Issues

Muslims never restrained from entering Babri

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Lucknow: The Ramjanambhumi/Babri Masjid issue has entered the portals of Supreme Court, which on 9 May, had expressed “surprise” over the Sept 30, 2010 order of the Lucknow bench of Allahabad High Court partitioning the site of Babri Masjid, three ways, one-third to the Muslim side and two-thirds to the Hindu side. This remark had come as none of the contesting parties had asked for such division of the site. The apex court, however, ordered the status quo to be maintained until the title is decided. But when this will happen is totally unpredictable as there is no time-limit for the final adjudication. In this situation, what would Muslims do as after all, Muslims are a party to the case with the All India Muslim Personal Law Board (AIMPLB) following it and is also now on a fund-raising drive to meet the expenses of the litigation. It is estimated that the Board is likely to raise Rs. nine crores for the coming court battle.    

Thus, it becomes necessary to see how the judicial process has in fact helped the Hindu side, while the Muslim side has only somehow withstood the growing uneasy tide. There is no hiding the fact that Muslims of the country have been forced by the illegality of actions of the Hindu side, ever since the Dec 22/23, 1949, when idols were smuggled into Babri Masjid and planted there, to fight this case.

Ironically, this illegality has been very systematically being legitimised at every step of the judicial process. First, the Babri Masjid was locked, then unlocked, then demolished, then a temple erected in its place, then puja and darshan allowed, and then, finally, it was decreed that the site was actually the exact spot where Lord Rama was born 900,000 years back, and hence Babri Masjid, which stood there for over four centuries, could not even qualify for the benefit of adverse possession! All this has been stamped by the courts of law.  

Since the case is now slated for hearing in the Supreme Court, it can be anyone’s guess that it might take yet another generation to actually get a final verdict, so it is time to analyse what all has elapsed in the various stages, and also probe if the Muslim side can still find some respite under available circumstances. To begin with, it may be known that after the placing of Lord Rama idols, and as per the arrangement under section 145 CrPC, the building of the Babri Masjid was put under the custody of a Receiver, on Jan 5, 1950, and any entry, irrespective of religion or residence, was barred. Nobody was allowed to enter the building, except for darshan from outside the middle wall which had stood in the outer courtyard of the Babri Masjid. No one was allowed darshan without the written permission of the City Magistrate or the Receiver. Muslims, quite understandably, could not dare to go near the Babri Masjid, despite no such prohibition.

What this arrangement was, should also to be understood. The property was thus given to Priya Dutt Ram (Receiver) who was required to look after the same, and also see to the puja of the deity. The Receiver was appointed as an ordinary “prudent man”. He was made to submit a scheme for puja which was to provide material for daily puja and its expenses and which was approved by the City Magistrate and, as such, through one pujari, appointed by the City Magistrate, the rites were to be performed. Interestingly, the expenses were to be borne by both the parties, Hindus and Muslims!  So, Muslims were to pay for the puja! But, fortunately such a situation was averted as the income generated from the makeshift shrine was quite sufficient.  However, after the death of PD Ram in 1970, the question arose about the appointment of another Receiver and the Civil Court continued the above arrangement by appointing a fresh Reciever, one after another and this continues till date.  

Muslims were never restrained from entering Babri Masjid, so to make a point, there was an effort to enter the Babri Masjid for offering Jumat-ul-Wida’ (Last Friday of Ramadan) prayers in 1954. But they were prevented by an order under section 144 CrPC which was violated but a few persons were still able to enter the mosque. A protest was organised and some arrests too were made. But the district authorities later clarified that the same order was valid only for three months, and since then, there has been no restriction as such.

The situation, as everyone knows, took a dramatic turn when the Courts facilitated the unlocking of the Babri Masjid on Feb 1, 1986, and everyone was allowed to enter the Babri Masjid to offer prayers. This was an interlocutory order passed by Faizabad District Judge KM Pandey. The Muslim side went against the order and got an interim order for status-quo to be maintained, passed by Justice Brijesh Kumar at Lucknow bench of Allahabad High Court on Feb 3, 1986. “The HC should have decided it first but found it convenient to keep it pending,” says Mushtaq Ahmed Siddiqui, an advocate who is considered an iconic figure in the Babri Masjid case since it started in 1986. However, this order was violated again by the Hindu side, as shilanyas was performed near Babri Masjid on Nov 9, 1989. Shilanyas is fire-worship considered auspicious for any fresh start according to Hindu rituals.

