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

On 09-Nov-19, Hon. Supreme Court of India’s 5 judges Constitution bench comprising CJI Ranjan Gogoi, Dhananjay Chandrachud, Sharad Bobde, Ashok Bhushan & Abdul Nazir given entire 2.77 acre land to Hindus. By seeing the judgment it is not clear whether all 5 judges agreed to it or someone dissented like in Aadhar validity case where Justice Chandrachud given a scathing dissenting judgment calling Aadhar a fraud on the constitution.

Most Glaring Contradiction in this judgment is the bench ruled that Muslims failed to show they offered Prayer and were in “Exclusive Possession” of the mosque from 1528 to 1857. Yet the Hindu plaintiffs, who also failed to show this, get the land to balance the situation. Nowhere the Hindu plaintiffs (other than the Nirmohi Akhara which the court himself ousted) been asked to demonstrate exclusive possession of the site. Hindus worshipped at the Ram Chabutra outside the domed structure and the 18th century European traveller Jozef Tieffenthaler’s account of the worship of the ‘bedi’ or chabutra/cradle is cited, but that is an ambiguous source for the claim that Hindus worshipped inside the inner courtyard. There is an apprehension that the growing majoritarian sentiment may have cast its shadow on this judgement as well. While the Supreme Court observed that demolition of Babri Masjid by a mob was an unlawful act, yet its verdict appears to legitimise that act. While the Supreme Court has acknowledged that neither party has legitimate claim on the disputed land, yet it offers it to one of the parties. No doubt, the court attempts to craft a compromise but it does not appear fair or consistent with the court’s own reasoning. The Wakf Board and many Activists are not happy with the compromise offered by the court and with good reason.

Another example is paragraph 798 where the court notes: “The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship…. Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.”

On 6 Dec 1992, the Babri mosque was demolished by a mob of militant Brahminist Karsevaks, who went on to construct a make-shift temple in its place. The incident set off one of the worst religious riots in the post-independence India, killing over 2,000 people. Now as Gogoi bench has chosen to categorise the 6 Dec 1992 vandalism as unlawful, the law should now go, with its full force, after Advani and others still facing criminal conspiracy charges in the Babri Mosque demolition case. Order in this regard is missing. Supreme Court must take steps to ensure that those guilty of demolition of Babri Mosque are punished expeditiously. No action taken on these culprits who demolished a historic mosque and destroyed secular fabric of our country triggering riots & bloodshed leading to heinous riots in Bombay in Jan-93 (conspirators are mentioned in Justice Shrikrushna Committee report) but successive congress Govt’s not taken action against them neither Supreme Court ordered to do justice to those victims.

Then Congress PM Narsimha Rao is equally responsible for this demolition by not acting to save the Mosque & not allowing place to be under control of Central Govt. by declaring it a Union Territory. Rajiv Gandhi is also equally responsible for this dispute by allowing idols to be kept inside this historic mosque. Madhav Godbole, who quit as Union home secretary after the demolition of this 16th century mosque, called Rajiv Gandhi the “second most prominent kar sevak” in the Ayodhya dispute. “Rajiv Gandhi remained focused on pleasing the fundamentalists among the Muslims and the Hindus; the Muslims by getting the Muslim Women’s Divorce Act enacted, and later, the Hindus, by getting the locks of the ‘temple in the mosque’ in Ayodhya opened, permitting shilanyas (foundation stone-laying) of the new temple & permitting VHP’s shila yatra” – he written in his book.

My personal view is that this is just a verdict & not a justice. Real justice would have been done if along with punishment to the militant leaders responsible for demolition of historic Mosque, Supreme Court using the same special powers of Article 142 (to give a historic lesson in such a sensitive cases) alloted this entire land for building a School or Hospital (which is what country needs most) so that nobody would dare to demolish such a historic structures on the name of religion or god. As both the parties failed to provide concrete evidences for their claim of the land, this decision would have been more historic.

The provision of Article 142 that vests sweeping powers in the Supreme Court for the end of ensuring “complete justice” has been used generally in cases that involve human rights and environmental protection. In granting five acres of land in Ayodhya, but outside the disputed area, to Muslim parties, the Supreme Court used extraordinary powers granted to it by Article 142 of the Constitution. Supreme Court, implicitly referring to the demolition of the Babri Masjid at the disputed site, said that it was invoking Article 142 “to ensure that a wrong committed must be remedied”. “The Constitution postulates the equality of all faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its people,” the court said. But this is completely contradictory to what the main verdict it had given.

