MADAV GODBOLE | 1 OCTOBER, 2019
The Babri Masjid-Ram Mandir Dilemma: An Acid Test for India’s Constitution
Not just a land dispute
Former Union Home Secretary Madav Godbole’s book Babri Masjid-Ram Mandir Dilemma: An Acid Test for India’s Constitution could not have been better timed, given the fact that petitions are currently being heard by the Supreme Court of India. The background, the conversations, the decisions come alive in this detailed and comprehensive account. The Citizen is happy to carry a relevant extract from the book:
Sadly, several opportunities for saving the Babri Masjid were lost. Syed Shahabuddin in his letter to Prime Minister Rajiv Gandhi on 10 May 1986, had written:
The only hopeful development is that through the mists of misunderstanding and propaganda, the outlines of a possible solution are emerging. This solution is based on the separate existence of the two structures known as Babri Masjid and Ram Chabutra, separated by a wall. Ram Chabutra marks the Janmasthan of Shri Ramachandraji. First, let the status quo ante be restored in the Babri Masjid as on 22 December 1949. Second, let a magnificent temple dedicated to Shri Ramchandraji be built on Ram Chabutra. Thirdly, let the Babri Masjid be notified as a protected national monument of historic importance and taken under the care of the Central government. And finally, once an agreement is reached, all pending cases relating to the dispute can be withdrawn by mutual consent.
Shahabuddin had urged the Prime Minister to take the initiative and actively engage all concerned in discussions so as to evolve a fair and acceptable solution (Muslim India, 10 May 1986, quoted in Noorani, The Babri Masjid Question, Vol. 1, 2003: 278).
Soon thereafter, on 15 January 1987, Karan Singh wrote to Prime Minister Rajiv Gandhi:
There seems to be no controversy regarding the ‘Chabutra’ where in fact worship has been carried on for many years. I suggest that a national committee be formed to draw up plans for the construction of a magnificent temple on that site, where really beautiful statues of Shri Rama, Sita and Lakshmana can be installed and which can become a focus of worship and devotion for the Hindus of the world ... I urge the Prime Minister to give his personal attention to this issue ... which should not be allowed to drag on indefinitely. (Noorani, The Babri Masjid Question, Vol. 1, 2003: p. 279)
In both cases, the Prime Minister turned a blind eye. On 15 February 1987, Atal Bihari Vajpayee suggested in a speech in Mumbai that Muslims should give up their claim to the Babri Masjid and hand it over to the Hindus as a gesture of goodwill and respect for their sentiments, while Hindus should reciprocate by allowing the structure to stand as it is while constructing a temple adjoining it befitting Ram Janmabhoomi (Ibid., p. 279).
The main difference between Shahabuddin’s proposal and Vajpayee’s suggestion was that under the latter, the Masjid was to be handed over to the Hindus and they were to look after its maintenance, while under the former, the Masjid was to be taken over by the Central government. Understandably, Muslims would have been apprehensive about handing over the Masjid to Hindus, particularly with the history of Hindus clandestinely placing idols in the Masjid in December 1949. They would not have been confident that it would remain a Masjid and Hindus would not encroach on it. But, in both proposals, the idea was to have a Ram temple constructed on the Ram Chabutra.
Vajpayee reiterated this view in the meeting of leaders of political parties convened by Buta Singh, the then Home Minister, on 16 May 1989, and said that the dispute could not be solved in the court of law and it should be solved with goodwill from both sides. He also said that the site should be handed over to Hindus, who as a goodwill gesture, should maintain the structure as it is without there being any worship by either community. A temple and a mosque should be built nearby the disputed shrine (The Indian Express, 17 May 1989, quoted in Noorani, The Muslims of India, 2003: 261-2).
