Babri: Is there a way forward?

Rajeev Dhavan
Senior advocate, Supreme Court 

Is the Babri masjid-Ram mandir a legacy for resolution in this millennia? Destruction of Babri masjid on December 6, 1992, is the biggest blot on India’s multi-religious and cultural portrait. India has the biggest diversity, more than Europe, the Middle East, Africa, America, and the Far East put together. Its demography makes it the largest Hindu, one of the largest Muslim, a fairly large Christian, Buddhist and Jain civilisation state, with hundreds of other faiths and multiplicity of language, dialects, art, culture and music. This uniqueness is under siege by bigotry religious and ethnic cleaning, riots, ghar wapsis, lynchings masquerading death. Terrorism exists amongst some Muslims and is punishable, but nothing near the collective onslaught of the Sangh Parivar on India itself and its minorities with animus and cruelty. Is there an ‘India’ we want to protect? Or do we want to go down the route of Pakistan? India forms the greatest civilisational experiment in diversity the world has ever known. 

For a legal perspective, let us go back to 1855 when Muslims claimed that Hanumangarhi replaced a mosque. The Muslims were routed. Different reports came from nawabs and British committees. Having given grants to all, the nawabs moved the capital to Lucknow and were absorbed into the Empire. In 1857, Nihang Sikhs were evicted from Babri. Tension came from the Bairagis, who were made to pay compensation to the mosque. The British recognised the mosque with grants; and an 1885 case confirmed Muslim titles, with some worship rights to the Hindus. The story moves to attempts to destroy the mosque in 1934, which was rebuilt. In 1949, idols trespassed into the mosque claiming divine intervention. Locks opened less miraculously in 1986, the mosque was destroyed in 1992 with riots to follow. In 1994, the Supreme Court prescripted a resolution by court through law, with the Union government as statutory receiver, and with UP to remain neutral. 

The Lucknow judgment was unsatisfactory to all. One-third each of the site went to the Deity, Nirmohi Akhara and Waqf, in a judgment across 8,000 pages in foolscap and over 4,000 pages in small print in three volumes. It was a ‘panchayati judgment’. Everyone appealed. The Lucknow decision provided no decisive answers. The only resolution by ‘law’ was a first appeal to the Supreme Court. If it is a mere title suit, the Muslim case is strong. But the Lucknow court drifted into innumerable questions of ancient texts, unreliable accounts of travellers and archaeology revealing conjecture. In 2018, the Supreme Court’s record was still not in order. Even in January 2019, the office report shows the Hindu parties are still in default. After flagging the ‘reference’ on Justice Verma’s unfortunate sentence on mosques being unessential to Islam obviating protection, I told the court that I was ready, on that very day, to begin the main argument. How long will a first appeal on a judgment of 8,000 pages, with a further over a hundred volumes of evidence, take? If the solution is to follow legality, justice appeals cannot be heard slipshod. A schedule is workable. The fate of India as a nation depends on it. 

Hindu fundamentalists have always relied on a coercive solution. Attacking the masjid in the 19th century, trying to destroy it in 1934, trespass in 1949, massive rath yatras and destruction in 1992, after which the mob cried ‘mandir banega’. Given the Central government’s judicial duty to remain, is it not Modi’s duty to declare that he was bound by the court’s decision? Defying this, the BJP and the Sangh Parivar can think of only one solution — coercion, coercion, coercion. The cry for legislation is doubtful in law and majoritarian coercion. The legislative cannot sit in appeal over the Supreme Court. The vast celebration in Ayodhya on December 6 was coercive. The attempt to abolish Faizabad district is coercion. The threatening cry of the so-called sants is coercion. To link it with politics is coercion. Coercion is not an answer. The stampede of demands with violence is not just to Muslims, but to the whole country, to accept Hindu supremacy, or relent. Of course the Religious Worships Act of 1991 preserves status quo on all other sites. But will coercive solutions follow on other sites?

In the records of the conciliation meetings before the destruction, Muslims clarified that if there was any tangible proof that Lord Ram was born on that spot, they would yield. No proof emerged. Nor, in my view, was temple destroyed to build a mosque at that spot. The Hindus are not sure, even suggesting Aurangzeb destroyed the temple. The ‘belief’ that Lord Ram was of Ayodhya is a sustainable myth. The fact that Babri existed and destroyed is not a myth. This now becomes a blinking game. Will the Muslims build a mosque somewhere else? Will the Hindus build a temple elsewhere? Our perspective has to start from 1947. Mosques cannot be vindictively destroyed and shifted at will. To rebuild what  existed post 1947 is a statutory constitutional and moral duty. The Hindus have enough land to build a temple or even several temples in Ayodhya. If a temple has to be built, let it coexist — the mosque where it stood and the temple nearby. The entry of the Deity into the case as a ‘minor’ in 1989 blocks solutions. Is Lord Ram a minor claiming Ayodhya or the world? If there is some play here, examine it. Or abide by the legal solution. The Sangh Parivar will not abide by an adverse legal result, which the Muslims will accept. Lord Ram gave up Ayodhya to interact with many cultures, pledging them to peace. In this kalyug, Lord Ram would say: ‘Build the temple anywhere if you must, but protect all my people of all faiths’. Is not that Ram Rajya?

Appears for Muslims in the Babri masjid case