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Published in the 1-15 December 2004 print edition of MG; send me the print edition

INTERVIEW: Zafaryab Jilani

'Five prime ministers orbited around Babri Masjid'
Zafaryab Jilani, is the pivot around whom the campaign for Babri Masjid revolves and even rotates. Ever since the locks of the mosque were opened on Feb. 1, 1986 the activist-lawyer is in the fray working relentlessly for the restoration of the mosque to Muslims. Rizvi Syed Haider Abbas, talks to him about the developments on the issue on the eve of the 12th anniversary of Babri Masjid demolition on Dec 6, 1992. Zafaryab Jilani did his Masters in Law from Aligarh Muslim University and serves as a legal advisor to All India Muslim Personal Law Board (AIMPLB). Excerpts:

How far do you think that, had the Shah Bano case not happened the locks of Babri Masjid would not have opened? 
It cannot be categorically said because the efforts of Vishwa Hindu Parishad (VHP) and some other organisations had begun prior to that, that is around 1983 and some Congress leaders like Dau Dayal Khanna etc. were also involved in that movement. At that time PM Mrs. Indira Gandhi was being advised by some of her partymen like Dr. Karan Singh that she should not depend much upon Muslims as they had already opposed her in 1977 general elections causing her rout and as such she was not opposed to the movement lodged by Mahant Avaidnath and Dau Dayal Khanna etc. for opening the locks of Babri Masjid for darshan and puja (worshipping) of the idol kept inside the Babri Masjid since Dec 23rd 1949.

Please very briefly elaborate on Shah Bano case?
The case originated in a petition by Begum Shah Bano in 1978, she had, after 43 years of marriage been divorced by her husband in 1975. In her appeal she claimed her right to maintenance under section 125 of Cr. PC. The Judicial Magistrate Court of Indore ruled in favour of the appellant and set the maintenance at Rs 25 per month. The High Court of Madhya Pradesh upheld the decision of the lower court and raised the sum to Rs 179 per month. An appeal was filed and the case was decided by the Supreme Court (SC) in 1985. 

VHP has always taken a stand not to abide by the courts verdict in the case of Babri Masjid the way Muslims did not in the Shah Bano case? 
The Muslim side was totally against the Shah Bano judgement except for a few individuals like Arif Mohammad Khan etc. The opposition by Muslim was mainly because they did not consider the SC competent to interpret the Quran as the view of the SC was that religious books could be interpreted by the religious scholars only and their interpretation was to be followed by the courts, subsequently even the then Chief Justice who had passed the Shah Bano judgement had also admitted that he had committed a mistake in giving his own interpretation on the bases of an English translation of the Quran only. And, Muslims did not disobey the courts order in the Shah Bano case but rather they had demanded a legislative correction of the same for which parliament was competent and accordingly parliament had passed the Muslim Women Protection of Rights on Divorce Act in 1986. Parliament can lay down the bases of a law regarding interpretation of some pre-existing law but it cannot decide a question of fact which is the prerogative of a court of law only.

Can a legislation be brought in parliament for the construction of temple in place of Babri Masjid?
It is not possible and specially so because the matter is already subjudice and the SC has already directed the High Court to decide the cases related to Babri Masjid and to hand over the site-in-dispute to the winning party. This view had been taken by the SC in its judgement delivered on Oct 24,1994 in Ismail Farooqui Vs Union of India case. When the Court will decide the question of ownership in favour of one party, parliament cannot change the verdict in favour of the other party. Even if any such law is passed contrary to the verdict of SC the same is likely to be set aside by the SC.

Is making LK Advani the BJP president again is a signal for temple politics? 
BJP has thrived on temple issue so for them it is nothing new but the Hindu masses are not likely to give support to BJP this time on this temple issue because they are convinced that BJP is not interested in construction of temple but for using it for electoral harvests.

LK Advani has ruled out courts verdict and constitutional route for settlement of the issue. He has claimed to be negotiating with Muslim leaders for solving it. 
No negotiations are going on with the Muslim leaders and there is no chance of the matter being resolved through negotiations and this claim is a farce.

