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Published in the 16-29 Feb 2004 print edition of MG; send me the print edition

Negotiation on out-of-court settlement on Babari dispute
By Syed Shahabuddin

Sole objective is unconditional surrender by Muslims

Syed ShahabuddinIronically when the judicial proceedings over the Babari Masjid are nearing their end, the Union Government has revived the idea of an out-of-court settlement through negotiations between the two communities. The latest phase began with the expression of concern and appeal by the Dalai Lama on 9 January 2004. Obviously by agreement, the theme was immediately orchestrated by the Deputy Prime Minister and Home Minister LK Advani and the BJP President Venkaiah Naidu who together gave public support to the idea of settlement through negotiations thrice in the course of one week. But both also reiterated the VHP line that the Muslims should withdraw their claim on the Babari Masjid site and their objection to the construction of the proposed Mandir according to the existing site plan. 

Judicial proceedings never exclude the possibility of an out-of-court settlement through negotiations but the proceeding of the Special Bench of the Allahabad High Court over title to the disputed area in Ayodhya which stood abated under the Acquisition Act, have been revived only in 1995 under express order of the Supreme Court.

In its judgement of October 1994, the Supreme Court has drawn a road map for the settlement of the dispute with the Babari Masjid site as the starting point. The road map envisages, in brief, the reconstruction of the Masjid or the construction of the proposed Ram Mandir on the Babari Masjid site, depending upon whether the Muslims or the Hindus win the title suit which was revived and the location of the other place of worship also within the acquired area. The Muslims as the aggrieved party have a fair chance of winning the title suit and rebuilding the Masjid but even if they lose the final judicial verdict, they shall have a Masjid on a nearby site within the acquired area.

An out-of-court settlement cannot be one-sided; it must be based on parity, equity and symmetry, on the principle of give-and-take by both parties. It cannot be all give by one party and all take by the other. It cannot give one party today all that it wants and ask the other party to wait for the outcome of the title suit...

VHP's Anti-Judicial Stand
The Muslims have declared time and again that they shall accept the final judicial verdict whatever it may be. This is in sharp contrast to the stand of the Vishwa Hindu Parishad which has made no such commitment and reiterated times without number that it shall accept only a favourable judicial verdict! It has also thrown a challenge to the nation by asserting that no power on earth can displace the temporary Ram Mandir which occupies a part of the Babari Masjid site. 

VHP's Desperate Bid for Negotiated Settlement
In October 1984, the Vishwa Hindu Parishad (VHP) started the campaign for construction of Ram Janambhoomi Mandir with its Grabha Griha on the Babari Masjid site.

In February 1986, the VHP succeeded in having the Babari Masjid unlocked and converted into a de-facto public Mandir.
In November 1989, the VHP performed the Shila Nyas of the proposed Mandir on Plot 586 which formed part of the disputed land consisting of 23 plots around the Masjid. 

In July 1992, the VHP completed the construction of the concrete base for 2/3 of the proposed Mandir structure, lying between the Shila Nyas site and the Babari Masjid. 

In December, 1992, it demolished the Babari Masjid and overnight levelled the debris and built a platform on the central part of the Babari Masjid site which, under the Mandir site plan, was to be the Grabha Griha, the sanctum sanctorum of the Mandir. 

Legal Obstacle
But more than 11 years later, having collected hundreds of crores and having completed the carving of pillars and other architectural elements for the ground floor, the VHP has not been able to move forward by inch. It set many deadlines conducted many Yagyas, held many meetings and launched many mass agitations. It exerted all the pressure it could on successive Governments. But the Law stood in its way. The VHP, not unnaturally, thinks that only an out-of-court settlement can bypass the law.

The construction of the proposed Mandir according to existing site plan simply cannot begin, unless the VHP somehow obtains title to and possession of the Babari Masjid site. Its pledge to 'Mandir Wahin Banaaenge' cannot be fulfilled, unless the Hindu side wins the title suit. The VHP, advised by its legal think tanks, knows that the Hindu case is weak and the possibility of a favourable judicial verdict is very small. Its persistent threat to defy the rule of law and to challenge the State is but an expression of this realization. The Sangh Parivar and the BJP have also concluded that legislation is not feasible because the NDA does not command a majority in the Rajya Sabha and the constitutionality of any such legislation is bound to be challenged.