The day chosen to announce this judgement is also wrong. This day (9-Nov) was 500 th Birth Anniversary of Guru Nanak Dev, founder of Sikh Religion. The day of opening of Kartarpur Corridor between India & Pakistan is a historic step towards improving the relations between two countries & should have been celebrated across nation with great joy & discussions. But we will not be able to know where Central Govt. (Read IB) asked CJI to deliver it on this day or not but clearly it has diverted the attention from this history ceremony held in Pakistan. Timing of this verdict also caused delay in tie up between Shivsena & both Congress parties in the Maharashtra.

Second important thing is if historic Babri Mosque had not been demolished – there would have been different verdict altogether. Supreme Court in that case, definitely would not have ordered demolition of this Mosque. Pointing out a “serious flaw” in the “entire approach of the High Court”, the constitution bench said that granting an independent portion of the disputed land to Nirmohi Akhara which had claimed to be the shebait (a person who is appointed by temple authorities to serve the deity, maintain the property and manage it, and enjoys certain rights over the property) defied logic and was contrary to settled principles of law.” Since Nirmohi Akhara’s did not have enough evidence to back their claim of being a shebait in the case, the top court in its order said it is not a shebait or devotee of the deity of Lord Ram, and instead handed over the entire 2.77 acre of disputed area to Ram Janmabhoomi Nyas. Supreme Court in its observation notes that a pujari who conducts worship at a temple is not elevated to the status of a shebait. “A pujari gains no independent right despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits.”

It is absolutely unclear about why the court felt it essential to hand over the entire land to the temple after saying that it could not conclude that the Babri mosque was built on a demolished structure. The Supreme Court accepts that the breaking of the mosque after the mobilisation by the BJP was a violation of the rule of law and a crime. It also accepts that the act of putting idols in the mosque was desecration. But it nonetheless gives the land over to those who desecrated saying that “whether a belief is justified is beyond judicial inquiry. Once faith is established, courts should defer to it.”

But these 5 Supreme Court judges clearly seen missed the bus to give justice in this case & increased the chances of more such a demolitions where most of these places may be belonged originally to Buddhist Shrines of our country, some of whose evidences found by ASI in their research & digging. The judgment makes it clear that “that there was evidence from the ASI report to conclude that the Babri Masjid was not constructed on vacant land. There was a structure underlying the disputed structure, which was not an Islamic structure.” The judgment also notes that though the mosque was claimed to be built on vacant land, ASI findings clearly indicate that it was built over a non-Islamic structure that appears to be a temple though there is no clarification on whether it was dedicated to a specific deity. The apex court observes that terming the archaeological evidence as merely an opinion would be a “great disservice to the ASI.” This points to the Buddhist structure being present earlier. But seems faith of majority & discretion given to judges prevailed here. Vineet Kumar Maurya, a resident of Ayodhya, claims that excavations at the disputed site had unearthed remains from the Ashokan era linked to Buddhism. Supreme Court has admitted his petition in 2018 .

All submissions in court have been made on the basis of excavations carried out by the Archaeological Survey of India. There have been three rounds of excavations in Ayodhya, the most recent being in 2002-2003. There are 186 pits that have been dug to search for the remnants of earlier structures. So far, only 50 have been properly searched and yielded remains. The rest still have to be examined. Out of these 50, ample evidence has emerged of a large Buddha Vihar or Buddhist settlement, of considerable antiquity, at the site. But it seems this angle is not explored & ignored.

Sir Alexander Cunnigham On Ayodhya –

Sir Alexander Cunningham conducted a survey in Ayodhya, which was limited in its nature because of the existing temples and mosque. According to him, Gautama Buddha spent six years at this place. Although Ayodhya is mentioned in several ancient Hindu texts, Cunningham found no ancient structures in the city to substantiate the claim. According to him, the existing Brahmanical temples at Ayodhya were of a relatively modern origin. The view that the existing mosque and temples were built upon a Buddhist site is cemented by many other excavation reports of the time as well. Another report by Patrick Carnegie, in 1870, suggested that the Kasauti pillars at the Ayodhya site strongly resemble the ones at Buddhist viharas in Sarnath and Varanas. Some results of the 2003 ASI report suggest that a Northern Black Polished Ware (NBPW) culture existed at the mosque site between 1000 BC and 300 BC. A round signet with a legend in Ashokan Brahmi and terracotta figurines of female deities with archaic features, beads of terracotta and glass, wheels and fragments of votive tanks have been found. This affirms the view that there existed a Buddhist Vihara even before the temples (if there had been one at the time).

Sachin Godambe is a Social Activist & Freelance Journalist


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