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Remembering Babri Masjid : A Day of National Repentance
Friday, September 17, 2010, Chandigarh, India
All parties must act to face the situation
by Rajindar Sachar
THE government, the Opposition and the public in general are rightly in panic awaiting the verdict on Babri Masjid by the Allahabad High Court – a situation brought about by the faltering non-secular stand by the governments concerned. The High Court is to give its verdict on the following points: (1) Was the place under Babri Majid the birthplace of Lord Ram? (2) Was there a temple on the land on which Babri Masjid was built?
Now it is obvious to the meanest intelligence that it is impossible to prove that the birthplace of Lord Ram was under the masjid — it may be a matter of faith, genuine or contrived or otherwise, but that is no proof, nor can it ever be put forward as a legal ground to take away the land from the mosque.
If the finding is that the masjid was not built on a temple, then the Muslims get the land back and will be free to use it in any way, including the building of the mosque.
In the alternative it may be held that there was a temple on the land of Babri Masjid. But even with this finding the suit by the VHP/RSS has to be dismissed. Admittedly, Babri Masjid has been in existence for over 400 years till it was demolished by goons of the VHP/RSS in 1992. Legally speaking, the Sangh Parivar would have no right even if a temple had been demolished to build Babri Masjid.
I say this in view of the precedent of the case of Masjid Shahid Ganj in Lahore decided by the Privy Council in 1940. In that case there was admittedly a mosque existing since 1722 AD. But by 1762, the building came under Sikh rule and was used as a gurdwara. It was only in 1935 that a suit was filed claiming the building was a mosque and should be returned to the Muslims.
The Privy Council, while observing that “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely”, went on to hold “The property now in question having been possessed by Sikhs adversely to the waqf and to all interests there under for more than 12 years, the right of the mutawali(caretaker) to possession for the purposes of the waqf came to an end under the Limitation Act”. On the same parity of reasoning even if a temple existed prior to the building of the masjid 400 years ago, the suit by the VHP etc has to fail.
There is another reason why in such a situation, the suit will fail because in common law, even a rightful heir, if he kills his ancestor, forfeits his right of inheritance. In the masjid case too there was a “murder most foul” and hence the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the legal position maybe.
It is true that sometimes some Muslim groups in a spirit of large-heartedness and as a measure of mutual accommodation, suggest that if it was found that the masjid was built on the site of a temple, they would not like to now build a mosque on the said site because the Koran forbids the Muslims to build a mosque by demolishing any other religious place. But even then if the Muslims choose not to build a masjid on this site, the ownership and use of the land remains with them. The Hindus cannot under any circumstances lay a claim to this site which was under Babri Masjid.
Some well-intentioned persons come out with an apparently neutral suggestion of building a multi-religious complex on the site. To me this would be a surrender to the rabid Hindu communal sentiment. Whatever explanation you may give, a Muslim then would feel a less equal citizen if even after he has won, he is asked to share this site with the goons who destroyed the holy mosque. This would be a defeat of secularism and against our Constitution, which mandates that all citizens — Hindus, Muslims and others — have equal rights and are equal before law.
A multi-religious complex or a multi-culture centre or a hospital can obviously be built by the joint free will efforts of both Hindus and Muslims. But such a complex, if it is to be built necessarily, must be on the land away and outside the masjid complex, and that too only if the Muslims give their consent — obviously as the vacant land belongs to the Muslims. But under all circumstances, the site under Babri Masjid must remain in the exclusive possession of the Muslims, who should be free to use it in any way the community decides.
I feel that the government should start doing an exercise of consultation and preparation on these lines – to await helplessly trying to anticipate what the verdict would be is like a pigeon who on seeing a cat closes its eyes with the delusion that the cat would go away — the result is obvious.
Equally, I feel that leaders of all communities, political parties and social groups should start planning to meet the situation because the matter requires the involvement of people at the grassroots level and the matter does not brook any delay.
