COPYRIGHT THE BRITISH LIBRARY BOARD A photograph of the Babri Masjid from the early 1900s

The nation is bracing for the judgement in the most controversial issue of India, the Ramjanambhumi/Babri Masjid, Ayodhya, Faizabad, UP case where Muslims are waiting with bated breath and Hindus in an over joyous mode are waiting for victory as a ‘double-diwali’, already there are voices from BJP parliamentarians (latest by Sakshi Maharaj on Oct 27) and legislators that construction of Ram Temple, on the demolished site of Babri Masjid, would start before December 6, which also marks the day when Babri Masjid was demolished by Hindu fanatics with active complicity of Congress PM Narsimharao government along with BJP top leadership , December 6 ironically, is also the death anniversary of BR Ambedkar. Hindu fanatics under the suzerainty of RSS want to annihilate Muslims and Dalits (untouchables) together in the Hindu State, which is just brimming to happen. No wonder, tomorrow the historian would argue that foundations for the demolition of Babri Masjid were laid down when secular India’s first President Rajender Prasad had gone to inaugurate Somnath Temple on May 11, 1951!

The judgement in this Babri Masjid title suit is likely to come on Nov 15 or even before as Chief Justice of India superannuates on Nov 17, but in an extra-ordinary situation it can also be delivered even on a holiday. Supreme Court in a constitution bench headed by CJI Rajan Gogoi, Justice SA Bobde, Justice DY Chandrachud, Justice Ashok Bhushan and Justice SA Nazeer is hearing this case from August 5, ( interestingly, the day when Article 370 was done away with in Kashmir) on a day to day basis, as the judgement of Lucknow bench of Allahabad High Court, Lucknow, on Sep 30, 2010, had decided that Babri Masjid site may be given two-third to Hindu side and one-third to the Muslim side, which both sides did not agree and had challenged the order in SC in 2011.

However, in the melee of Babri Masjid title suit, the nation is absolutely unconcerned to the details of the two cases lodged after Babri Masjid demolition which perhaps today deserve a mention. It may be known that on the day of demolition of Babri Masjid, on Dec 6, 1992, at 5:15 pm, the first First Information Report (FIR)-197/1992 was lodged by Privambada Nath Shukla (50 years), Station Officer, at Police Station (PS), Ramjanaum Bhumi, Ayodhya, Faizabad, UP against lacs of Karsevaks-name and address unknown Under Section (U/S) 395(dacoity), 397(dacoity or robbery with attempt to cause death), 332(causing hurt to deter public servants), 337, 338(grievous hurt), 295 ( injuring or defiling place of worship with intent to insult religion of any class, 297(trespass in any place of worship) and 153-A which makes- promoting enmity between different groups inter alia of religion- of Indian Penal Code (IPC) read with Section 7 Criminal Law Amendment Act.
The second FIR 198/1992 was lodged at the same PS, 10 minutes later on the same day by Ganga Prasad Tiwari-U/S 153-A, 153-B (imputations prejudicial to national integration) and 505 (statements conducing to public mischief) against eight high-profile BJP leaders like LK Advani, MM Joshi, Vinay Katiyar, Uma Bharti, Ashok Singhal, Giriraj Kishore, Sadhvi Rithambra and Vishnu Hari Dalmia. The above sections of IPC are cited by police when rabidly communal speeches are delivered. The FIR was in context to the speeches delivered on the morning of Dec 6-prior to demolition. Both the FIRs came to be referred as Crime No. 197/1992 and Crime No. 198/1992. Eventually, 49 FIRs were filed against 49 persons with respect to cognizable offence and one FIR relating to non-cognizable offence committed against media persons who were recording the demolition of Babri Masjid and whose video cameras etc were snatched and broken/robbed by the Karsevaks. Sadhvi Rithambra, can be listened saying (on Youtube) shortly before demolition that ‘belief’ is out of the purview of the courts to decide. An echo unanimous to every Hindu in our country, with only a handful of exceptions who vouch for the law. A tokenism in the form of Liberhan Commission report, formed to probe the demolition, is also gathering dust and no doubt all the demolition accused are never to be brought to justice in any foreseeable future.

