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AYODHYA JUDGEMENT OF THE ALLAHABAD HIGH COURT TRIUMPH FOR THE VIOLATORS OF LAW - Irfan Habib
A dramatic verdict was immediately delivered on the judgements of the Ayodhya Bench of the Allahabad High Court on September 30, 2010, when ahead of the release of their summaries at the official centre at Lucknow set up for the purpose, lawyers of the “Hindu” parties rushed in waving victory-signs and seizing the official microphones to announce how the Bench had rejected the opposite party’s case and restored lord Rama to his true birth-place. It only remained, said one of them, for the Muslims to give up the small share of land still left to them, to win reconciliation from the victors.
As the summaries and excerpts from the three separate judgements came in on the TV channels and the justifications for the operational part were analysed, nearly all serious observers were struck by the “astonishingly one-sided” nature of the decision, as one senior advocate of the Supreme Court immediately put it.
OBFUSCATING NATURE OF DISPUTE
The first and foremost matter of concern was the way the High Court has decided to handle what is essentially a property dispute. All the three judges have admitted that the idols were brought into the Babri Masjid, Ayodhya, on the night of December 22-23, 1949. Thereafter Muslims were denied entry into the Masjid by administrative orders and court injunctions — by virtue of which alone no property rights can be created. The essential point for the High Court should therefore have been to establish the facts of occupancy and possession as they were immediately preceding the incident of December 22-23, 1949 and so to adjudicate between the claims of the Sunni Wakf Board and the Nirmohi Akhara, the only possible title-holders.
The High Court has, however, relegated this essential issue to a very subordinate position and in all the judgements (especially those of judges Agrawal and Sharma) have treated the issue of Hindu faith in the exact birth-place (or rather birth-site) of lord Rama as the main decisive point.
And on this point their conclusion is definite: By Hindu faith lord Rama was born at the exact site where the idols are now placed — ie, under the erstwhile central dome of the Babri Masjid. Here, for one thing, they have lamentably failed to make what should be an elementary distinction, one between faith and propaganda. The general Hindu belief undoubtedly is that Ayodhya is the birth place of lord Rama; this is all that even Tulsidas in his Ramacharitmanas has to tell us. There is no proof at all that even in local lore until very recent times, lord Rama’s birth site was held to be at the spot of the Babri Masjid.
PLANTED INSCRIPTION
The Hindu Vishwa Parishad trumpeted the find of a Sanskrit inscription allegedly found by its karsevaks in the debris of Babri Masjid when they were forcibly demolishing it on December 6, 1992. This twelfth century inscription refers to a ‘Vishnu-Hari’ temple constructed by a local ruler, Ananyachandra, and the VHP presented this before the court as evidence of an earlier Ramjanmabhumi temple at the site. But the inscription nowhere refers to the site as lord Rama’s janmabhumi; it merely claims for the builder’s family the position of janmabhumi of valour! This was made clear by Dr K V Ramesh, former director (Epigraphy), ASI, and the VHP’s own witness before the court; and this rendering has also been given independently by Dr Pushpa Prasad, in a paper published in the Indian History Congress Proceedings, sixty-fourth session (2003). There is a legal rule that a party cannot question its own evidence: so, if this inscription was really found at the site, as the VHP claimed, this showed conclusively that, on its own showing, the temple builders nine hundred years ago (what to speak of time immemorial) were blissfully unaware that the site was lord Rama’s birth-place. (In fact, however, the inscription is a plant, the corresponding Lucknow Museum inscription having disappeared!)
Furthermore, it was shown in detail by Professor R S Sharma and his colleagues in their ‘Report to the Nation on Ramjanmabhumi-Babri Masjid’ (1991) that the place of Janmasthana as given in the ‘Ayodhya Mahatmya’ section of the Skanda Purana compiled in the sixteenth century or later does not at all suit the environs of Babri Masjid. In fact, it is placed by that authoritative text somewhere between Renamochana and Brahmakunda on the bank of the Sarayu. When on January 29, 1885 Mahant Raghubar Das brought a suit against the secretary of state (ie, the government), he merely sought to be allowed to build a small temple over the chabutra which alone was claimed to be the “Janam Asthan”. This was already in his control, and was stated to be no more than 21 by 17 feet in area, and situated outside the main courtyard of the Mosque. No claim at all was made on any part of the internal courtyard of the Masjid, let alone the part covered by its domes, to be part of the janmasthan.
