BABARI MASJID
Eminent Counsel Rajeev Dhavan
On Proposal to Transfer Ayodhya Cases to Supreme Court
After the Supreme Court's judgement in the Ayodhya case, the controversy is not whether (or, even when) but where the Babari Masjid should be rebuilt. Deciding the future location of the Masjid will depend on who (if anyone) will win the civil claim to be the owner of the original site. Even if limitation defeats the Muslims claim, it does not follow that the recompense does not have to be made for its destruction. But a solution which dispenses with the rebuilding of the mosque altogether is indefensibly invidious. The Muslims, indeed everyone, were assured that the mosque would be rebuilt. The legal duty to rebuild flows from the duty to protect the structure - breach of which led to the Supreme Court finding the former Chief Minister, Mr. Kalyan Singh, guilty of contempt in 1995. A similar case is pending against the former Prime Minister, Mr. V. Narasimha Rao. It cannot be overlooked that what was destroyed was not just a protected ancient monument and a place of religious worship; but the hitherto unerring faith of the Indian people in secularism.
If the "left" in the "left" Deve Gowda Government really wants to make amends, they must stop playing "legal" games. If its moral courage is not as supine as its political will, it must first and foremost reiterate its assurance to the Muslims that the mosque will be rebuilt. By themselves, such assurances are meaningless unless. they are backed by some tangible action that makes the promise good. Mosques reduced to stone and rubble are not built overnight. Plans have to be drawn and experts appointed to recommend and pursue the best course of action. Even this minimal step has not yet been taken even though there is nothing in this Ayodhya Act or the Supreme Court judgement which prevents the fulfillment of the obligation.
The "Article 138(2) solution consists of giving the Supreme Court exclusive jurisdiction to hear the civil cases which have been lingering in Lucknow, in at least one instance, for 45 years. But, giving its docket, there is no guarantee that the Supreme Court (which took one and a half years to decide the reference and constitutionally case) will hear the case immediately. Being a civil case with 20 issues (subdivided into about 20 others), oral and documentary evidence will have to be led.
The Article 138 solution is not there for the asking. In particular there must be a "special agreement" between the Government of India and the State of UP followed by legislation by Parliament to, clothe the Supreme Court with this special jurisdiction. With UP under President's rule, it would be wrong to obtain this agreement without a popular government. After UP consents, Parliament would have to pass an enabling legislation. The strong dissensions over the proposal will result in a constitutional challenge to any such legislation passed by Parliament. The constitutional challenge is not devoid of merit and can be plausibly stated, bringing together many diverse but interconnected arguments.
The purpose behind Article 138 was to create a jurisdiction in various classes of cases, directly from the tribunals in which such disputes are reposed. After the 42nd Amendment of 1976, the scope for the legitimate use of Article 138 on an already overloaded Supreme Court has increased.Even if the proposed Ayodhya legislation scrapes through the constitutional barrier, such an exercise will, by itself, take time. With the long-drawn suits in Lucknow coming to an end, any recourse to Article 138(2) is futile and misconceived, generating politics rather than just solutions.
Appalled by the Congress's highly skewed and discriminatory 1993 legal package of acquiring the site and referring a biased question to the Supreme Court, the "left" wanted the integrity of Muslim and secular claims not to be lost by the Supreme Court agreeing to pronounce over spurious "Hindu" history in a non- binding opinion which would prove to be an invitation to discontent. Keen that the Supreme Court decide the issue once and for all, the "left" felt that the integrity of the cases in the case could only be preserved if the same issues that were pending in Lucknow were transferred to the Supreme Court and disposed of.
The joint statement of the CPI-CPI(M) in January. 1993 strongly advocating the use of Article 138(2) to resolve the dispute was an antidote to the Congress's horrifying communal proposal that the issue (as exemplified in the Reference) was whether "any temple or Hindu religious structure existed (at any time) prior to the construction of the Ram Janmabhoomi-Babari Masjid (including the inner and outer courtyards of such structure) in the area on which the structure stood?" With no spatial or temporal contours, the existence of any temple or "religious structure" in the "area" hundreds of years before the Masjid would clinch the issue for the Hindus. This is why the minority judges in the Supreme Court indicted the Congress package as one which will "favor one community and disfavor another".