The legal position is clear. It is only the weakness of political will that is responsible for the Ayodhya imbroglio to continue as one of the bitterest disputes within the country. By keeping the Ayodhya issue alive, the country has been kept away from addressing its most urgent task — how to meet the challenge of the growing pauperisation of the masses. And that includes both Hindus and Muslims.
The writer is a former Chief Justice of the High Court of Delhi
‘Faith has no meaning in a court'
AJOY ASHIRWAD MAHAPRASHASTA
Interview with Justice Rajindar Sachar.
Justice Rajindar Sachar.“ It is time the secular political parties took a stand.”
JUSTICE Rajindar Sachar, former Chief Justice of the Delhi High Court, has emerged as one of the most critical voices against the Ayodhya verdict. The author of the Sachar Committee report, which documented the poor conditions of Indian Muslims, says the judgment delivered by the Lucknow Bench of the Allahabad High Court on September 30 follows no legal precedents and has done injustice to the Muslim community by rewarding the Sangh Parivar, whose constituents demolished the Babri Masjid. Excerpts from the interview he gave Frontline:
The Ram Janmabhoomi-Babri Masjid dispute is not just a religious dispute but has occupied political imagination in India for the past two decades. How do you perceive the verdict?
The judgment can be summed up in two words: Crime piece. In 1992, a crime was committed. The Babri Masjid was demolished. But assume that the crime was not been committed and the matter had gone to court. Do you think the court could possibly, under any circumstances, order that the land be divided? Frankly, the grounds on which the organised Hindutva plaintiffs went and asked for land, they should have been thrown out on the grounds of remediation. You see, the masjid was there since the 16th century. They filed the suit only recently [in historical periods]. The Limitation Act dictates that a suit could be filed within a period of 12 years from the date of dispute. Legally speaking, the Sangh Parivar does not have a right even if a temple had been demolished to build the Babri Masjid, as the masjid existed before the period of limitation.
I have been writing since 2003 that a precedent to this case exists. [Quotes from one of his research papers] ‘There was a masjid called Shahid Ganj in Lahore decided by the Privy Council in 1940. In the case, there was admittedly a mosque existing since 1722. But by 1762, the building came under Sikh rule of Maharana Ranjit Singh and was used as a gurudwara. It was only in 1935 that a suit was filed claiming that the building was a mosque and should be returned to Muslims. The Privy Council, while observing that ‘their Lordship have every sympathy with a religious sentiment, which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely', went on to hold that ‘the property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of mutawali [caretaker] to possession for the purposes of the waqf came to an end under the Limitation Act.'
At that time, the court noted that the site was undoubtedly a gurudwara. It was not a question of demolition. The Babri Masjid is a much more political and sensitive site, as it was made out to be.
By parity of reasoning, even if a temple existed before the building of the masjid 400 years ago, the legal suit by the Vishwa Hindu Parishad and others must fail. On the contrary, the court dismissed the plea of the Sunni Waqf Board, which was valid under the Limitation Act.
Then, there is a second aspect. There is no clear finding that a temple existed beneath the masjid. Most people noted that there may have been ruins of some temple. The country's polity spans a period of around 5,000 years. Many Buddhist temples were destroyed to build Hindu temples and masjids. Some mosques were also demolished by some Hindu kings. Not because of any religious considerations but because of political compulsions of that time. Does this mean that you will secure the sanctity of all this through demolition and reclaiming? In the Babri Masjid case, there are contradictory opinions of many historians that there was no temple there at any time. How can a court decide on a dispute based on the Hindu faith that it is believed to be the birthplace of Ram? In a court, faith has no meaning. Then, there is a third aspect. Whether Muslims build a mosque or not is a different question. That is a Muslim choice. But since a mosque was demolished, the land should have been returned to Muslims. Many young people are disappointed. Many Muslims said they could have built a school or a hospital for all communities on the land but the land should not have been divided. The argument that the land should not go back to Muslims is not understandable. Even the Quran, it is said, says Ram and Krishna were prophets and Muhammad was the last prophet. Many Muslim scholars have come to this conclusion.
