refuge. However, the victorious Hindus did not make claims to the Babri Masjid. This suggests that the mosque had not yet become contentious in Ayodhya’s local memory.
The Nawab of Oudh instituted a committee of inquiry into the conflict of 1855. The inquiry concluded that the Hanumangarhi temple hadn’t been built over a mosque. However, to mollify Muslims, the Nawab toyed with the idea of constructing a mosque adjacent to the Hanumangarhi temple. It perhaps prompted the construction of a parallel story around the Babri Masjid.
“It originated,” Panikkar says, “most probably, as an attempt to checkmate the Muslim claim on the Hanumangarhi temple.” It was probably conceived as a measure to mount counter-pressure on Muslims if they dared to revive their agitation over the Hanumangarhi temple.
A few years after the revolt of 1857, the Mahant of Hanumangarhi built a chabutra or raised platform near the Babri Masjid. A complaint regarding the appropriation was made to the magistrate by the then muezzin of the Babri Masjid. In 1861, the district administration is said to have built a wall to separate the mosque from the chabutra.
In 1883, mahant Raghubar Das started to build a temple over the chabutra, but the District Magistrate, because of the objections of Muslims, stopped it. It led to Raghubar Das filing a suit in 1885 in the court of Sub Judge, Faizabad, claiming that as the owner of the chabutra he should be allowed to build a temple there.
The judgements of 1885-86
Sub Judge Pandit Hari Kishan referred to the 1855 clashes to say a boundary wall had been constructed between the chabutra and mosque. He was relying on the local memory which had connected two unrelated episodes. It had Kishan to assert that the "place (chabutra) where the Hindus worship is in their possession and their ownership cannot be questioned and around it there is the wall of the mosque and the word Allah is inscribed on it.”
But the sub judge denied permission to Das to build a temple. His reasoning was, "If a temple is constructed on the chabutra at such a place then there will be sound of bells of the temple and shankh (conch shells) when both Hindus and Muslims pass from the same way, and if permission is given to Hindus for constructing temple then one day or the other criminal cases will be started and thousands of people will be killed."
Das went in appeal to District Judge Col F.E.A Chamier. He upheld the verdict of the sub judge in March 1886, but cancelled his observation that the ownership of the chabutra vested in Das and Hindus. Chamier, however, observed: “It is most unfortunate that a masjid should have been built on land specially held sacred by the Hindus, but as that event occurred 356 years ago it is too late to remedy the grievance."
At least until 1886, it was the chabutra, and not the spot under the central dome of the Babri Masjid, which was believed to be Lord Ram’s birthplace. This is evident from what Chamier said, “The chabutra is said to indicate the birthplace of Ram Chandra.”
The indefatigable mahant then went in appeal to the Court of Judicial Commissioner, Oudh, not only to build a temple over the chabutra, but to also get Chamier’s ruling that he wasn’t the owner of the chabutra, cancelled. Judicial commissioner W Young on 1 November, 1886 said that the Hindus wanted to create a "new temple" over the "holy spot" that was said to be "birthplace of Sri Ram Chandra."
Young then went on to observe, “Now this spot is situated within the precinct of the grounds surrounding a mosque erected some 350 years ago owing to the bigotry and tyranny of the Emperor Babur, who purposely chose this holy spot, according to Hindu legend, as the site of his mosque.”
A legend, we all know, is a story popularly thought to be historical, but cannot be verified. It was typically the style of British officials to harp on unverifiable stories to create a Hindu-Muslim divide in colonial India, of which the legend of Padmavati was an example.
Young said the Hindus had been persistently trying to increase their rights to the property and to “erect buildings on two spots in the enclosure: (1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi.” But the executive authorities, he said, had been right in forbidding any “alteration of the status quo.” He upheld Chamier’s verdict, including that Das wasn’t the owner of the chabutra.
The Babri Masjid was next in news in 1934, because of a riot over cow-slaughter in a village near Ayodhya. Enraged Hindus damaged the Babri Masjid, which was subsequently repaired at the British government’s expense. In March 1946, the mosque was declared a Sunni mosque after an inquiry ordered by the Commissioner of Waqfs.