RECENT ORIGIN OF THE CLAIM
The claim began to be made locally only after the riots of 1934, and especially after the night of December 22-23, 1949 when the idols were forcibly taken into the mosque and installed under the central dome. All the three judges acknowledge the fact of the forcible installation, but seemingly condone it as an act of faith. From the 1980’s onwards the VHP and RSS launched a nation-wide campaign to spread the claim that lord Rama’s birth-site was inside the Babri mosque, just where the idols had been forcibly installed. What was believed in by a few local enthusiasts was now through well-funded, well-organised propaganda, made into an article of faith for the true VHP believer. The Allahabad High Court seems to have assumed without proof that whatever VHP proclaims, all Hindus must necessarily believe in.
By accepting this deliberate ‘invention of tradition’ for capturing a mosque, the High Court has overlooked, of course, the other Hindu belief, far stronger and far more ancient, the belief in the benevolence and justice of lord Rama. Not only that, it has converted lord Rama into a juridical entity, a mere petitioner before itself, patently in order to legitimise the claims of VHP to act in the name of Bhagwan Sri Ram Virajman, and under that colour seek possession of the Babri Masjid site. The VHP- sponsored body filed a suit for the purpose only in 1989. In an ordinary case not only would this have been time-barred, but, since unlike the Nirmohi Akhara, the VHP had had no connection with either the idols nor with any part of the disputed land on which the idols had been worshipped before 1949, its claims to be a party in the suit should have been thrown out. But by a simple recognition of Ram Lala as a juridical entity, a baseless claim has been legally sanctified.
It is difficult to see how the court’s conferment of a juridical entity on a supernatural power can be regarded as consistent with our secular constitution. It is vain to cite the Privy Council’s assertion (in the Shahidganj Mosque case) of the superior position enjoyed by a temple-deity over a God-dedicated mosque, since that decision is in obvious conflict with Articles 15, 25 and 26 of our constitution and with the nature of our State as a secular republic (which the British Empire was not). At best one may say that temple-endowments existing at the time of the promulgation of the constitution (January 26, 1950) may continue to enjoy that privilege. But can the courts confer such privilege now upon a trust or endowment which did not exist at that time nor when the preamble of the constitution was amended (effective January 3, 1977) to incorporate the word “secular” in it?
The judges do not seem to have noticed that Mahatma Gandhi, the father of this nation, had a different vision of lord Rama than a petitioner seeking less than three acres of land from the High Court. His Ram, let it not be forgotten, was a universal God, so well defined in Gandhiji’s own Ramdhun: “Thy name is Ishwar as well as Allah; Let the lord give enlightenment to all”.
HISTORY & ARCHAEOLOGY
The High Court has also taken on itself to pronounce on matters of history and archaeology in order to question the very bonafides of the Babri Masjid, based on whether it was built on vacant land or immediately after demolishing a temple; and here too the judges’ conclusions are peculiar. Two of the three judges have dismissed the evidence of the builder’s Persian inscriptions in the Masjid, the most primary evidence under all canons of historical enquiry. These make it clear that the mosque was built by Mir Baqi, Babur’s commandant at Awadh (Ayodhya), in 1528, and do not refer to any destruction of a temple, which would surely have been mentioned if the builder had done it for purposes of glorification of his faith. As for the archaeological evidence for a temple beneath the mosque, the judges have accepted in toto the report drawn up by two little-known officials (Hari Manjhi and B R Mani) for the Archaeological Survey of India, an agency of the then BJP government, whose ministers were all the time proclaiming their commitment to the Ramjanmabhoomi movement.
All the grossly motivated misrepresentations and omissions of this report have been duly pointed out by a number of established archaeologists, many of whom appeared as witnesses before the court, but this appears to have made no impression upon the present Bench. Instead of fairly examining the substance of the objections, justice Sudhir Agrawal has found it fit to question the competence of these archaeologists whose reputation incidentally does not need any judicial sanction. On the other hand, the court has not considered the question whether under the BJP government any ASI officials, looking for promotion, could really be independent; nor did it look into their status or standing as archaeologists.
The court itself needs to justify an excavation, for which all the remaining vestiges of Babri Masjid, a 450-year old monument that should have been protected and preserved, have now been totally destroyed. As the SAHMAT statement, issued after the present judgement, has pointed out, what the ASI itself could not deny finding under the dug-up Masjid floor, namely, “the presence of animal bones throughout as well as the use of surkhi and lime mortar and glazed ware (all characteristic of Muslim presence), rule out the possibility of a Hindu temple having been there beneath the mosque.” The pillar-less “pillar bases” have been shown by their nature, alignment and levels to be mere figments of imagination, so that there is not the slightest evidence of a temple on the spot, whether “huge” (as ASI would have it) or small. A reader who wishes to pursue the fantasies that Manjhi and Mani (the latter now a joint director-general, ASI, duly promoted) put in their report, apparently given Biblical status by the High Court, may pursue the tale in Shereen Ratnagar and D Mandal, Ayodhya Archaeology after Excavation (2007), where many of the ASI’s large and little fabrications have been nailed down.