Even during the negotiations between 1990-1992, the nearest point of agreement was that some Muslims were agreeable to shifting the mosque if there was incontrovertible evidence that the disputed site was Lord Rama's actual birthplace, on which a temple to commemorate the birth stood; and, that temple was destroyed to build the mosque. But even this was rejected by the VHP. This is quite apart from the argument that what happened 400 years ago should not be the basis for today's communal policy a sentiment echoed by the Places of Worship Act 1990 which uses. August 15, 1947 (Independence) as the cut-off date beyond which any historical inquiry would be invidious, a special exception being made, however, of the Ayodhya dispute. Even though riddled with legal problems, as a temporary antidote to the Congress's communal package. the Article 13(8)2 was unexceptional in the context of the politics prevailing then. But its revival as part of Deve Gowda's minimal package reveals a shallow guile and lack of secular courage.
Whether it is part of an electoral plan to appease Muslims or a genuine, but misconceived, expression of an impatient secularism, the Article 138 solution offers no solace and is no substitute for taking real and tangible steps to do justice to both Muslims and the cause of Indian secularism. As a first step, a commission of experts (consisting of architects, archaeologists and builders) should be appointed to get on with the task of rebuilding the mosque. Once the rebuilding plan is ready, provision has to be made to temporarily resurrect the mosque at stone spot in Ayodhya. The Supreme Court has already made it clear that the fate of the actual site of the destroyed mosque will flow from the civil case. When the case is decided, there is still room for the disputing communities to be gracious about the site to which the Masjid may be moved. But, the process to rebuild the mosque must start now. Whatever its origins, the Babari Masjid affair is not a Hindu-Muslim dispute but one which goes to the heat of Indian secularism. Any solution does not just have to assuage Muslim hurt and discipline Hindu zealots, but heal a fatally-wounded Indian secularism. Do governments in India which are constantly looking for electoral victory at all costs have the courage to start the process of rebuilding the mosque? Rebuilding of mosque will rebuild Indian secularism.
(Source: The Radiance Viewsweekly, 30 June-6 July, 1996)
CPI: Shameem Faizee on Why Article 138(2)
Finality and binding nature of the Supreme Court verdict under Article 138(2) is the real objection for the communalists of all hues. Because it will bring an end to their movements through which they sow the seeds of division and communal polarization.
Hindutva brigade wants to keep the issue alive by suggesting that either it be settled mutually or through legislation, and Muslim communalists want to keep it in the Allahabad High Court so that they can even after the High Court delivers its verdict, claim right to appeal in Supreme Court and prolong the agony of the nation.
(Source: The New Age Weekly, 23-29 June, 1996)
Shahabuddin's Letter to Prime Minister Devegowda, 31 May, 1996
Please accept my sincere felicitations on your being invited by the President to form the Government. I wish you every success and a momentous term in office.
I have just read that in the Minimum Programme approved by the United Front, a question of Reference of the Babari Masjid dispute to the Supreme Court (SC) under Article 138(2) of the Constitution is included. I am putting our reservation on the record because I feel that of the Programme of Action of your Government, it may once it figures in the President's Address and forms part be difficult for you to review the matter.
The This suggestion has been seriously considered in the past and rejected by the Babari Masjid Movement - The Babari Masjid Movement Coordination Committee as well as the All India Babari Masjid Action Committee on the ground that it would reduce a two-step proceeding to one-step and thus deprive the Muslim community of its rights of appeal to the SC in case the question of title is decided adversely by the Special Bench of the Allahabad HC which has now seized of the matter. It was also felt that even if the matter was heard by the SC in its original jurisdiction under Article 138(2), the SC will not have the necessary time for recording the evidence and for the cross-examination of the witnesses and, therefore, it shall for this purpose. Thus, the procedure will become as have to take recourse to commissioning the High Court much if not more time consuming without any benefit.
We fully appreciate that the national interest demands that the question of title to the disputed site, once occupied by the Babari Masjid, and the land attached thereto is decided in the shortest possible time. We feel that this can be achieved by expediting the Allahabad HC. In fact, the Babari Masjid Movement has process of adjudication by the Special Bench of the facilitating day-to-day hearing of the case since 1986 and been requesting the Central and the State Government for particularly after the constitution of the Special Bench in 1987. However, it is a matter of regret that because of intervening political parties, no progress was made even after the lists of witnesses were exchanged and the Special Bench could have commenced recording the evidence and examining the witnesses. As you are aware the SC has referred back the case to the Special Bench. We request that your Govt. in consultation with the State Government should extend all possible facilities and cooperation to the Special Bench of the Allahabad HC for expediting the hearing. We believe that the Special Bench should be in a position to pronounce its judgement on the question of title within 6-12 months. Thereafter. either party which is aggrieved could appeal to the SC but only on a question of law. We believe that this would be the most expeditious manner of handling the dispute.
We also request you to kindly reaffirm the duty of the Executive to execute the final verdict, without fear or favor, whatever its political cost, because that is what the rule of law demands.