December 1949: A winter of joy and discontent
It was the year in which the communal polarisation created an ambience conducive to hatching conspiracies. Anyone who thinks the Congress is anti-Hindu should turn to the by-elections held in Uttar Pradesh in 1948. At least, thirteen socialist legislators left the Congress and sought a fresh mandate. Among them was Acharya Narendra Dev, who stood from Faizabad. Congress leader and Uttar Pradesh chief minister Gobind Ballabh Pant fielded Baba Raghav Das as Congress candidate and then launched a vicious campaign accusing Acharya Dev of not believing in Lord Ram.
In the election campaign against the Acharya, who was eventually defeated, Pant took the help of KKK Nair, the district magistrate of Faizabad. It was Nair who on 2 December, 1949 suggested to Hindu groups that it was wiser to secretly plant the Ram Lalla idol in the mosque instead of taking it over through mass action, a revelation made by Krishna and Dhirendra K Jha in Ayodhya: The Dark Night.
Twenty days later, on intervening night of 22-23 December night of 1949, the idol was smuggled into the mosque. Harold A. Gould writes in Grass Roots Politics in India: A Century of Political Evolution in Faizabad District, “Government inquiries… revealed that followers of KKK Nair and Guru Datta Singh (city magistrate of Faizabad-cum-Ayodhya) used the authority which these two men commanded to persuade the police guarding the mosque to look the other way while the murtis (of Lord Ram and others) were smuggled inside.”
But as the situation on the morning of 23 December threatened to spiral out of their control, Nair and Singh rushed to Babu Priyadatta Ram, the chairman of the Municipal Board, who agreed to intervene and staved off the communal confrontation.
It should have been the administration’s responsibility to remove the idol from the Babri Masjid. But Nair stonewalled suggestions from Lucknow on this count. In a letter to Uttar Pradesh’s Chief Secretary dated 27 December, Nair said that the removal of the idol could spark off riots. He suggested an alternative proposal – attach the mosque, exclude Hindus and Muslims from it, and appoint pujaris to perform pooja and offer bhog to the idols. This arrangement should continue, Nair advocated, until the civil court adjudicated on the rights of disputants.
Nair made this suggestion after slipping a threat in a letter to Uttar Pradesh’s chief secretary a day before. Nair had written, “I would, if government decided to remove the idol at any cost, request that I be relieved and replaced by an officer who may be able to see in that solution a merit which I cannot discern.”
It was a classic Hindutva strategy – alter status quo and stoke communal animosity, and then claim that attempts to restore status quo ante would trigger bloody riots. It was now for the judiciary to respond to the brazen alteration of status quo, passed off as a miracle.
The legal suits of 1949
On 29 December, 1949, Magistrate Markandey Singh attached the Babri Masjid and appointed Priya Dutt Ram as receiver. Ram took over the property on 5 January, 1950 and drew a scheme on the arrangements to be made there, including the cost involved in organising bhog. Eleven days later the ploy to roll back the right of Muslims to the disputed site was legitimised.
On 16 January, 1950, Gopal Singh Visharad filed a civil suit (called Civil Suit No 2 of 1950) in the Faizabad court of the Civil Judge requesting that he be allowed to worship Lord Ram Lalla and other deities in the Babri Masjid. He also sought a permanent injunction against the removal of idols from the mosque.
A temporary injunction was granted to Visharad. But the district magistrate asked the government counsel to move for a modification of the order. It was argued that if the public were to have unrestricted admission inside the mosque to do puja and darshan, it would imply allowing one party (Hindus) to exercise their rights which were in dispute.
Civil Judge NN Chadha modified his earlier order on 19 January, 1950. It now read, "The parties are hereby restrained by means of the temporary injunction to refrain from removing the idols in question from the site of dispute and from interfering with the puja, etc, as at present carried on.” The civil judge confirmed his interim order on 3 March, 1951, justifying it thus: “The undisputed fact remains that on the date of this suit the idols of Shri Bhagwan Ram Chandra and others did exist on the site and that worship was being performed…though under some restrictions put by the executives.”
The other undisputed fact that the idols hadn’t been there on the site until 22 December, 1949 evening was ignored. What about the right of Muslims to pray inside the mosque? The civil judge said, “It is a matter of admission between the parties that there are several mosques in the mohalla in question. The local Muslims will not, therefore, be put to much inconvenience, if the interim injunction remains in force during the pendency of the case.”
Shorn of the legalese, the civil judge’s order implied that the worshippers couldn’t go inside the mosque, but, as was learnt in a case in 1986, could do darshan of Ram Lalla through the iron grills of the doors of the Babri Masjid. The civil judge’s order was confirmed by the Allahabad High Court on 26 April, 1955. It, however, asked the civil court in Faizabad to expeditiously decide the suit.
