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Posted Online on Thursday, 10 August 2006 07:55 IST

Muslim Islamic NewsA Shield for the Make-Shift Mandir or A Political Trap for the Muslims

By Syed Shahabuddin

The Milli Gazette Online

9 August 2006

The Ministry of Home Affairs, which is inter alia looking after the security of what it calls the RJB-BM complex on behalf of the Government of India which owns the Acquired Area and has been designated as the custodian of the disputed Area has decided to build a steel shield around the make-shift temple. The law clearly requires the Centre to obtain prior permission from the Supreme Court because the disputed area including the complex is under strict status quo order.

Instead of making a straight forward request to the Supreme Court for prior permission, the Centre has filed an application with the Supreme Court without faithfully outlining the Supreme Court's stand since 4 October, 1994; it has referred only to its interim orders in W.P. (Civil) No. 160 of 2002 (Mohd. Aslam Bhure vs. Union of India and others) dated 13 March, 2002 and 14 March, 2002. The interim orders only direct that no religious activity of any kind by anyone either symbolic or actual including Bhoomi Puja or Shila Puja shall be permitted, or allowed to take place.. no part of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the government till the disposal of this writ petition nor shall any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith.

The application reads as if it is a request for reconsideration of the interim order. It perhaps thinks that these interim orders will not stand in its way of its application as it does not propose to perform or permit any religious activity on or near the make-shift temple or hand over any part of the disputed or acquired area to any other person. What is reprehensible is that to get a favourable order from the Supreme Court, the Centre deliberately conceals the final order itself in WP (C) No. 160 of 2002 dated 31.3.2003 which should have been attached, if an interim order in the case was being invoked. The final order said.

.... When the adjudication of the disputes which are pending before the High Court are reaching final stages, it will not be appropriate to disturb that state of affairs. It is well known that preservation of property in its original condition is absolutely necessary to give appropriate relief to the parties on the termination of the proceeding before the courts and, therefore, we do not think that this is one of those cases in which it becomes necessary to disturb that state.

On consideration of the entire matter, we are of the view that the order made by this Court on 13.02.2002, as modified by the order made on 14.03.2002 should be operative until disposal of the suits in the High Court of Allahabad...

By suppressing the Final Order, the applicant indeed seeks to mislead the Supreme Court.

Status Quo Order of 24 October, 1994

Not only this the Government has also deliberately ignored the substantive observations of the main Supreme Court's judgement of 24 October, 1994 in Ismail Faruqi vs Union of India and others (AIR 1995, SC 605) on the constitutional status of the Acquisition of Certain Areas in Ayodhya Act, 1993 (No. 33 of 1993). The judgement upholds Act 33 of 1993 as Constitutional (with the except of one section) including Section 7(2) which says:

"Central Government or the authorized persons shall ensure that the position existing before the commencement of this act in the area in which the structure (including the premises of the inner and outer courtyard of such structure) commonly known as the Ram Janma Bhumi-Babari Masjid stood ... is maintained."

Regarding the status quo, the Supreme Court (in para 48 of its judgement) stated:

"Unless status quo is ensured, the final outcome on resolution of the dispute may be frustrated by any change made in the disputed area which may frustrate the implementation of the result in favour of the successful party and render it meaningless. A direction to maintain status quo in the disputed property is a well-known method and the usual order made during the pendency of a dispute for preserving the property and protecting the interest of the true owner till the adjudication is made. A change in the existing situation is fraught with the danger of prejudicing the rights of the true owner, yet to be determined."

Since Section 7(2) of the Act 33 of 1993 cannot be amended, no civil work of any kind in the protected area has any legal sanction. Indeed neither the Parliament nor the Supreme Court can individually change the status quo till the title suit before the Allahabad High Court is decided.

Allahabad High Court's Order of 5 May, 2005 on Shamiana Case

The Government has also ignored the order of the Allahabad High Court on 5 May, 2005 which deals with the Government's application to erect a Shamiana on the excavated area and stated "the Government shall confine to the excavated area which is outside the make-shift temple for which status quo has to be maintained (emphasis added).

A Joint Enterprise of Union and State Governments

The question is whose idea it was, Centre's or State Governments?

A copy of the minutes of the Meeting held on 4 October, 2005 has been attached to the application.

It is clear from the minutes that it had already been agreed in principle by the Home Minister on his visit to Lucknow on 6 July, 2005 immediately after the terrorist attack on the make-shift temple that the security arrangements were unsatisfactory and needed to be reinforced. It is also clear that the meeting of 4 October, 2006 that it was meant not for examination of alternative ways of reinforcing the security system.

The Government of UP, one imagines, with the expert assistance of the Centre, had already prepared the Steel Shield Scheme to protect the make-shift not only from grenades but from missiles and aerial attacks and worked out its financial implications. At the meeting, the Scheme was approved by the Centre in toto (Para 14). Consequently the Centre agreed to provide Rs. 7.32 crores for the Scheme. It has released 4.82 crores for civil works on 30.3.2006 for expenditure to be spent during 2005-06 (?) and the balance during 2006-07.

The minutes clearly say that the Government of UP had proposed the revised security scheme at the direction of the Government of India.

Let us look at the composition of the two teams.

The Union Home Secretary's team included 2 Additional Secretaries, 2 Joint Secretaries, JD, Director, IB, DG�s, CRPF and CISF and DG, ASI against 3 of UP Government of comparable rank!