The judgment is ridiculous. Let us accept the controversial Archaeological Survey of India [ASI] report that there was a temple there. The Muslims could have also accepted. They could have chosen not to build a mosque there but the land should have been given to them. They could have built anything on it. It is their human and communitarian right. Even if the temple was destroyed, does displacing Muslims from a 500-year-old shrine make sense? The court is not competent to judge historical events.
The judges have quoted faith extensively. Your comments.
That is what I was saying. This is their finding that Hindus believe that the disputed site was the birthplace of Ram. In the process, they legitimised right-wing history, so controversial in historical polemics.
How far can you go back to correct history even if you take religious faith into consideration? In a secular country like ours, it is totally impermissible. I don't want to use a strong word but it is a political dishonesty. Our political parties refused to take a stand. The demolition wouldn't have taken place at all had the government taken a stand. Now each of these parties is saying that let the court decide. It is a political issue. In all the important areas of governance, the political parties say that the court should not interfere. But now, it is very convenient for every party to say that the court can decide. Political parties should take a stand. This is secular India after all. Judiciary has to hear a suit, give a finding. But in this case, neither legal precedents nor common laws were taken into account. The judges acted as guardians instead of ensuring justice.
The Sangh Parivar has indicated that it will revive the Ram Janmabhoomi Movement. This could lead to polarisation among religious communities. Has the judgment made a dent in the principle of judicial neutrality and objective rationality?
It is undoubtedly a pro-Ram Janmabhoomi judgment, inclined towards the majoritarian view. The Sangh Parivar is sensing a victory in it. But it would not be correct to castigate the entire judiciary as such. It definitely creates a dent in its reputation. The fact of the matter is that the images of Ram Lalla were placed there in 1949. It was an act of piracy. Muslims had been praying there for a long time. It was a mosque. When a Hindu idol was installed, it was natural for Muslims not to pray there as worshipping an idol is against their religious ethics. That is why they stopped going to the Babri Masjid. That does not mean that their rights had gone. In 1949, the court had prohibited any kind of worship there. But now the court has ruled that in 1528 a temple was destroyed, thereby legitimising a controversial ASI report. Even if a temple was destroyed, you cannot come to the conclusion that the Babri Masjid was illegal.
This was a civil case of title dispute. But the matter is so politically sensitive that it indirectly legitimises the Babri Masjid demolition, which was a criminal act. What do you have to say about this?
Yes, this judgment has damaged a lot of things and made a dent in the secular ethics of India. It is like saying: destroy the mosque and give it to the Hindus. Two-thirds of the land is effectively going to the Hindus. Faith can be no grounds to reach a decision in a court of law.
The media have been asking the people to move on. Where should we move on? And move to what? You can't forget a crime. A court of law has to ensure that you cannot get away after committing a crime. The Muslims' right to their property is being taken away. The common law says that if a son kills his father, he is not entitled to inherit his father's property. But here the goons who demolished the mosque got what they wanted.
As the author of the Sachar Committee report, you have documented the poor conditions of Muslims. What kind of message has the minority communities got from such a judgment?
It will be a very dangerous message, of course. It is time the secular political parties took a stand. In 1946, Bihar was in flames. It was hit by Hindu-Muslim riots. Pandit Jawaharlal Nehru publicly wrote a letter that if the riots did not stop he would bomb the rioters from Delhi. Bihar was a Muslim League constituency, and the League was fuelling the riots. But the larger vision of political parties prevented a lot of mess. The state had to take a stand and reaffirm its secular ethics as granted by the Constitution. However, it is good to see that the organised Muslim opinion is adopting a healthy approach. But you can't tell them, as the media have been doing, to forget everything. It is a question of the community's belief in the system and India's polity. The good thing is that their reactions have been very restrained.
Why should the Muslims be asked to move on? The same question can be posed to the Sangh Parivar. Why don't they move on? Even with this judgment, they are feeling victorious but not satisfied. They want to build a Ram temple on the entire land there. If it is a question of Hindu sanctity, is it not a question of Muslim sanctity, too? To me, this judgment is a surrender to the rabid communal sentiment. It is only the weakness of political will that is responsible for the Ayodhya imbroglio. g