The idol of Ram Lalla in the Babri Masjid was now the new reality, which had been undeniably crafted because of the view the judiciary took. This new reality was to remain as long as the Ayodhya dispute wasn’t settled in the court. That wasn’t to happen for decades, thereby reinforcing in Hindus that the site belonged to them.
Three new suits
Meanwhile, apart from Visharad’s, three additional suits were filed. In December 1950, Ramchandra Das Paramhansa filed a suit asking for the same relief as Visharad had. In 1959, Nirmohi Akhara and Mahant Raghunath Das filed a suit asking for the management and charge of the Ram Janmabhoomi temple. In 1961, the Sunni Central Board of Waqfs filed the fourth suit asking the Babri Masjid to be declared as a “public mosque” and that it be handed over to them. In 1964, all these four cases were consolidated and the suit of the Sunni Waqf Board was made the leading case.
The suits remained pending in Faizabad’s civil court, more or less forgotten until the Ayodhya dispute was back in the headlines in 1986.
The decisive turn
On 28 January, 1986, Munsif Hari Shankar Dubey, of Sadar, Faizabad, issued an order rejecting Umesh Shankar Pandey’s plea that locks on the gates of the Babri Masjid should be removed. Pandey wanted this relief as it created a hurdle for the Hindus to do puja and have darshan of Ram Lalla. It was, as he argued, also in violation of the interim injunction granted in the 1950s.
Pandey appealed against the Munsif’s order in the District Court. The district judge KM Pandey in his order of 1 February, 1986 said that the idols inside the disputed premises were visible from outside. The outer gate had no doors. “Inside the main gate there is an enclosure made of grills and two doors have been placed in the inner enclosure. In both the gates locks were placed…. No records are available on this point as to who passed the orders,” he said.
After examining both the district magistrate and Senior Superintendent of Police, Faizabad, Pandey concluded that law and order wouldn’t be affected even if the locks on the gates were opened. He ruled, “This appears to be an unnecessary irritant to the applicant (Umesh C Pandey) and other members of the community. There does not appear any necessity to create an artificial barrier between the idols and the devotees.”
Once again, status quo at the disputed site was invoked to justify the enlarging of the rights of Hindus to the disputed site. Pandey said, “After having heard the parties it is clear that the members of the other community, namely Muslims, are not going to be affected by any stretch of imagination if the locks of the gates…are opened and the idols inside the premises are allowed to be seen and worshipped by pilgrims and devotees.”
Thus, were the locks from the gates of the Babri Masjid removed, spawning a fervour that gave a fillip to the Sangh Parivar’s Ram Janmabhoomi movement.
The countdown begins
In 1989, just before the Lok Sabha elections, consecrated bricks were ferried from different parts of the country to Ayodhya, stoking the popular passion. In the same year, yet another suit was filed in the Ayodhya dispute, on behalf of Bhagwan Sri Ram Virajman represented by next friend Deoki Nandan Agarwala, a former High Court judge. The suit wanted the court to declare that the “entire premises of Sri Ramjanmabhumi at Ayodhya…belong to the plaintiff deities”; and that a perpetual injunction be issued against any interference in the construction of a Ram temple at the site.
All the suits in the Ayodhya dispute were transferred to the Lucknow bench of the Allahabad High Court in 1989, because of an application filed by the Uttar Pradesh government in 1987. The Ayodhya issue had cleaved the nation and a judicial verdict or negotiated settlement was urgently required to bridge the social chasm.
But the chasm only widened as BJP leader LK Advani undertook a rath yatra from Somnath to Ayodhya, hoping to mount pressure on the VP Singh government to hand over the mosque to Hindus for building a temple there. Two years later, on December 6, 1992 the Babri Masjid was demolished. A makeshift temple sprang up at the disputed spot.
This was now the new reality. The judiciary adjusted to it as well.
After the demolition
On January 7, 1993 the PV Narasimha Rao government issued an ordinance taking over 66.7 acres of land in Ayodhya, including the 2.77 acres on which the Babri Masjid had stood. The ordinance was turned into the Acquisition of Certain Area at Ayodhya Act, 1993. The Act prescribed maintenance of status quo that prevailed just before the acquisition. It meant that the makeshift temple was to remain and puja was to be continued.