On the title-suit front Muslims have pinned every hope on the SC where Muslims have a very strong case, and where deservingly the judgement of Sep 30, 2010 ought to be set aside and the suit of Muslims be decreed in toto and suit of others be dismissed, for more than apparent reasons, as this is what history of litigations suggest. This imbroglio, made its first start in 1885 when a suit was filed by Mahant Raghubar Das who claimed to be a Pujari and Mahant and had stated inter-alia that said place (Babri Masjid) was quite sacred for Hindus and for want of building of a temple there, at a Chabutra (17ftX21ft) in the outer courtyard of Babri Masjid, where wooden Lord Rama idols were kept, and where Hindu community had faced great hardships in winters, summers and rains, henceforth, the trial judge HK Sharma, had recorded his findings that on account of such ‘user’ they(Hindus) were entitled to raise the building, however, the District Judge Faizabad, Chamier had set it aside for which a cross-objection was filed on behalf of mutawalli (trustee of Babri Masjid) and the District Judge went to the spot and recorded categorical findings that word ‘Allah’ being inscribed on the outer wall of Babri Masjid, the entire area within the courtyard is part and parcel of Babri Masjid and no such right can be claimed by anyone merely on the basis of use. Furthermore, the second appeal before the Judicial Commissioner Faizabad, being equivalent, in all aspects to HC, had also stated that the finding of the trial court of HK Sharma on issue no. 5, the right based on ‘user’ (Hindu) were absolutely absurd.

It may be prudent here to recall that the said findings having been set aside yet at this point it has to be considered that the said findings had already been set aside by the District Judge in the first appeal there was no need as such to set them aside again in the second appeal too. But, it is said that sometime certain circumstances prick the conscience of man and it appears for sure that Judicial Commissioner ( W Young) had taken to such findings as a pricking on his conscience and thereafter was forced to say all the same and had condemned and quashed the said findings in more stronger words than District Judge. None of the contestants had then dared to challenge the order in Privy Council.

What however also needs to be pointed out is that in the history of litigations of 134 years around Babri Masjid, we do not find anything, at any point of time, that the Judicial Commissioner order was found to be bad and unless this judgement is set aside nobody can seek to go beyond as there is an absolute silence after the 1886 judgement.

Ayodhya thereafter had to witness another ruckus in 1934, on account of cow-slaughter on the occasion of Eid-ul-Adha in a neighbouring village Shahjahanpur, when a struggle between Hindus and Muslims took place, in which Babri Masjid was damaged, which was repaired by British government, through Tahawwur Khan contractor, and mosque was restored to all its sanctity after a penal tax was levied on Hindus and the matter had then ended. All these documents have been submitted in the SC by the Muslim side.

In 1941 another suit was filed by Nirmohi Akhara, a part of pleadings in SC also, by Ram Charan Das, numbered as Suit No. 5 of 1941 in which the description of all the properties of Nirmohi Akhara in Ayodhya and Gonda are given and a site plan is also there in the plaint and as per description of the boundaries of the disputed land, on three sides graveyard is mentioned and on the western side Babri Masjid is mentioned covering the larger area and the written-statement filed on behalf of office bearers of Nirmohi Akhara , in which it has all been admitted and not a single word has been said questioning the existence of Babri Masjid and graveyard. In the said suit a commission was issued and the report and map of commission reiterates all the same. Interestingly, in the same suit a question of valuation also had arisen and the wall, which was raised in the outer courtyard of Babri Masjid after 1855, in which Lord Rama idols were kept, and it was given ( by Nirmohi Akhara) that the said wall was not concerning the Nirmohi Akhara and in fact had belonged to Babri Masjid and ought not to be valued. Now it is being argued in the SC by the Hindu sides that Muslims after 1934 on account of fear had abandoned the Babri Masjid and had ceased to offer prayers there, and by way of which, Hindus have perfected the right by adverse possession, whereas as per Nirmohi Akhara’s own plaint it is unequivocally accepted, in 1941, about Babri Masjid and adjoining graveyard! Thus, the claim by the Hindu side of adverse possession is absolutely fallacious. Nirmohi Akhara is also one of the parties from the Hindu side in the SC.