LEGITIMISING DEMOLITION
There is, finally, the question that is, perhaps, the most serious of all: The High Court’s easy acqueisance in the results brought about by manifestly criminal acts. The forcible trespass of 1949 when the images were placed under the central dome of the mosque, the closure of the mosque to Muslims thereafter, by fiat of administration and courts, the destruction of the Mosque by mobs of karsevaks under the aegis of the VHP and Advani & Co on December 6, 1992 — in defiance, let it be recorded, of the orders of the Supreme Court itself — are all acts that have called forth no censure from this Bench. As T R Andhyarujina, a former solicitor-general of India, has pointed out (The Hindu, October 3, 2010), the court has entirely ignored the “elementary rule of justice…. that when a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage (as the demolition in 1992 did in favour of the Hindu plaintiffs), the court would first order the restitution of the pre-existing state of affairs.” He further noted that “the absence of any condemnation of the demolition of the Babri Masjid on December 6, 1992 is a conspicuous aspect of the Ayodhya verdict of the Allahabad High Court.”
Indeed, the court, while recognising that the idols were placed inside the Mosque under the central dome only in 1949 has given full legitimacy to that act by insisting that the idols would remain there and that the particular part of the ground must go to the VHP-sponsored trust. The entire demolition of the Masjid has in effect been treated by the court as an advantageous deed for creating the conditions necessary for its decision to transfer two-thirds of the disputed land in equal shares to the VHP and the Nirmohi Akhara. This, Andhyarujina points out, would not have been possible had the Masjid structure remained in existence and not made into levelled vacant ground. What else can one say of it all except that it is an absolute legitimation granted by the Allahabad High Court to the 1992 Babri Masjid demolition? Perhaps, the High Court’s Judges did not care to read the Supreme Court’s own judgement of 1994 where the demolition was described as “an act of national shame”.
Some well-intentioned persons are now speaking of the need to shift focus from further litigation (ie, appeal to the Supreme Court) to a negotiated settlement between the Hindu and Muslim bodies concerned. They seem to forget that there is a third party too, an entity identified in the constitution (not just by any court): the People of India, who gave to us our constitution, that enjoins us in its very preamble to safeguard the cause of justice, liberty, equality and fraternity and to keep India a secular republic. The Allahabad High Court judgement seems to violate every principle enshrined in the preamble. It is vital for the Supreme Court to ensure that all courts below it do their duty by the People of India; and no effort at ‘reconciliation’ should be allowed to impede the effort to get a manifest wrong set right through the only recourse now available in the process of law.
Courtesy: www.pd.cpim.org
The claim began to be made locally only after the riots of 1934, and especially after the night of December 22-23, 1949 when the idols were forcibly taken into the mosque and installed under the central dome. All the three judges acknowledge the fact of the forcible installation, but seemingly condone it as an act of faith. From the 1980’s onwards the VHP and RSS launched a nation-wide campaign to spread the claim that lord Rama’s birth-site was inside the Babri mosque, just where the idols had been forcibly installed. What was believed in by a few local enthusiasts was now through well-funded, well-organised propaganda, made into an article of faith for the true VHP believer. The Allahabad High Court seems to have assumed without proof that whatever VHP proclaims, all Hindus must necessarily believe in.
By accepting this deliberate ‘invention of tradition’ for capturing a mosque, the High Court has overlooked, of course, the other Hindu belief, far stronger and far more ancient, the belief in the benevolence and justice of lord Rama. Not only that, it has converted lord Rama into a juridical entity, a mere petitioner before itself, patently in order to legitimise the claims of VHP to act in the name of Bhagwan Sri Ram Virajman, and under that colour seek possession of the Babri Masjid site. The VHP- sponsored body filed a suit for the purpose only in 1989. In an ordinary case not only would this have been time-barred, but, since unlike the Nirmohi Akhara, the VHP had had no connection with either the idols nor with any part of the disputed land on which the idols had been worshipped before 1949, its claims to be a party in the suit should have been thrown out. But by a simple recognition of Ram Lala as a juridical entity, a baseless claim has been legally sanctified.