The ADG (Security), UP, explained that the revised scheme had been drawn taking into consideration the 'emerging threat perceptions'. There is no mention of the manner, form or substance of the change in security perceptions. No one questioned him on this and he gave no details.

A few houses in the neighbourhood overlooking the make-shift mandir which were always there were noted as constituting a security threat. The UP Chief Secretary said that some had been vacated. Nearly always such spots are controlled by placing security personnel on their top.

The ADG (Security) had said that more security personnel will be required but the requirement has not been quantified. However, the State Government was assured that whatever was needed shall be provided.

It was indeed mentioned at the meeting that the bullet proof cover for the make-shift mandir may amount to a permanent structure in violation of the status quo order. This was summarily dealt with and it was agreed that if the arrangement disturbs the status quo, the Supreme Court's direction will be obtained. But there is no explanation as to why, despite this doubt, the matter was not been referred to Supreme Court for clarification, while the proposal was still under consideration and an application has made expost facto after big sums have been released to the Government of UP and perhaps some work had been commenced.

Union Home Secretary enquired about other steps to strengthen the security but there is no mention of special measures except "beefing up vigilance and surveillance" (para 8).

The above is a summary of the minutes. There is no architectural design, no specifications, no discussion of the state of security or any arrangement made for improvement of security, since the terrorist attack. It was not a discussion between the Centre and State Governments but the Home Secretary okaying what everybody knew had already been agreed upon.

Failure of Existing Arrangements

At the meeting of 4 October, 2006 there was no discussion on the existing security arrangement or the reasons of its failure in March and May, 2005.

The ADG (P) spoke of changes in emerging security perceptions but gave no details of the changes that had taken place that had rendered the existing arrangements unsatisfactory and incapable of meeting a terrorist threat. The meeting did not identify the defects and flaws in the security system which were responsible for the failure of the system. It did not discuss the measures needed to tighten up the security or even the alternative to a steel shield.

There is no analysis of earlier security lapses and flaws, specially on 13 March, 2005 or on 5 July, 2005 when the terrorists passed through at least 4 road barriers, manned by PAC and UP Police. Their vehicle contained the arms and explosives they used. Why wasn't it checked? The real failure was, therefore, at the checkpoints and barriers and in the areas lying between the three rings. Why are those responsible being protected?

Legal Objections

To sum up,

1. The Scheme violates Section 7(2) of the Act 33 of 1993

2. The Scheme violates the Supreme Court judgement of 24 October, 1994.

3. The Scheme violates the Supreme Court final order 31 March, 2003 in the case to which this application has been related.

4. The Scheme violates the Allahabad High Court on 5 May, 2005 in the Shamiana Case.

5. The Government has acted in a malafide manner by trying to circumvent the absolute bar placed by the Supreme Court on any disturbance of the status quo by taking hold of an interim order only and thus to persuade the Court that its earlier order was not being violated and rush it into endorsing the proposal.

6. The Scheme has failed to examine how the current 3-tier arrangements which was found to be weak can be reinforced.

The Supreme Court is not concerned with the cost or manner of security management or what the Centre or State Government do to improve or reinforce the security but with the legality of the proposed scheme.

A steel shield is not the answer to defend against terrorist attack. Otherwise why the Government should not place a steel shield around the Parliament House or the Akshardham Mandir or the India Gate or the BARC? And what about potential moving targets like the Metro?

Main Problem: Dual Responsibility

In our view, the existing security arrangement has failed because of dual management . The State Government is no doubt responsible for law and order but in one's own house, the occupant is himself responsible. Legally the Acquired Area is owned by the Centre. Disputed Area is in the custody of the Union, its security must be the undivided responsibility of the Union Government. The security regime should be designed by Union experts and appropriately manned and equipped. Inside the security zone, only the Union forces should operate. Outside, the State Government shall deploy its forces to maintain a watch. Also the neighbourhood shall be under constant surveillance by the State police. High buildings in the vicinity can be immunized by posting CRPF men on top in radio communication with each other. The entire campus should be under electronic surveillance controlled by the Union. At the checkpoints, sniffer dogs should be employed. No vehicles, except those of commanding officers, should be allowed to pass the barriers between dusk and dawn and reach the pe rimeter of the security zone.

The key to operational success lies in full assumption of responsibility by the Union Government and its faithful execution not in division of responsibility and joint execution.

Psychological Aspect

The proposal has created the general impression that the security shield has been designed for political reasons with an eye on the coming election. It is also designed to create the feeling among the voters that the make-shift Mandir has now been built so solidly that only a tank can bring it down. The Muslims think that this is a device to cheat them of the fruits of a legal victory that they sense and see it on the horizon. That they may win the title suit and thus get the right to rebuild the Masjid on its original foundation is certainly possible and probable. But on one excuse or the other, they may be forced to forego their hard won right and either allow the proposed Mandir to be built or open to leave the Babari Masjid site open. The Scheme reminds them of the opening of the gate of the Masjid in 1986 and of the illegal Shilanyas against Court Order in 1989.

The Muslim community fully supports the Government in taking strongest possible security measures within the law but shall not accept the conversion of a make-shift Mandir into a permanent structure which may in course of time spread over the entire disputed area. To maintain its credibility the Government should withdraw this application, drop the Scheme and consider other appropriate ways of reinforcing the security of the structure.

(The Milli Gazette, 16-31 August 2006, p. 12)

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