Now it was the turn of Kamlapati Tripathi, a senior Congress leader, to step in. In his letter to the Prime Minister Rajiv Gandhi dated 24 March 1989, Tripathi stated:
It will not be in the interest of the country if the RJB-BM dispute goes further. In my opinion, the RJB-BM complex may be declared a national monument and I appeal to the Hindus and Muslims to accept this as such. A settlement through the court appears impossible. It is not possible that both parties will accept the verdict of the court, in case it goes against one of them. If this dispute continues, the possibilities of the division of the country will increase. (Noorani, The Babri Masjid Question, Vol. 1, 2003: p. 280)
Thus it was during Rajiv Gandhi’s prime ministership that several workable suggestions were received for solving the problem. This may have been partly because political positions on either side had not yet been hardened. If the alternatives therein had been seriously explored by taking political initiative at the Prime Minister’s level, the Babri Masjid could have been saved and a new Ram temple could also have been constructed. However, Rajiv Gandhi remained focussed 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, and even starting the Congress Party’s Lok Sabha election campaign from Ayodhya to usher in Ram Rajya.
I would unhesitatingly call Rajiv Gandhi the second most prominent kar sevak, after Nayar, the district magistrate of Faizabad, who encouraged the clandestine placement of the Ram Lalla idol in the Babri Masjid on 22 December 1949. Against this background, it was surprising to read the ludicrous claim made by Rahul Gandhi that if someone from Nehru-Gandhi family was in power, the Babri Masjid could have been saved! India has paid a heavy price for these missed opportunities.
L.K. Advani, in his book, My Country, My Life wrote he had :
offered to the Muslim leaders that he would personally request leaders of the VHP to relinquish their demand on the Hindu shrines in Mathura and Varanasi if the Muslim claim over Ramjanmabhoomi was voluntarily withdrawn, paving the way for the construction of the Ram Temple. I was deeply disappointed when Muslim leaders rejected this offer. I had proposed this compromise after much reflection. After all, anyone who is even cursorily familiar with the sites of the Hindu temples at Kashi and Mathura would aver that the presence of mosques inside these shrines can only be the result of a deliberate religious assault. Therefore, not to press the demand for shifting the mosques out of the precincts of these holy shrines was a major goodwill gesture towards Muslims. By refusing to compromise, the AIBMAC leaders once again showed their obstinacy, insensitiveness and fanaticism.
It was Advani’s assessment that:
the average Muslim, who in any case had no emotional attachment to the Babri Masjid, would not mind relocation of the mosque to some other site to pave the way for construction of the Ram Temple in its place. I was really annoyed that the AIBMAC leaders did not reflect the widespread desire for reconciliation among common Muslims. (Advani 2008: p. 371)
This showed that even the tallest Ayodhya movement leader of the BJP was unaware of how strong the feelings of Muslims were on this subject. It showed that the politicisation of these issues had taken deep roots among both Hindus and Muslims.
In early 1990, the V.P. Singh government attempted to solve the dispute by initiating a proposal in which the disputed structure and the site would be handed over to a new Hindu trust on the condition that it would build the Ram temple without disturbing the then existing structure and a wall would be constructed between the temple and the disputed structure.
According to Advani:
S Gurumurthy had suggested a three-point solution to Prime Minister V.P. Singh: (1) The total land of the proposed temple complex is around 70 acres, of which only 2.5 acres are disputed. The remaining 67 acres, on which Shilanyas was performed in 1989 with the approval of Rajiv Gandhi’s government, was undisputed. The proposal was that the Central government should acquire the entire disputed and undisputed area, and hand over sixty-seven acres of undisputed land to the Ramjanmabhoomi Nyas so that kar seva could be performed there; (2) The disputed structure would be retained by the Central government in an ‘as is’ condition with a thirty-feet area around it under its title and possession; (3) In respect of the disputed site, the Central government would make a single point reference to the Supreme Court under Article 143 of the Constitution, to give its opinion on whether there was at any time in the past a temple at the site which was destroyed and a mosque built in its place. Whether or not Ram was born there was not to be a part of the proposed reference. After all, no court could determine that issue. Accordingly, after consultations with all concerned, an ordinance was also issued by the government ... I could sense that the Prime Minister was either insincere or lacked the courage to withstand the pressures that he was subjected to from those who did not want an amicable solution to the dispute ... Comically, the government reversed its own decision the very same night. Apparently, the Prime Minister faced a threat from Mulayam Singh Yadav that he would not allow the ordinance to be implemented. The ordinance was withdrawn on 21 October . The news came as a big disappointment and betrayal to the leaders and followers of the temple movement. (Advani 2008: pp. 381-85)
The Ordinance dated 19 October 1990 vested the specified area in and around the Babri Masjid in the Central government. Importantly, the Ordinance also empowered the Central government ‘to direct vesting of the area in another authority’.
