The irony is that in doing so, the court has inadvertently provided a shot in the arm for a political movement that cited the very same “faith” and “belief” to justify its open defiance of the law and the Indian Constitution. That defiance reached its apogee in 1992, when a 500-year-old mosque which stood at the disputed site was destroyed. The legal and political system in India stood silent witness to that crime of trespass, vandalism and expropriation. Eighteen years later, the country has compounded that sin by legitimising the “faith” and “belief” of those who took the law into their own hands.
The three learned judges of the Allahabad High Court may have rendered separate judgments on the title suit in the Babri Masjid-Ramjanmabhoomi case but Justices Sudhir Agarwal, S.U. Khan and Dharam Veer Sharma all seem to agree on one central point: that the Hindu plaintiffs in the case have a claim to the disputed site because “as per [the] faith and belief of the Hindus” the place under the central dome of the Babri Masjid where the idols of Ram Lalla were placed surreptitiously in 1949 is indeed the “birthplace” of Lord Ram.
For every Hindu who believes the spot under the central dome of the Babri Masjid is the precise spot where Lord Ram was born there is another who believes something else. But leaving aside the question of who “the Hindus” referred to by the court really are and how their actual faith and belief was ascertained and measured, it is odd that a court of law should give such weight to theological considerations and constructs rather than legal reasoning and facts. Tulsidas wrote his Ramcharitmanas in 16th century Ayodhya but made no reference to the birthplace of Lord Rama that the court has now identified with such exacting precision five centuries later.
The “faith and belief” that the court speaks about today acquired salience only after the Vishwa Hindu Parishad and the Bharatiya Janata Party launched a political campaign in the 1980s to “liberate” the “janmasthan.”
Collectives in India have faith in all sorts of things but “faith” cannot become the arbiter of what is right and wrong in law. Nor can the righting of supposed historical wrongs become the basis for dispensing justice today. In 1993, the Supreme Court wisely refused to answer a Presidential Reference made to it by the Narasimha Rao government seeking its opinion on whether a Hindu temple once existed at the Babri Masjid site. Yet, the High Court saw fit to frame a number of questions that ought to have had absolutely no bearing on the title suit which was before it.
One of the questions the court framed was “whether the building has been constructed on the site of an alleged Hindu temple after demolishing the same.” Pursuant to this question, it asked the Archaeological Survey of India to conduct a dig at the site. This was done in 2003, during the time when the BJP-led National Democratic Alliance government was in power at the Centre. Not surprisingly, the ASI concluded that there was a “massive Hindu religious structure” below, a finding that was disputed by many archaeologists and historians.
The territory of India — as of many countries with a settled civilisation as old as ours — is full of buildings that were constructed after pre-existing structures were demolished to make way for them. Buddhist shrines made way for Hindu temples. Temples have made way for mosques. Mosques have made way for temples. So even if a temple was demolished in the 16th century to make way for the Babri Masjid, what legal relevance can that have in the 21st century? And if such demolition is to serve as the basis for settling property disputes today, where do we draw the line? On the walls of the Gyanvapi mosque in Varanasi can be seen the remnants of a Hindu temple, perhaps even of the original Vishwanath mandir.Certainly many “Hindus” believe the mosque is built on land that is especially sacred to them. The denouement of the Babri case from agitation and demolition to possession might easily serve as a precedent for politicians looking to come to power on the basis of heightening religious tensions.
Even assuming the tainted ASI report is correct in its assessment that a Hindu temple lay below the ruins of the Babri Masjid, neither the ASI nor any other expert has any scientific basis for claiming the architects of the mosque were the ones who did the demolishing. And yet two of the three High Court judges have concluded that the mosque was built after a temple was demolished.
From at least the 19th century, if not earlier, we know that both Hindus and Muslims worshipped within the 2.77 acre site, the latter within the Babri Masjid building and the former at the Ram Chhabutra built within the mosque compound. This practice came to an end in 1949 when politically motivated individuals broke into the mosque and placed idols of Ram Lalla within. After 1949, both communities were denied access though Hindus have been allowed to offer darshan since 1986. In suggesting a three way partition of the site, the High Court has taken a small step towards the restoration of the religious status quo ante which prevailed before politicians got into the act. But its reasoning is flawed and even dangerous. If left unamended by the Supreme Court, the legal, social and political repercussions of the judgment are likely to be extremely damaging.
The author is a Chief of Bureau, The Hindu.
This article previously appeared in The Hindu, 1st October 2010. The opinion expressed in the article reflects the views of the author and not necessarily that of the foundation.