Two Alternatives
So what is the way out? It has only two alternatives: defy the final judicial verdict, if it gives the Muslims the title to the disputed site, reject the Supreme Court's Road Map of October 1994 and, banking on a ground swell of frenzy and fanaticism, through mass agitation, with the support of the Sangh Parivar and the BJP, forcibly begin the construction of the Mandir and dare the 'Government' to stop it. But who knows who shall be in power and what the Government in power may do to fulfill its oath of office and to save the face of the country being blackened all over the world? In any case the construction will take years and can anyone guarantee benign neutrality by any government for years? So that is a risky proposition. The other alternative is to coax, cajole, induce, force or bribe some Muslims to hand over the disputed site to the VHP as a gesture of goodwill, unconditionally and voluntarily may be for a consideration. 

Conditions Precedent for Judicial Acceptance
A negotiated out-of-court settlement may be accepted by the Special Bench of the Allahabad High Court, only if the parties to the suit jointly present it and the Bench finds it a bonafide, free and voluntary agreement with the backing of the two communities, as a whole. But once the High Court puts its seal, the Supreme Court will have no difficulty in accepting the agreement on title but it may choose to its Road Map into motion. But that does not help the VHP. 

Basis of Acquisition
The Supreme Court had upheld acquisition of Ayodhya land because the Act was not for the construction of a Mandir only (which would have been illegal and unconstitutional) but for the promotion of communal harmony and secularism and, therefore, for the construction of both a Mandir and a Masjid. That is why the Supreme Court Road Map envisages the construction of both a Mandir and a Masjid within the acquired area. But the VHP is totally opposed to the construction of the 'substitute Masjid' within the geographical limits of Ayodhya, far less within the religious or municipal limits of Ayodhya, not to speak of the acquired area! But will the Supreme Court agree to this basic deviation from its interpretation of the Act and its Judgement, because such deviation will undermine the Constitutional foundations of both. 

So if the out-of-court settlement only settles the question of title to the Babari Masjid site and the construction of the Mandir in the acquired area, it does not meet the requirements of the VHP. The Muslim community must also be made to surrender its rights under the Act and the Judgement of 1994 to have a Masjid within the acquired area. And that is indeed a tall order and will amount to rubbing the Muslim nose in the dirt.

Parties to the Settlement
The consolidated suit under judicial hearing is a representative suit. Neither the All India Muslim Personal Law Board (AIMPLB) nor the VHP/Ram Janambhoomi Nyas are formal parties, but today they represent their respective communities. The AIMPLB is a representative body of the entire Muslim community, recognized by all Muslim organizations and sects and the Babari Masjid Movement. The VHP, the religious front of the RSS, represents only a minority of the Hindu community. The Hindu community is by and large secular and abhors the idea of demolition of a place of worship to build a Mandir in its place. Most Hindus are not convinced that the Babari Masjid site is the birthsite of Shri Ram Chandraji. Political leaders of all national political parties, except the BJP, reject the ideology of Hindutva and see nation's survival only as a secular state. There is no reason why the Supreme Court should recognize the RSS or its political or religious fronts as the sole representative of the Hindu community. Equally there is no reason why the Muslim community should negotiate with those whose hands are smeared with blood.

So, the real problem before the VHP and its ally the Union Government is two fold. First, they have to find a group of Muslims who are prepared to sign on the dotted line and surrender Muslim claim to the Babari Masjid site and who, at the same time, command enough influence in the community to sell the surrender as a face-saving device or as an act of long-term prudence or as a bargain in the interest of the community or as an insurance against more Gujarats and more demolitions. Secondly, they have to convince all the Hindus that the VHP represents them all and that putting the Muslims in their place serves a national purpose.