It is significant to note the change in the stand of the BJP and its affiliates on one important point. Earlier, they had claimed that Ram was born there and there was an ancient Ram temple at the site of the Babri Masjid. Now the advisory opinion was to be sought only on whether there was a temple on the site before the masjid was constructed.
Thus, when the Modi government applied in March 2019 to the Supreme Court for permission to hand over the ‘surplus and superfluous’ land to the original owners from whom it was acquired, it was following what was attempted by the V.P. Singh government at the behest of the BJP and its affiliates. But it needs to be noted that the V.P Singh government was a National Front government which was being supported from outside, by even the leftists, including the CPI (M).
Advani had tried to score a debating point by ridiculing Narasimha Rao’s promise to rebuild the mosque, saying, ‘Ironically, he [Rao] was promising to ‘rebuild the mosque’ after he had allowed the kar sevaks to build the makeshift Ram temple! As a result, his party and he lost the trust of both Hindus and Muslims (Advani 2008: 405). I have brought out earlier how misleading this contention of Advani was.
After taking credit for demolition of the Babri Masjid by his Shiv Sainiks, Bal Thackeray had suggested, what according to him, was an ideal via-media to solve the ‘prolonged’ Ayodhya dispute—construct a national monument at the disputed site, allot separate sites for construction of Ram Mandir and a mosque and stop (sic) the damned dispute ... There could not be any better solution than this ... to ensure harmony between Hindus and Muslims in the country ... I would not budge from my current stand ... even in the event of the BJP and its allies coming to power at the Centre after the Lok Sabha polls (The Pioneer, 10 January 1998 quoted in Noorani, The Babri Masjid Question, Vol.2, 2003,: 190). I am not sure this solution would have been acceptable even to his own party, the Shiv Sena. And, this would have left both communities dissatisfied.
Atal Bihari Vajpayee, in his letter to Hiren Mukerjee dated 24 September 1989, had, with unbelievable foresight, written, even before the destruction of the Babri Masjid:
As regards the suggestion of making the entire complex a national monument, what will it commemorate if not religious fanaticism—destroying a place of worship of one faith and building one of another faith in its place. (Noorani, The Babri Masjid Question, Vol.1, 2003, pp. 314-315)
Pronouncements of Courts
The pronouncements of higher judiciary over the years show the disinclination of the courts to adjudicate on this subject. In its order dated 7 November 1989, the Allahabad High Court had felt compelled to observe, ‘it is doubtful that some of the questions involved in the suit are soluble by judicial process’ (GOI 1992: 28). The three-judge Bench of the Allahabad High Court had, on 27 July 2010, passed the following order: ‘Today, we discussed the possibility of amicable settlement of the dispute with different advocates. At present nothing substantial has come out; however, we have indicated to all the learned counsel that until the delivery of judgment they are at complete liberty to contact the officer on special duty (OSD)for formation of the Bench in case some possibility of compromise emerges.’ In August 2010, the Allahabad High Court asked lawyers from both sides to explore the option of mediation. Since no such compromise emerged, the court went ahead and decided the matter.
The Supreme Court had also expressed the same feeling in its judgment in the Ayodhya Reference case. The Court had observed, ‘This is a matter suited essentially to resolution by negotiations which does not end in a winner and a loser while adjudication leads to that end. It is in the national interest that there is no loser at the end of the process adopted for resolution of the dispute so that the final outcome does not leave behind any rancour in anyone’ (Dasgupta 1995: p. 59).
Reference must also be made to the judgment of the three- member Bench of the Allahabad High Court, Special Full Bench, delivered on 30 September 2010, which has raised a number of questions. Contrary to the decision of the Supreme Court in the Karnataka Board of Waqf, referred to later, the High Court decided to go into the historical claim of Hindus to the land. Justice Sudhir Agarwal has held that ‘the area covered by the central dome of the three domed structure, i.e. the disputed structure, being the deity of Bhagwan Ram Janmasthan and place of birth of Lord Ram, as per faith and belief of the Hindus, belong to the plaintiffs in Suit- 5 and shall not be obstructed or interfered in any manner by the defendants’ (Malhotra 2010: 8). Justice Dharam Veer Sharma has held that ‘the Hindus have since times immemorial and for many generations consistently held in great esteem and reverence the Ram Janmasthan in Ayodhya where they believe Sri Ram was born, this at once requires an understanding and recognition of the Hindu concept of deity... (Noorani 2014: p. 98).
