Ayodhya

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[size="5"]FAITH AND LAW AS BASIS IN AYODHYA JUDGMENT[/size]

October 26, 2010 by janamejayan



[size="4"]SUBRAMANIAN SWAMY[/size]

[The author is a former Union Law Minister and also the Convenor of the Legal and Parliamentary Cells of the Hindu Dharma Acharya Sabha].



True and devout Hindus believe that Bhagvan Sri Rama was born in Ayodhya, the then capital of a flourishing kingdom of the Suryavamsa dynasty. Rama is venerated as Maryada Purushottam, and worshipped by Hindus. Regarded as an avatar of Vishnu, Sri Rama was also the first truly national king of India, supra region, varna, and jati. That is why even poet Iqbal called him ‘Imam-e-Hind’.

The exact spot of the palace where Rama was born has been and remains firmly identified in the Hindu mind, and is held as sacred. This is the very area where stood from 1528 till December 6, 1992 a structure that came to be known as Babri Masjid, put up in 1528 by Babar’s commander Mir Baqi.



In fact, Baqi was a Shia Muslim, and hence he intended it to be a place for Shias to read namaz. Today, interestingly, the Shia clerics have made it clear to Hindu organizations that they would agree to have the site restored as a Ramjanmabhoomi. It is the Sunni Wakf Board, which entered the legal dispute as late as 1961, that has been litigating in the court claiming the title to the land on which the structure once stood.



This claim framed as Issue No.20 in Suit No.4 [filed by the Sunni Wakf Board against Gopal Singh Visharad] has now been rejected by all three judges of the said Ayodhya Dispute Bench. The issue was framed as follows:



Whether the Waqf in question cannot be a Sunni Waqf as the building was constructed by Mir Baqi who was a Shia Muslim.

Whether the Mutwalli of the mosque not having joined in the suit, the said suit is not maintainable for relief of possession of the disputed structure [a “structure” since it cannot be strictly called a mosque by Sunni edicts-- because it did not have the mandatory minarets and wazu (water pool)].



All three Judges held that the Sunni Waqf Board has no locus standi and that their Suit for title and possession is not maintainable and thus stood dismissed. As far as the successor and descendant Mutwalli of today, also a Shia, is concerned, he lives in Ayodhya and wants to build a masjid across the Saryu river thus vacating the 67 acres of the Ramjanma bhoomi for a Ram temple. The Sunni Muslims are therefore sheer interlopers in this dispute.



That a Ram temple existed and or that there is a sacred spot known as Ramjanmabhoomi, is attested by many sources.



In Skanda Purana [Chapter X, Vaishnav Khand] the site is vivdly described. Valmiki Ramayana also describes beautifully. Less than two decades before Mir Baqi carried out the horrible demolition of the Ram Temple, Guru Nanak had visited the Ramjanmabhoomi and had darshan of Ramlala in the mandir at the spot.



There are many commentaries on this visit which are a part of the Sikh scriptures. Guru Nanak himself records in 1521 the barbarity of Babar’s invasions [in Guru Granth Sahib at p.418]. In Akbar’s time, Abul Fazal wrote the Ain-i-Akbari in which he describes Ayodhya’s fame as the place of “Ram Chandra’s residence who in Treta age combined spiritual supremacy and Kingship” [Tranlated by Col. H.S. Jarrett and published in Kolkata in 1891].



In Chapter X of the Report of the Archeological Survey of India, NW., and Oudh (1889) it is mentioned (p.67) that Babri Mosque “was built in AD 1528 by Mir Khan on the very spot where the old temple of Janmasthan of Ram Chandra was standing.”



Hindus have throughout foreign occupation of India have deeply held as sacred that exact spot where the Babri Masjid once stood, as is recorded in many official and judicial proceedings. In 1885, for example, Mahant Raghubar Das in a Suit No 61/280 of 1885 filed in the Court of the Faizabad Sub-Judge against the Secretary of State for India (who was based in London), prayed for permission to build a temple on the chabutra outside the mosque. His suit was dismissed on March 18, 1886.



However, in his Order the Sub-Judge, an Englishman, however stated: “ It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindus. But as the event occurred 358 years ago, it is too late now to remedy the grievance.” Since the English as policy never sought to disturb the social status quo in India as evidenced, for example, on the ‘Sati’ question, the Judge took the easy way out and dismissed the Suit.