The Muslim side appealed against the violation but the HC bestowed relief to the Hindu side instead! It enlisted the case as miscellaneous, and later issued a notice, and ordered that the case would be decided along with the writ petition. The writ petition was ordered to be decided along with the suit, which was finally got decided on Sep 30, 2010! This order had come on August 14, 1989 given by Justice KC Agarwal, Justice UC Srivastava and Justice Haider Abbas Raza at HC, Lucknow. Despite the fact that there was no bar on Muslims’ entering the building yet the political and communal situation was so palpable that Muslims could not enter the same, and this situation continued until Dec 6, 1992 when Babri Masjid was demolished, with the connivance of the State, by Hindu terrorists. A makeshift Ram temple was built on its site overnight.

The then Prime Minister PV Narsimha Rao made an emotional speech promising to rebuild Babri Masjid on its original site but also brought an Act in Parliament to let the Ram Temple remain intact. On Jan 7, 1993 the Central government passed the same and appointed an authorised person (Commissioner, Faizabad Division) to take control of the situation, and later, a gangway of iron bars was made to facilitate worship by the devotees from a distance of 25 meters and this is still the practise. Muslims too can visit the site, but the volatile situation does not allow them to make any such attempt despite the fact that there no restraint from any Court.

After the demolition, two further steps were taken by the Hindu side, which were duly facilitated by the courts. The Hindu Adhivakta Sangh (Hindu Lawyers Organisation), through a petition before a Division Bench at Lucknow had sought that the idol of Lord Rama was facing the vagaries of the weather, hence, some protection order should be passed. The bench allowed the petition, but by then the Ordinance for The Acquisition of Certain Area in Ayodhya Act 1993 had been promulgated and the direction could not be complied with. Justice Hari Nath Tilhari and Justice AN Gupta had constituted the bench. Justice Tilhari had himself once been the President of Hindu Adhivakta Sangh.

What warrants further attention is that after Dec 6, 1992 there was total curfew in the whole of Faizabad and it continued until Dec 28 of that year. During this time, a lot of features like a tarpaulin shade, tied with ropes, etc was erected over the idol of Lord Rama and this facility is still provided with adequate replacements, on the orders of the Courts. Later, in the year 1994, a further petition by the Hindu side, was made to reduce the distance for darshan by the devotees from 25 meters to 12 and a half meters, and this was duly allowed by the Lucknow bench of Allahabad High Court. The bench constituted of Justice Chaudhry Abdur Raheem, Justice AP Misra and Justice IP Vashist. The Muslim side had to knock at the Supreme Court doors which stayed the HC order.  Thus, it can be very easily understood that the Muslim side had been in the hot seat and had always looked for legal redressals after being scuttled by the Courts or even by Acts of Parliament! 

It may also be emphasised again that after Jan 7, 1993 Ordinance providing for abetment of suits, the same was desperately challenged by the Muslim side in the apex court, and on the application of Union of India, for the transfer of the cases from HC to a probable five judges bench in SC. The apex court, after hearing the matter on Oct 10, 1994, held that the right to seek adjudication of one’s civil right is a part of basic structure and as such the provision in the acquisition law abetting the suits was bad. Thus, Sub Clause 3 of Section 4 of the Act abetting the suits was struck off and it was provided that the suits would remain in the HC. This was definitely a major achievement for the Muslim side.

Another bone of contention was that whether Muslims prayed in Babri Masjid until Dec 1949 or did they pray until 1934, as claimed by the Hindu side. This has at least found an answer in the wake of Sep 30, 2010 order, when the majority view is that Muslims were offering prayers until 1949. This view had come from Justice Sudhir Agarwal and Justice SU Khan. Justice DV Sharma had disagreed. Thus, the case of the Hindu side that Muslims had been ousted from Babri Masjid since 1934, and that the Hindu side had acquired the right to Babri Masjid stands demolished. This can be seen as yet another accomplishment for the Muslim side.