One point on which all three judges agreed was that the area should be split among the three parties, namely, Hindus, Muslims and Nirmohi Akhara as the joint title holders of the property in dispute. Strictly, this does not appear to be a judicial verdict but, more an effort to meet the demands of all the contending parties. I have serious doubts if the judgment can withstand scrutiny and would be upheld by the Supreme Court. But the Prelude to the judgment of Justice S.U. Khan is poetic:
Here is a small piece of land (1500 square yards) where angels fear to tread. It is full of innumerable land mines. We are required to clear it. Some very sane elements advised us not to attempt that. We do not propose to rush in like fools lest we are blown. However, we have to take risk. It is said that the greatest risk in life is not daring to take risk when occasion for the same arises. Once angels were made to bow before man. Sometimes he has to justify the said honour. (Noorani 2014: p. 48)
And so is the Epilogue of the judgment:
My judgment is short, very short. Either I may be admired as an artist who knows where to stop, particularly in such a sensitive, delicate matter, or I may be castigated for being casual in such a momentous task. Sometimes patience is intense action, silence is speech and pauses are punches.
I have not delved too deep into the history and the archaeology. This I have done for four reasons. Firstly, this exercise was not absolutely essential to decide these suits. Secondly, I was not sure as to whether at the end of the tortuous voyage I would have found a treasure or faced a monster (treasure of truth or monster of confusion worst confounded). Thirdly, having no pretence of knowledge of history, I did not want to be caught in the crossfire of historians. Fourthly, the Supreme Court in Karnataka Board of Waqf vs. Government of India, 2004 (10) SCC 779 has held in Para 8 as follows: ‘As far as title suit of civil nature is concerned, there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions’. (Noorani 2014: pp. 94-95)
In March 2017, the then Chief Justice of India, J.S. Khehar had asked the appellants ‘to first try to sit with each other and resolve it ... If you want some principal mediator, we can arrange it’.
The five-judge Constitution Bench which, after a long wait, took up appeals against the 30 September 2010 verdict of the Allahabad High Court, in its hearing on 26 February 2019 suggested mediation to find a solution to the RJB-BM dispute saying the court can only decide on property and what the court was looking at was ‘a possibility of healing relationships’. The court seemed to be considering a court-mediation under a court-appointed monitor,
and has asked the parties their opinion. ‘It is something we are considering seriously, as there is no private property involved. We would like to give a chance to mediation even if it’s one per cent success,’ the court is reported to have said (IE, 27 February 2019, p. 7).
The Supreme Court, in March 2019, appointed a three-member mediation panel to find an acceptable solution to the problem. Of the three mediators, only the appointment of Sri Sri Ravi Shankar has come in for criticism. But, from the larger perspective of increasing the acceptability of the mediation, I consider this an astute move by the Supreme Court.
In my article in India Legal (31 December 2018, p. 30), I had highlighted that this was not just a land or title issue:
Administrative decision-making in the Supreme Court has always been considered to be opaque by the stakeholders. For example, there are no ‘speaking orders’ on why and for how long hearing in important cases is put off. The Ram Janmabhoomi-Babri Masjid matter is a case in point. There is reason to believe that if the decision in this long pending case had not been put off, the Babri Masjid could have been saved from demolition by mob violence in 1992. The sudden postponement of the hearing in this case from November 2018 to January 2019, and that too not for a substantive hearing but only for deciding procedural and other issues, has led to a dangerous and virulent politicisation of the issue. It will be counterproductive to trivialise the importance of this case by treating it as just a land dispute. It is of utmost satisfaction that even on such an emotive and politically explosive issue, both sides, Hindus and Muslims, have been patiently waiting for the decision of the apex court. It is in national interest that this respect for the judiciary is not permitted to be undermined, consciously or unconsciously.
The Babri Masjid-Ram Mandir Dilemma—An Acid Test for India’s Constitution