Idea of Negotiated Settlement
The quest of negotiated settlement began in 1986 itself. Successive Governments under Rajiv Gandhi, Chandra Shekhar, P.V. Narasimha Rao, and finally Atal Behari Vajpayee have been trying their utmost for crafting a settlement through 'negotiations' at the Ayodhya level between local Hindus and Muslims, or between religious leaders of the two communities, or between the VHP and the Babari Masjid Movement, or between the Government and a handpicked set of Muslim 'leaders'. 

Settlement or Surrender?
The amazing reality is that in each regime at every level the VHP's concept of 'settlement' seems to have prevailed over any other viable compromise. The coexistence of Mandir and Masjid, by revising the Mandir Site Plan slightly (about 30' to the east), so as to exclude the Babari Masjid site (about 3,600 sq.ft.) and to build the proposed Mandir (proposed floor area 1,25,000 sq.ft) next to and to the east of where the Babari Masjid stood has been repeatedly proposed but rejected. The VHP is not prepared to make any change in the Plan; nor is it prepared to tolerate a Masjid next to the Mandir. 

The VHP ignores the fact that there are more than 20 Masjids and many Dargahs within the religious/municipal limits of Ayodhya, alongwith hundreds of acres of Qabristans and has no answer when it is asked whether it proposes to demolish them all, like the Babari Masjid, and plough over all the Qabristans! It dares not spell out its concept of Ayodhya as the Vatican of the Hindus!
The All India Muslim Personal Law Board is handicapped because the VHP has always enjoyed the support and patronage of the power structure, openly under the Vajpayee regime. Today L.K. Advani has a Minister of State in Swami Chinmayananda who has been a leading light of the VHP. During the last hearings before the Supreme Court on the question of performance of symbolic pooja in the acquired area and then on the question of transfer of a part of the acquired area to the VHP to commence the construction of the proposed Mandir, the Central Government shed its neutrality and fully sided with the VHP. 

Without ruling out adjudication, P.M. Vajpayee has tried to prepare the ground for negotiations by waxing eloquently on why a negotiated settlement would be preferable to a judicial pronouncement: the problem may persist if one side refuses to accept the verdict, an unpopular judgement shall be difficult to execute. Under the rule of law, the losing party has no option but to accept the verdict and the Government is bound by the Constitution to execute the judicial verdict. Vajpayee is plainly trying to manufacture an excuse to cover his partiality towards the VHP and his softness. Either he should abolish the judiciary or resign!

Behind the scene, the Vajpayee Government has been consistently working to persuade, pressurize or purchase the Muslim opinion-makers, through its Muslim agents and hangers-on in his court, like Mohd. Mian Mazhari and Mohd. Jamil Ilyasi, both of whom have the knack of getting close to all Prime Ministers and Zainul Abedin, the Dewan of Dargah Khwaja Saheb, Ajmer, who has spent his whole life fighting for a bigger share in the offerings to the Dargah. Jamil Ilyasi, the president of All India Imams Organization who has been as close to Vajpayee as he was to P.V. Narasimha Rao and a few other religious figures whose names should not be revealed now have already been fixed. But the Government wants bigger fish. They tried face-to-face meeting between the Sangh Parivar and some Muslims through the National Commission for Minorities but failed. It put Asghar Abbas Rizvi, a discredited Shia leader, on the job but he has so far failed to deliver the goods, though he tried to purchase the Muslims of Ayodhya with the offer of a Jama Masjid in Ayodhya. It also tried Mr. Sirajuddin Qureshi, a business magnate, to soften the AIMPLB but failed. Off and on, it has tried to influence some members of the Muslim elite but though they speak privately about the harm in prolonging the dispute, the possibility of an unfavourable judgement, the enactment of many Gujarats all over the country and the hypothetical advantages of a reasonable settlement, they also failed to evolve a formula before the country, which would meet the demands of the VHP as well as satisfy the Muslim community.