Well, how far do you think the day-to-day hearing has helped the case?
(Takes a long breath) It is only because of day-to-day hearing that the case has reached the final stage and it is likely that the evidence of the parties may be over in this next few months and then arguments will be heard and the case will be decided. Muslims have been demanding day-to-day hearing right from Feb. 1986 had the case proceeded on such basis it would have been over. The then Home Minister Buta Singh had assured in 1987 that he would try to get the cases transferred to High Court (HC) and to get them decided on day-to-day basis and for that purpose an application was also moved by the state of UP in Dec 1987 for transfer of all the cases to HC but thereafter nothing concrete was done and the matter was again taken up only in May 1989 and ultimately the cases were transferred to HC in July 1989 but by then the elections had been declared and Congress was defeated because of Shilanyas which was maneuvered by Buta Singh at the disputed site and as such the matter of day-to-day hearing could not be taken up by the government in the HC. Thereafter, VP Singh government was formed with the support of BJP and quite understandably nothing changed again. This was the time when LK Advani was spitting poison against Msulims in his Rath Yatra. On the fall of VP Singh government. Chandrashekhar government did try to expedite the matter on the basis of a letter written by Rajiv Gandhi for constituting a five member bench of SC to decide the question as to whether there was any living temple of Lord Rama which could be said to have been demolished for construction of a temple but SC did not agree for the same and soon thereafter Chandrashekhar government was dissolved too. Then PM Narsimha Rao attempted an out of court settlement-but without any positive results and after the demolition of Babri Masjid he had again tried to stall the case regarding title and to get the matter decided on the basis of an advisory opinion of the SC but the Muslims did not agree and ultimately by means of a judgement dated Oct 24, 1994 the cases were revived and the SC had returned back the reference to the President of India unanswered. On the basis of the SC judgement the cases were again started in Lucknow in January 1995 and one and a half year was taken up in disposing of applications for amendment of the pleading necessitated on account of the acquisition of entire land around Babri Masjid. In the meantime elections were again held and central government again changed and the government headed by HD Deve Gowda and I K Gujral could not make any headway in the expeditious disposal of the cases and thereafter BJP government was formed at the centre in 1998 under AB Vajpayee. In the beginning BJP government also tried to secure an out of court settlement in favour of temple but without cutting any ice and then it tried to get the construction of temple started at the acquired site adjacent to the Babri Masjid site but this effort was firmly restrained by SC by passing an order dated March 13, 2001. Thereafter, for some time the BJP government continued making efforts for getting a stay order vacated but when it could not succeed on this front it had to approach the HC for getting the suit decided expeditiously by holding day-to-day hearing. By that time the code of civil procedure had also been amended and a provision had been made in the said court for recording of evidence before the commissioner appointed by the court in without assigning any special reason as such the application for day-to-day moved by the government was naturally supported by the Muslim side. The day-to-day hearing was allowed by the court and started from April 1, 2002. Five Prime Ministers have orbited around Babri Masjid.

Who all have appeared from the Muslim side as witness?
Twenty Muslims, seven Hindus and one Parsi appeared as witness form the Muslims’ side.

Did any Muslim appear from the Hindu side. How many parties are there from the Hindu side and the number of witness from the Hindu side?
No Muslim appeared form the Hindu side. Sixteen appeared on behalf of plaintiff of OOS No. 5 that is Bhagwan Shri Ram Lala Virajman, two appeared from Gopal Singh Visharad side and the 20th witness is right now appearing from the Nirmohi Akhara side.

How far do you think have your efforts in getting the excavation report of the disputed Ramjanambhumi/Babri Masjid site by the ASI get rejected, succeed? 
We feel fully confident that the report will be rejected. 

What has been the role of ASI as Commissioner and what value does it accord in context to title-suit?
ASI has not conducted itself in an impartial & nonbiased manner and its role was not up to mark. Even if it is taken on record it will be of no worth and can in no way either help the case of the other side or damage the case of Muslims.

Coming to the demolition front. What has been the role of Mayawati in the case regarding the demolition accused?
She was dependent upon BJP after she formed the UP government in 2002 and as such was acting under their dictates regarding the demolition case and she tried to save them by not issuing notification for referring the Crime No. 198/92 to the CBI Court at Lucknow. This lead to LK Advani getting exonerated on Sep 19, 2003. After this we filed a review petition in HC on Dec17, 2003 and the arguments for setting aside the order discharging LK Advani are underway.

Mulayam Singh Yadav has toed his predecessors’ line. On Dec 7, 2003 he did assure Muslims that he would discuss the matter? 
UP CM Mulayam Singh did not issue fresh notification for referring the case of Crime No. 198/92 to the CBI Court at Lucknow on the plea that this matter was already subjudice before the SC and he was also of the view that if anything was done against LK Advani the same may give him strength before the parliamentary election 2004. He said that we could meet and discuss about further action, if any was to be taken in this respect but, he could not find time to meet the delegation of the AIMPLB yet and since then a year has passed.

When did AIMPLB take over the Babri Masjid case?
Our campaign continued until the SC judgement of 1994 and after that it was decided that we should concentrate on the case. After the demolition AIMPLB decided to pursue cases relating to Babri Maasjid and since 11 years it has been doing so.

How far do you think that Gujarat riots of 2002 had their roots in UP? 
Gujarat riots were mediated, pre-planned and state sponsored. BJP government took the so called attack on Karsevaks as an excuse for carrying out their cleansing of Muslims as a whole in Gujarat.

Finally, how do you react to the arrest of Jayendra Saraswati in Tamil Nadu, in a case of murder. He has been pretty active on the dialogue between Hindus and Muslims on the Babri Masjid issue? 
It is a matter for the local police and we do not know whether the allegations are correct or not, if they are correct then it is unfortunate and if they are wrong then even more unfortunate. «

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