Some people, though innocently say that after the placing of Rama idols surreptitiously and stealthily inside Babri Masjid on Dec 22/23 1949, they have perfected the title by such continued worship. In this regards it can be said that such saying in a mere wishful thinking and no right at all can be accrued by possession during the pendency of dispute. Moreover, an estimate of expenses for Puja was prepared by Priya Dutt Ram, the Receiver appointed by the City Magistrate in 1950, and it reads Rs 30 and 8 Anna per month which was to be borne by both parties-Hindus and Muslims, apart from this the Pujari being appointed by and paid by the court, it cannot be said to be Puja by any party and Muslims also did not contribute to the amount. The question of Aastha ( belief) is paramount to Hindu argument and it ought to be reiterated that according to Hindu jurisprudence an Aastha would be considered ‘for it’ only in the year it is promulgated, and Aastha came into open in 1885, almost 350 years after Babri Masjid was built (in 1526). Lord Rama was not Bhagwan (God) by the time Rishi Balmiki wrote Ramayana and introduced Lord Rama as an Iron-Man and Bhagwanship does not find place in his work and it is Mahant Tulsidas who introduced Lord Rama as Bhagwan (God) and his book written Ramcharitramanas having been written at Datun Kund by Tulsidas itself, during the reign of Jalaluddin Akbar (grandson of Zaheeruddin Babar) and finds no mention of any existence of any temple or its demolition at the site of Babri Masjid. It is quite surprising that a man of stature of Tulsidas could have concealed it. Till today none has said, before SC, that since there was a fearful Muslim rule no one could fathom for it.

It is in this context of all the SC is likely to deliver the verdict. Muslims have evidence and history and Hindu side is banking on belief and SC is to steer clear of it. There is no archaeological evidence to prove that a temple, no less than a grand Rama temple was demolished and Babri Masjid constructed on it. The ASI report was bulldozed by Muslim side during arguments at Lucknow HC but the full bench of Justice Sudhir Agarwal, Justice DV Sharma and Justice SU Khan did not refer to them on Sep 30, 2010. In fact, Muslims were totally devastated by that order which actually legitimised the Babri Masjid demolition.

Now if SC decides in favour of Hindus, then Hindus would waste no time to claim for Kashi and Mathura sites and The Places of Worship (Special Provisions) Act 1991 would be blown to smithereens and very soon the 40,000 list of mosques will be on the agenda to reclaim them into temples, as in the nation which vowed to be secular a ‘balance of history’ will take place. Hindus will extract revenge for all the wrongs done during the ‘Muslim-Rule’ from Muslims of today in India. Such euphemisms have ironically been expressed by stalwarts like Sri Sri Ravi Shankar ( a part of mediation panel on Babri Masjid appointed by SC on March 8) that Hindus have been fighting for the claim over Babri Masjid since 500 years, whereas, the fact is that only in 1885 did came the Hindu’s first claim and that too for inside the outer courtyard of Babri Masjid, which too, was quashed, what to talk of claiming that Lord Rama was born inside the central dome of Babri Masjid 9,00,000 years back!

The logic of Sri Sri Ravi Shankar gets punctured through the evidence of letters by Faizabad DM KK Nair who wrote to UP government in Sep 1949, before the idols were kept, that Hindus were claiming to be allowed to building a temple in the outer courtyard of Babri Masjid, and even after the idols were kept on Dec 22/23 1949, he wrote two letters on Dec 26&27, 1949, in which there is an unequivocal assertion that there was no such threat on the part of Hindus for keeping idols inside the mosque and it was quite unknown to anybody and as such no question of any right by possession in favour of Hindus arise. The letters are a part of submissions from the Muslim side in SC.

