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 A 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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