The Government has tried to use the services of non-Muslim religious figures like Sri Sri Ravishankar, the Kanchi Shankaracharya Jayendra Saraswati and now the Dalai Lama. The Dalai Lama made an appeal to both sides but later added that he had no agenda and no formula. Others did have an agenda. Sri Sri Ravishankar simply dittoed the VHP line. But the Shankaracharya took many twists and turns till he made a commitment only to be let down by the VHP. Finally, he simply asked the Muslims to give away the Babari Masjid site in charity! One imagines that the Dalai Lama may propose the same charitable gesture. After all for 30 years he has been in close touch with the VHP and singing the praises of Hindutva and the Sangh Parivar.

No Government Formula
The Government never invited any Muslim organization of national eminence, not even the All India Muslim Personal Law Board, for direct negotiations though the Board has offered to enter into negotiations with the Government, if the latter has any suggestion or formula to cut the Gordian knot and break the stalemate. 

This shows the insincerity of the government as well as its commitment to the VHP. The Government is fully aware of the positions of both the sides and if it wants, it can come forth with a formula which would protect the essential interests of both and yet find a workable compromise. But the Vajpayee Government is not inclined to adopt the middle path. This is confirmed by Advani's reaction to the Dalai Lama's appeal: Muslims should withdraw their claim over the Babari Masjid site and hand it over to the Hindus for the construction of the Ram Mandir. 

Possible Scenario
Having once again placed the Ayodhya Question on the national agenda, the Government knows that no mutually acceptable compromise can be worked out and judicially endorsed in time for the election in the next 3 months. So what does it really want? My view is that all it wants is to assemble a set of Muslim religious notables even of the second rank or some selected Muslim elite to make a joint appeal to the leadership of the Babari Masjid Movement to accept an exchange of Babari Masjid site for a Constitutional guarantee to maintain the status quo in all 30,000 Masjids including those claimed by the Sangh Parivar, except of course the Gyan Vapi Masjid in Varanasi and the Shahi Idgah Masjid in Mathura in addition to some lollypops. Who is going to be taken in by promises or assurances in election time?

If the Muslim leadership bites the bait, that would be enough to secure the vote of a section of liberal and secular Hindus who are sitting on the fence or who do not comprehend Muslim insistence on regaining the site of the Babari Masjid after it has been demolished. The BJP may even secure some Muslim support. 
The Government may alternatively organize a face-to-face meeting between some handpicked Muslims and the Sangh Parivar or even a meeting of a cross-section of the Hindu and Muslim elite to create the public impression that the Government has been sincerely trying to find a solution.

Obviously such exercises will not produce a settlement but as exercises in PR may fetch the BJP that extra 2% of the votes, needed by it to make the next quantum jump from the electoral plateau it occupies today. The political shrewdness lies in that ever if the Muslim leadership rejects the offer, the BJP will still gain votes by harping on the theme of Hindu generosity and Muslim obstinacy. The reopening of the negotiation option is obviously a political move on the eve of the General Election, calculated to garner some votes of the liberal and secular Hindus.

Conclusion
The Government has always been short of ideas, having mortgaged its heart, mind and soul to the VHP. It knows that the Hindu side has no legal case and that no government can refuse to implement the final judicial verdict, presumably that of the Supreme Court, except at the cost of reducing democracy to a farce. But it has also run short of credible Muslim agents. The Government has not been able to soften even the Muslims of Ayodhya who have been living on the razor's edge, individually and as a group. It has not succeeded in assembling even a saleable pack of Ulema, Sufis, Qaris and Muftis or Muslim politicians, academicians or jurists or bureaucrats to bless a settlement.

An out-of-court settlement cannot be one-sided; it must be based on parity, equity and symmetry, on the principle of give-and-take by both parties. It cannot be all give by one party and all take by the other. It cannot give one party today all that it wants and ask the other party to wait for the outcome of the title suit and rely in the meantime on guarantees which are likely to be dishonoured by the party known for its record of deceit and the Goebbelsian capacity to turn falsehood into 'truth'. Above all, no compromise can be at the cost of the rule of law or of honour and dignity of the Muslim community. For the Muslims, the Masjid site is not negotiable. Nor it is on auction. 
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