It is now well established by GPRS- directed excavations done under the Allahabad High Court direction and the subsequent monitoring of, and verification by the ASI in 2002-03 through excavations, that a large temple did exist below where that Babri Masjid structure once stood. Inscriptions found there also describe it as a temple of Vishnu Hari who had killed the demon king Dasanan [Ravana].



The Sunni Wakf Board does not accept these findings as meaning anything. They question how the Judges could have held that faith was more important in deciding the issues than proven facts. Now the All India Muslim Law Board[AIMLB] has decided to enter as an impleaded party in appeal in the Supreme Court to challenge this basis of the High Court judgment. But ironically, AIMLB’s own basis is in safeguarding the Sharia law, which is faith based and not proven fact basis.



It does not however matter if all this was indeed so or not, since the law as it prevails today i.e., under Section 295 of the Indian Penal Code[IPC], faith in the sacredness of the site is prescribed as follows: “Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons, with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The offence under Section 295 IPC is cognizable and non-bailable, as well as non-compoundable.



That is, an offence under criminal law is committed if a body of persons hold something as sacred. It does not matter if the majority does or does not hold so. Nor can a court decide what is sacred and what is not. It can recognize that which is held sacred and no more. Only a body of persons can identify what is sacred. This was my argument in the Supreme Court while successfully blocking the destruction of the Rama Setu, held sacred by a billion Hindus. The Supreme Court accepted this argument.



This is the position in international law and which was argued skillfully by Senior Counsel G. Rajagopalan on behalf the Hindus before the Lucknow Bench. The Judges took note of his arguments and referred to it in their judgments. In particular, Justice Agarwal rhetorical asks as to how do we know that Christ was born in a particular spot in Bethlehem in Israel? Because four centuries after Christ’s resurrection, the mother of King Constantine of the Roman Empire dreamt that Christ was born there. This has been accepted on faith by all Christians today and that particular spot is regarded by all Christians as the birthplace of Christ.



Similarly, Al Aqsa and the Dome of the Rock in Israel is held sacred by Muslims because some Imams dreamt that Prophet Mohammed came on a horse there and ascended to heaven. This has now become the universal Islamic faith today, and thus Muslim demand from the Israelis that Al Aqsa be handed to them on that basis.



Recently, the Prime Minister, Dr. Man Mohan Singh asked the UNESCO to grant Heritage status to Manjuli island on the river Brahmaputra because it is held sacred by the people who believe that Lord Krishna and his Gopis danced there.



Even the atheistic DMK pleaded in the Supreme Court that the Madurai-based annual Jallikattu festival ban imposed by the Animal Welfare Board on ground of cruelty to bulls that are given a free run in a village while people taunt and poke at these bulls, resulting in injury and pain to the animals. The DMK-led state government’s counsel argued that banning would be taken by the Tamil masses that the Gods were angry with the people and that pestilence would follow. Thus, subject to some restrictions, the Supreme Court lifted the ban!



Hence, it has never been unusual for the Courts to regard faith as a basis for judicial decisions contrary to the ill-informed criticism on this score of the Ayodhya dispute judgment.



The fundamental question on the Ayodhya dispute before us is thus this: Can a temple and a masjid be considered on par as far as sacredness is concerned ? Relying on two important court judgments that hold the field today, the answer is: no, they are not ! A masjid is not an essential part of Islam, according to a majority judgment of a Constitution Bench of India’s Supreme Court.



In the famous Ismail Farooqui vs Union of India case[reported in (1994) 6 SCC 376], the Supreme Court had observed: “ It has been contended that a mosque enjoys a particular position in Muslim law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah…and any person professing Islamic faith can offer prayer in such a mosque, and even if the structure is demolished, the place remains the same where namaz can be offered .”[para 80].



The Constitution Bench rebutted this contention. The Bench stated: “ The correct position may be summarized thus. Under Mohammed law applicable in India, title to a mosque can be lost by adverse possession…A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India.”[para 82].



Thus what was wrong in the demolition of the Babri Masjid on December 6, 1992 was that it was unauthorized by law and hence a criminal offence. Otherwise any Government, if it decides to do so in the interest of public order, public health and morality [Article 25 of the Constitution], deprive the Muslims of the Babri or any other Masjid, it is within law.



This is the position in Islamic law as well since in Saudi Arabia the authorities demolish mosque to lay roads. Even the mosque where Islam’s Prophet Mohammed used to pray was demolished for a road to pass through !