The Act also abated court proceedings on disputes over ownership rights to all properties in the acquired land. In other words, the Ayodhya title suits, pending in the High Court, too abated. Either the government was willing to let the mosque become a temple or planned to use the prevailing status quo to negotiate a deal between Hindus and Muslims. It tells you a bit about the nature of the Indian state.
A five-member bench heard a challenge to the Act in what is known as Ismail Faruqui vs Union of India, and also debated over the Presidential Reference that was made to it. The Reference asked Supreme Court to give its opinion on “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi Masjid-Babri Masjid in the area on which the structure stood.”
The Supreme Court refused to give its opinion on the Presidential Reference. The Reference, after all, did not involve a point of law. But worse, its formulation reeked of bias. As former Chief Justice of India AM Ahmadi pointed out to this writer in a recent interview, “We were being asked to give an opinion on whether there existed a temple or a Hindu religious structure, not whether a Rama temple existed. However, the cause of the dispute was that a Rama temple had been demolished to build the Babri Masjid in 1528. It was akin to shifting the goalpost, so to speak.”
By a majority 3:2, the Supreme Court upheld the Act but for the provision regarding the abatement of title suits. The title suits were consequently revived. But the Supreme Court, as had the High Court and the District Court in several instances in the past, recognised the new reality as status quo – the makeshift temple and the puja in it was to continue. No thought for the fact that the makeshift temple had been built after reducing to rubble the Babri Masjid and usurping the site.
This was the nub of the minority judgement that Justice A.M. Ahmadi and Justice SP Bharucha delivered in Ismail Faruqui vs Union of India. They declared the Act unconstitutional. “No account is taken of the fact that the structure thereon had been destroyed in a most reprehensible act,” they said. “The perpetrators of the deed struck not only against a place of worship but at the principles of secularism, democracy and the rule of law…. To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the Constitution.”
Ayodhya in 21st century
In 2010, the Lucknow Bench of the Allahabad High Court delivered its verdict on the Ayodhya. It partitioned the dispute land three ways –between Ram Virajman, Nirmohi Akhara and the Sunni Waqf Board. The Ayodhya title suits were over the question as to who owned the Babri Masjid. It wasn’t about partitioning the property. For this reason, the verdict was challenged in the Supreme Court in 2010.
For seven years, the 13 appeals and cross-appeals in the Ayodhya dispute lay in deep freeze. On 11 August this year, a three-member bench headed by Dipak Misra, now Chief Justice of India, ordered that the final arguments in the case should begin from 5 December, without adjournments. The date has now been shifted to 8 February, 2018.
The hearing in the case was ostensibly sped up because of an application of BJP leader Subramanian Swamy, who asked the Supreme Court to allow for the “rebuilding of the Ram Temple” so that he could exercise his fundamental right to worship Ram Lalla without impediment. Though Ram Lalla is worshipped at the disputed site even today, there are, in Swamy’s view, impediments aplenty, including having to take darshan of the deity from a distance.
It is debatable whether the right to worship can be claimed on a property in dispute or belonging to someone, let alone a site where a place of worship was demolished to usurp it. This, perhaps, could have been the ground for dismissing Swamy’s application outright. But then, Muslims can wait for their rights, not Swamy.
Misra retires on 2 October, 2018. This has had many to think he has ordered day-to-day hearing so that he can deliver the judgement before superannuation. Indeed, it would do the nation good to judicially resolve the Ayodhya dispute as early as possible. But herein is the catch – a verdict in the months before the 2019 election could tear apart the country’s social fabric. Whether the verdict favours a temple or mosque, triumphalism and disappointment will lead to communal polarisation, sharpened even further because of elections.
A judgment either way will undoubtedly be to the BJP’s advantage. A verdict in favour of the temple will lead the Sangh Parivar to organise a massive show to build it. An adverse judgement will have it turn the 2019 election into a referendum on Lord Ram, asking people to give the BJP a brute majority to enact a law to supersede the Supreme Court’s judgement and build a temple.
These things apart, one thing is sure – should the Supreme Court favour building a temple at the disputed site, it would have retrospectively endorsed the deliberate altering of reality that took more than 100 years to achieve, an alteration in which the judiciary too had a role.
This article is largely based on original documents published in AG Noorani’s magisterial work, The Babri Masjid Question: 1528 and 2003; Volume I and II.
Updated Date: Dec 07, 2017 13:52 PM