BJP today is romping under Modi 2.0 since May 23, when it got 303 in Parliament, something which Congress party is solely responsible as BJP was only 2 seats in 1984, but Congress PM Rajiv Gandhi got unlocked Babri Masjid on Feb 1, 1986, which was locked down since Dec 22/23, 1949, then got Shilanyas performed in November 1990, then Congress PM Narsimha Rao played a devious complicit role in demolition of Babri Masjid, and quite understandably it gave rise to the communally infested BJP. BJP now at the helm, from its cronies want Muslims to make surrender of Babri Masjid anyhow by hook or by crook. But, despite the odds of heaviest kind Muslims have braved the fight as for Muslims it is an existentialist juncture for their survival in India. Despite dozens of reported and unreported cases of murderous assaults on Muslims daily in India.

It is also now being touted that if Muslims win the case BJP would bring an Act in parliament to circumvent the judgement, which is true as the power remains in the central government to amend the law and nullify the judgement. But, since Jan 26, 1950 there are number of cases where by amending the law judgements have been nullified, whereas, it is said that by amending the law, with the judgement has already been delivered, is not nullified, only the basis of judgement for future disputes stands to be amended. To put it into clear words, it is not the judgement but the basis of the judgement is amended, thus, conceding the power of amendment to vest in the parliament it can be amended, and thereby, making it applicable to the Babri Masjid also but then what about the historic judgement of SC in Ismail Farooqui V’s Union of India 1994?

This order (of 1994) would certainly stand in between such legislation as on Jan 7, 1993, an ordinance was promulgated by central government, later on converted to law as Act No. 33 of 1993 and SC in Ismail Farooqui V’s Union of India case reported in AIR 1995 P-605 has held, the amendment acquiring the area and vesting the same in the central government for the area of the mosque to be bad. The reason being that the right to seek adjudication being held to be part of basic structure in Keshavanand Bharti case ( ordered by 13 judges bench in 1973) , and basic structure not amendable to be touched by any judgement, the SC had said, that by such acquisition the Muslims would be deprived to defend their right by adverse possession of 400 years (of Babri Masjid) and Sub Section 3 of Section 4 ( of the Act of 1993) was held to be ultra virus. Hence, for BJP it would be a heady task to being such a legislation which has been once already set aside by SC. Whereas, an earlier acquisition of 1991 (by UP government) has also once been quashed. A bench of three judges bench at the Lucknow bench of Allahabad High Court, vide its judgement Dec 11, 1992, in the said case Justice SHA Raza quashed the acquisition that the land of Masjid cannot be acquired, however, the majority view of Justice Mathur and Justice Brijesh Misra had held that the acquisition was malafide. The question of malaife is very much sill available and can be used against any parliamentary enactment. Moreover, In Ismail Farooqui case the majority view of two judges Justice Ahmedi and Justice Bharucha has said the whole Act of 1993 is slanted in favour of Hindus, ignoring that the dictum the right to seek adjudication being part of basic structure , once the matter already been decided in favour of Muslims , by the Apex Court, it would be too difficult to eschew any legislation overriding the same .

Skeptics may also be reminded that even the brute majority is not a yardstick for making the law, as SC has in the past exemplified when it had quashed the appointment of Chief Minister Jayalalita in May 2001, even when Governor had appointed her, under Article 164 of Constitution, which says that a person being competent and entitled to be appointed, but such appointment being bad as per other provisions despite the decision of majority, had been held as bad by a five judges bench comprising Justice Bharucha, Justice Patnaik, Justice Sabrawal, Justice Rumapal and Justice Brijesh Kumar( AIR SC Page 3435, Published Sep 21, 2001).

Our Apex Court, hence, knows it fully well about the responsibility which rests on its shoulders today, it is a make or mar moment for India, as SC has in the past never got cowed down to majority decision and nothing has ever brow-beaten this law upholding institution (SC). It is a maxim that democracy and rule of law swim and sink together and SC will certainly uphold the sanctity of law to make democracy survive or else mobocracy would be the ensuing disaster.

Haider Abbas is a lawyer, journalist and former UP State Information Commissioner.


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