But then what of a temple? Is it in the same category as the mosque in our jurisprudence? When I was Union Law and Justice Minister, this question of the status of a temple–even if in ruins or without worship–had come up before me in November 1990 in a case of a smuggled out bronze Nataraja statue which was up for sale in London.



The Government of India when Rajiv Gandhi was PM had decided to file a case in the London trial court in 1986 for recovery. The Nataraja statue had by then traced to a temple in ruins in Pathur, Thanjavur district. A farmer named Ramamoorthi had unearthed it 1976 while digging mud with a spade near his hut.



When the news spread, touts of an antique dealer by name Ahmed Hussein reached him and paid a small sum and smuggled it out to London, where in 1982 they sold it to Bumper Development Corporation Private Limited. In turn the said Corporation sent it to the British Museum for appraisal and possible purchase. By then the Government of India was onto it and asked the UK government to take action.



The Nataraja idol was seized by London Metropolitan Police, and thus the Corporation sued the Police in court for recovery but lost the case. An appeal was filed in the Queens Bench [our High Court level] which was dismissed on April, 17 1989. So, the Bumper Corporation went to the House of Lords [our Supreme Court level]. On February 13, 1991 when I was Law Minister, the judgment came which is truly landmark dismissing Bumper’s final appeal [ see (1991) 4 All ER 638].



The UK Apex Court upheld the Indian government’s position that because of the prana prathista puja a temple is owned by the deity, in this case Lord Shiva, and any Hindu can litigate on behalf of the deity as a defacto trustee. The Bench consisting of Justices Purchas, Nourse and Leggatt concluded : “We therefore hold that the temple is acceptable as party to these proceedings and that it is as such entitled to sue for the recovery of the Nataraja.” [page 648 para g].



Thus even if a temple is in ruins as was in this case, or as the ASI had found in Ramjanmabhoomi, a destroyed Ram Temple, any Hindu can sue on behalf of Lord Rama in court for recovery!



This is a re-affirmation of a 1925 Privy Council judgment in P.N. Mullick vs. P.K. Mullick case, wherein it was held that a Hindu idol in a temple “has a judicial status with a power of suing and being sued.”



No such ruling exists for a mosque for the simple reason that a mosque is just a facilitation centre for reading namaz, and has no essentiality for Islam religion. It can be demolished and/or shifted as any building can and are being so in Arab countries and Pakistan.



That is, the Ram Temple on Ramjanmabhoomi has a superior claim to the site than any mosque. This the fundamental truth in the Ayodhya dispute. This truth will apply to Kashi Vishvanath and Brindavan temples and other similarly placed sites as well.



Hindus can accept, if the Muslims community agrees, the shifting or the building of a new masjid to some other site beyond the Saryu River. It is important to note that as of now there are eight mosques in Ayodhya which the ASI has taken over since these had no one coming there to read namaz. Hence what use will another mosque in the Ramjanmabhoomi area be? The response for the proposal to build a mosque on the Ramjanmabhoomi site of 67 acres should be a resounding No !



If however the Muslim hardline organizations want to re-build the Babri Masjid in the Ramjanmabhoomi area, then the Hindus will have to resist and if necessary launch a struggle. A temple cannot be equated to a mosque. Therefore, as with the Shah Bano case precedent, Government should honour its affidavit or be forced by agitation, if necessary, to bring an amendment to the Acquisition of Certain Areas of Ayodhya Act of 1993 to bar constructing any structure other than those connected with a temple for Sri Rama.



This response would also be consistent with the assurance given by the Narasimha Rao government on a sworn affidavit before the Supreme Court in 1994, and which is recorded in the Ismail Faruqui judgment [cited above; refer page 427]. The Solicitor General of India stated on oath that if “a Hindu temple/structure did exist prior to the construction of the demolished structure, the Government action will be in support of the wishes of the Hindu community.”



That will be the fit atonement of the entire people of our nation for tacitly tolerating for so long the demolition of Ram Temple on the orders of Babur of Afghanistan. Babri, after whom the mosque is named, incidentally was a 9 year boy in Kabul who was a “special “ intimate of Babur.



If such an amendment is not brought forth, Hindus should wage a fierce democratic struggle for the next 3 ½ years to force the government to do so or weld a solid Hindu vote so that in the next General Election a Hindu Front supported by the Hindu Dharmacharyas, VHP and RSS can obtain an absolute majority in the Lok Sabha and foster Hindu renaissance in the country as Swami Vivekananda in 1893, Sri Aurobindo in 1909, and Swami

Chandrashekarendra Sarasvati in 1947 had wanted.



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