What is this 1934 situation? It might be put on record that in 1934, on the occasion of Eidul-Azha, in a nearby village, Shahjehanpur, it was claimed that a cow was sacrificed. This provoked Hindus to attack Babri Masjid causing damage to the building and killing two Muslims and burning some properties of Muslims. This led to criminal proceedings against the rioters and the British government of India imposed a penal tax on the Hindus and the collected amount was used to repair the Babri Masjid as well as the burnt houses of Muslims. The Hindu side has maintained that Muslims did not visit the Babri Masjid after 1934 but this was rubbished by the Sep 30, 2010 order.  

But, taking stock of the whole issue, the great irony is that the Muslim side has been let down, time and again, despite the Court orders. The orders of Feb 3, 1986, were blatantly violated by the Hindu side by performing the shilanyas. The order of August 14, 1989, for maintaining status quo, which had come on the UP government application for performing shilanyas, as given by Justice KC Agarwal, US Srivsstava and Justice Haider Abbas Raza, and later explained on Nov 7, 1989, by the same bench, was totally violated by the Hindu side. Then, came the order of July 15, 1992 by the HC full bench which had Justice SC Mathur, Brijesh Kumar and Justice Haider Abbas Raza, for the restriction of any construction activity. This order had come on the application from the Muslim side as there was an apprehension that the BJP government under Kalyan Singh would start all-out construction of Ram temple. This was followed by yet another effort by the Muslim side going to SC which ordered on Nov 27, 1992, for the maintenance of status quo and that no damage to be done to Babri Masjid. This was violated and Babri Masjid was demolished on Dec 6, 1992. Kalyan Singh had gone to jail for a day as a symbolic punishment.

Last, but not the least: the use of the great adage of rubbing salt to injury, as the order of Sep 30, 2010, has given complete legitimacy to the act of demolition, and, the situation is going on unaltered, despite the acknowledged fact that Muslims had prayed in Babri Masjid until as late as Dec 1949. So, why should not Muslims be allowed to pray in the one-third of the Babri Masjid given to them! “This is what Muslims are supposed to be asking for now,” says Mushtaq Ahmed Siddiqui.

“If we analyse, in a nutshell, as to what has happened in the Babri Masjid case since 1949, then the reality is that the Hindu side has started the game, through criminal activity, and in order to protect such criminal activity and strengthen their claim, they took shelter in the courts of law and the fact of the matter is that courts of law have come to their rescue and as such the judicial process can be said to be a process to legitimise criminal activity and that Muslims have been forced to defend the case,” he added. It may be added here that in 1951, when the two suits were filed by the Hindu side, some prominent Muslims of Ayodhya were arrayed as defendants. The third suit filed in 1959 was also imposed on Muslims. However, in 1961 Muslims filed one suit to put forth their stand and the same was consolidated with other suits.

There can be no glossing over the fact that the Hindu side is making merry with its puja for the past 60 years. The requisites for puja are fulfilled, the pujari supervises the worship and the devotee stands at a distance but Muslims have been denied their right. “So why do not Muslims stake claim to offer prayers on the one-third of the Babri Masjid site given to them, with some  arrangements to let them reach the Babri Masjid peacefully? This can be considered to respect the desire of those persons involved in the litigation to make them perform prayers even once in their life-time, and this aspect is a necessity. Accepting the order of Sep 30, 2010, for the time being, does not at all amount to accepting the same forever,” he said.

What could be a way out? “AIMPLB along with my friends need to make this a point of our argument in the SC and seek to get the SC modify its May 9 order. We want peace to prevail. We don’t want any further bloodshed. The Apex Court can very well order an arrangement. Either the timings of the gangway be changed or a separate gangway made for Muslims but it is high time that such a provision is made. It is a well-established strategy of the Hindu side to prolong the litigation and make Muslims to gradually forget or lose interest in the case,” he claimed.   

Should the Muslim side, therefore, conditionally accede to Sep 30, 2010 order? “The case would be fought with all the legal affirmatives but Muslims ought to also exercise their claim to offer prayers and not let the Babri Masjid slip out of our minds. They,  in fact, should put their authorized franchise on it,” he said.  Would there be an attempt along these lines in the SC is yet to be seen. 

This article appeared in The Milli Gazette print issue of 16-31 July 2011 on page no. 12

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