It is difficult to see how the court’s conferment of a juridical entity on a supernatural power can be regarded as consistent with our secular constitution. It is vain to cite the Privy Council’s assertion (in the Shahidganj Mosque case) of the superior position enjoyed by a temple-deity over a God-dedicated mosque, since that decision is in obvious conflict with Articles 15, 25 and 26 of our constitution and with the nature of our State as a secular republic (which the British Empire was not). At best one may say that temple-endowments existing at the time of the promulgation of the constitution (January 26, 1950) may continue to enjoy that privilege. But can the courts confer such privilege now upon a trust or endowment which did not exist at that time nor when the preamble of the constitution was amended (effective January 3, 1977) to incorporate the word “secular” in it?
The judges do not seem to have noticed that Mahatma Gandhi, the father of this nation, had a different vision of lord Rama than a petitioner seeking less than three acres of land from the High Court. His Ram, let it not be forgotten, was a universal God, so well defined in Gandhiji’s own Ramdhun: “Thy name is Ishwar as well as Allah; Let the lord give enlightenment to all”.
HISTORY & ARCHAEOLOGY
The High Court has also taken on itself to pronounce on matters of history and archaeology in order to question the very bonafides of the Babri Masjid, based on whether it was built on vacant land or immediately after demolishing a temple; and here too the judges’ conclusions are peculiar. Two of the three judges have dismissed the evidence of the builder’s Persian inscriptions in the Masjid, the most primary evidence under all canons of historical enquiry. These make it clear that the mosque was built by Mir Baqi, Babur’s commandant at Awadh (Ayodhya), in 1528, and do not refer to any destruction of a temple, which would surely have been mentioned if the builder had done it for purposes of glorification of his faith. As for the archaeological evidence for a temple beneath the mosque, the judges have accepted in toto the report drawn up by two little-known officials (Hari Manjhi and B R Mani) for the Archaeological Survey of India, an agency of the then BJP government, whose ministers were all the time proclaiming their commitment to the Ramjanmabhoomi movement.
All the grossly motivated misrepresentations and omissions of this report have been duly pointed out by a number of established archaeologists, many of whom appeared as witnesses before the court, but this appears to have made no impression upon the present Bench. Instead of fairly examining the substance of the objections, justice Sudhir Agrawal has found it fit to question the competence of these archaeologists whose reputation incidentally does not need any judicial sanction. On the other hand, the court has not considered the question whether under the BJP government any ASI officials, looking for promotion, could really be independent; nor did it look into their status or standing as archaeologists.
The court itself needs to justify an excavation, for which all the remaining vestiges of Babri Masjid, a 450-year old monument that should have been protected and preserved, have now been totally destroyed. As the SAHMAT statement, issued after the present judgement, has pointed out, what the ASI itself could not deny finding under the dug-up Masjid floor, namely, “the presence of animal bones throughout as well as the use of surkhi and lime mortar and glazed ware (all characteristic of Muslim presence), rule out the possibility of a Hindu temple having been there beneath the mosque.” The pillar-less “pillar bases” have been shown by their nature, alignment and levels to be mere figments of imagination, so that there is not the slightest evidence of a temple on the spot, whether “huge” (as ASI would have it) or small. A reader who wishes to pursue the fantasies that Manjhi and Mani (the latter now a joint director-general, ASI, duly promoted) put in their report, apparently given Biblical status by the High Court, may pursue the tale in Shereen Ratnagar and D Mandal, Ayodhya Archaeology after Excavation (2007), where many of the ASI’s large and little fabrications have been nailed down.
LEGITIMISING DEMOLITION
There is, finally, the question that is, perhaps, the most serious of all: The High Court’s easy acqueisance in the results brought about by manifestly criminal acts. The forcible trespass of 1949 when the images were placed under the central dome of the mosque, the closure of the mosque to Muslims thereafter, by fiat of administration and courts, the destruction of the Mosque by mobs of karsevaks under the aegis of the VHP and Advani & Co on December 6, 1992 — in defiance, let it be recorded, of the orders of the Supreme Court itself — are all acts that have called forth no censure from this Bench. As T R Andhyarujina, a former solicitor-general of India, has pointed out (The Hindu, October 3, 2010), the court has entirely ignored the “elementary rule of justice…. that when a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage (as the demolition in 1992 did in favour of the Hindu plaintiffs), the court would first order the restitution of the pre-existing state of affairs.” He further noted that “the absence of any condemnation of the demolition of the Babri Masjid on December 6, 1992 is a conspicuous aspect of the Ayodhya verdict of the Allahabad High Court.”
Indeed, the court, while recognising that the idols were placed inside the Mosque under the central dome only in 1949 has given full legitimacy to that act by insisting that the idols would remain there and that the particular part of the ground must go to the VHP-sponsored trust. The entire demolition of the Masjid has in effect been treated by the court as an advantageous deed for creating the conditions necessary for its decision to transfer two-thirds of the disputed land in equal shares to the VHP and the Nirmohi Akhara. This, Andhyarujina points out, would not have been possible had the Masjid structure remained in existence and not made into levelled vacant ground. What else can one say of it all except that it is an absolute legitimation granted by the Allahabad High Court to the 1992 Babri Masjid demolition? Perhaps, the High Court’s Judges did not care to read the Supreme Court’s own judgement of 1994 where the demolition was described as “an act of national shame”.
Some well-intentioned persons are now speaking of the need to shift focus from further litigation (ie, appeal to the Supreme Court) to a negotiated settlement between the Hindu and Muslim bodies concerned. They seem to forget that there is a third party too, an entity identified in the constitution (not just by any court): the People of India, who gave to us our constitution, that enjoins us in its very preamble to safeguard the cause of justice, liberty, equality and fraternity and to keep India a secular republic. The Allahabad High Court judgement seems to violate every principle enshrined in the preamble. It is vital for the Supreme Court to ensure that all courts below it do their duty by the People of India; and no effort at ‘reconciliation’ should be allowed to impede the effort to get a manifest wrong set right through the only recourse now available in the process of law.
Courtesy: www.pd.cpim.org
Tuesday, October 12, 2010
Friday, October 8, 2010
Monday, October 4, 2010
AYODHYA VERDICT YET ANOTHER BLOW TO SECULARISM: SAHMAT - THE HINDU DATED 03-10-10
New Delhi: The Safdar Hashmi Memorial Trust (Sahmat) on Saturday said the verdict on the Ayodhya dispute was a blow to secularism and the reputation of the judiciary.
In a statement, the Sahmat said: “The judgment delivered by the Lucknow Bench of the Allahabad High Court in the Ram Janmabhoomi-Babri Masjid Dispute on 30 September 2010 has raised serious concerns because of the way history, reason and secular values have been treated in it.
“First of all, the view that the Babri Masjid was built at the site of a Hindu temple, which has been maintained by two of the three judges, takes no account of all the evidence contrary to this fact turned up by the Archaeological Survey of India's own excavations: the presence of animal bones throughout as well as of the use of ‘surkhi' and lime mortar (all characteristic of Muslim presence) rule out the possibility of a Hindu temple having been there beneath the mosque.
“The ASI's controversial Report which claimed otherwise on the basis of ‘pillar bases' was manifestly fraudulent in its assertions since no pillars were found, and the alleged existence of ‘pillar bases' has been debated by archaeologists. It is now imperative that the site notebooks, artefacts and other material evidence relating to the ASI's excavation be made available for scrutiny by scholars, historians and archaeologists.
“No proof has been offered even of the fact that a Hindu belief in Lord Rama's birth-site being the same as the site of the mosque had at all existed before very recent times, let alone since ‘time immemorial.' Not only is the judgment wrong in accepting the antiquity of this belief, but it is gravely disturbing that such acceptance should then be converted into an argument for deciding property entitlement. This seems to be against all principles of law and equity.
“The most objectionable part of the judgment is the legitimation it provides to violence and muscle-power. While it recognises the forcible break-in of 1949 which led to placing the idols under the mosque-dome, it now recognises, without any rational basis, that the transfer put the idols in their rightful place. Even more astonishingly, it accepts the destruction of the mosque in 1992 (in defiance, let it be remembered, of the Supreme Court's own orders) as an act whose consequences are to be accepted, by transferring the main parts of the mosque to those clamouring for a temple to be built.
“For all these reasons we cannot but see the judgment as yet another blow to the secular fabric of our country and the repute of our judiciary. Whatever happens next in the case cannot, unfortunately, make good what the country has lost.”
The statement has been signed by Romila Thapar, K.M. Shrimali, K.N. Panikkar, Irfan Habib, Amiya Kumar Bagchi, Suvira Jaiswal, M.K. Raina, Vivan Sundaram, Utsa Patnaik, Zoya Hasan, Prabhat Patnaik, C.P. Chandrasekhar, Jayati Ghosh, Geeta Kapur and 47 others.
The statement has been signed by Romila Thapar, K.M. Shrimali, K.N. Panikkar, Irfan Habib, Amiya Kumar Bagchi, Suvira Jaiswal, M.K. Raina, Vivan Sundaram, Utsa Patnaik, Zoya Hasan, Prabhat Patnaik, C.P. Chandrasekhar, Jayati Ghosh, Geeta Kapur and 47 others.
Source: www.thehindu.com
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