If the legal corps of the Vishwa Hindu Parishad (VHP) and the Babri Masjid Action Committee (BMAC) agree on anything, it's that the judiciary has so far proved ineffective in resolving the Ram Janmabhoomi-Babri Masjid dispute. Like a hot potato, it's been passed up the judicial ladder from the Faizabad civil court to the Supreme Court and then one step down again to the Allahabad high court, where the matter is resting since October 24, 1994.
The VHP's Devaki Nandan Aggarwal, a former justice and a plaintiff in one of the four title suits, says the perceived judicial reluctance to arrive at a conclusion may stem from a feeling that the court's decision could create more problems than it solves—"Regardless of which way the court rules, it would take political will to carry out the order." He cites the example of the Doshipura graveyard at Varanasi. The apex court had ordered the shifting of two graves, then stayed its own ruling when the state government apprehended a law and order problem. Fifteen years later, the graves have yet to be shifted.
Senior BMAC counsel Zafarab Jilani observes: "A decision is possible only if there are day-to-day hearings by the full bench of the Allahabad high court. Otherwise, even if there are no unscheduled delays, it will take at least five years." He also attributes the delay to the VHP's lack of confidence in their case: "Why else do they take one week to examine a witness over whom we take just three hours?"
On the one hand, Aggarwal acknowledges the court is dragging its feet. On the other, echoing senior BJP and VHP leaders, he maintains that whatever the decision, the "sentiments of 70 crore Hindus cannot be ignored." Even if the court rules against the VHP, the BJP government in Uttar Pradesh can pass a law to facilitate the construction of a temple: "It is perfectly possible to enact suitable legislation. It's a state government matter." Supreme Court lawyer Rajeev Dhawan disagrees: "The canard that the government can pass legislation to allow construction is crazy." The Union holds possession of the land under the terms of a statute, the validity of which has been upheld by the Supreme Court, he adds.
Jilani can't account for the higher judiciary's hands-off attitude vis-a-vis the VHP, citing Ashok Singhal's widely-publicised statement that judges could be "punished" if they didn't settle the dispute in favour of the Ram temple: "It's clear-cut contempt. Why don't the courts take action?" The ineffectiveness of the judiciary, say Muslim lawyers, is evident in that Kalyan Singh served only a day's sentence for flagrant contempt of court. And the contempt cases against P.V. Narasimha Rao, Kalyan Singh and others are still pending in the apex court, more than five years after the demolition of the Babri Masjid.
Legal wrangles over the disputed site began way back in 1885, when Mahant Raghubir Das moved a suit (61/280) before the sub-judge, Faizabad, for permission to construct a temple on the site of a wooden Ram chabutra, where Hindus worshipped, within the masjid's courtyard. The December 24, 1885, order dismissing the plea was maintained by the judicial commissioner of Oudh. And there the matter stood until, on the night of December 22, 1949, trespassers broke into the masjid and installed an idol of Ram. An FIR was registered at PS Ayodhya soon after.
On December 29, 1949, the city magistrate attached the premises, appointing a receiver. In the next 12 years, four title suits were filed. An interim injunction by the civil judge, dated January 19, 1950, remained in force: "The parties are hereby restrained by means of temporary injunction to refrain from removing the idol in question from the site in dispute and from interfering with pooja, etc as at present carried on."
Cut to January 25, 1986, when one Umesh Kumar Pandey moved an application before the Faizabad munsif sadar, for unlocking the gates of the Babri Masjid. The munsif sadar asked for the file relating to suit 12/1961 from the Allahabad high court (where an appeal was pending against the appointment of a new receiver in 1975). Pandey successfully appealed against this delay to the district judge, who ordered the unlocking of the masjid gates. And despite two writs in the Allahabad high court challenging the order, they remained open until December 6, 1992.
The Ram-Janmabhoomi movement gathered momentum from 1989. In July that year, Aggarwal filed another title suit (236/-1989). On the state government's plea, the Allahabad high court withdrew all the title cases from the lower court and on August 14, it passed interim orders directing maintenance of status quo at the disputed site, which didn't stop the shilanyas on November 10, 1989.
SO began the run-up to the demolition of the Babri Masjid. In October 1990, Lal Krishna Advani embarked on his rath yatra from Somnath to Ayodhya. He was arrested before he could reach there but his party rode to power in Uttar Pradesh on the wheels of the Ram rath. Chief minister Kalyan Singh promised to build the Ram temple. The canopy over the shilanyas site, removed during Mulayam Singh Yadav's tenure, was re-erected and the barricading around the masjid removed.
On October 7 and 10, 1991, notifications under sections 4 and 6 of the Land Acquisition Act were issued by the state government acquiring khasra numbers 159 and 160 (2.77 acres) which included the kabristan and the outer portion of the masjid (but left out the main structure). Writ petitions challenging the acquisition were filed and the Allahabad high court and the apex court directed status quo, that is, no construction in the acquired area. But, despite restraint by both courts, a chabutra was constructed as the state government stood by pleading helplessness. Preparations for kar seva went into high gear. On November 28, 1992, the Supreme Court appointed an observer for "symbolic" kar seva, on an undertaking from Kalyan Singh that no damage would be done to the Babri Masjid.
As the Supreme Court was to observe later, the Ram Chabutra and Kaushalya Rasoi—where Hindus had worshipped since British times—were destroyed along with the Babri Masjid by Ram's "devotees".
On December 11, 1992, the high court quashed the state government's acquisition order. The Centre, through an ordinance on January 7, 1993, acquired 67 acres (including the site where the masjid had stood) at Aydhya. A reference under article 143(1) was made by the President to the Supreme Court to decide the temple versus mosque issue.
The ordinance (subsequently ratified by Parliament) was challenged in various writs, all of which were withdrawn by the apex court on September 25, 1993. Proceedings of title suits before the Allahabad high court were stayed. Finally, on October 24, 1994, a five-judge bench of the Supreme Court returned the reference and revived the suits pending in the Allahabad high court. It directed status quo as on January 7, 1993—that is, the makeshift temple erected on the disputed site after December 6, 1992, would remain.
The acquisition was upheld, with the proviso that the Centre would act as statutory receiver to manage the disputed area (around one acre) and maintain the status quo pending disposal of the title suits. Over the remaining portion of the 67 acres, the Union would exercise absolute control. When the area needed for achieving the purpose of acquisition was determined, the surplus would revert to its original owners.
In effect, since there has been no construction activity on the disputed site, the pre-fabrication of the temple in Rajasthan and Ayodhya does not technically violate the apex court's October 24, 1994, ruling. But coupled with the VHP's threatening postures, it could amount to contempt.
On July 24, 1996, the Allahabad high court began recording oral evidence in the title suit. So far, evidence of 12 witnesses has been recorded. A delay of five months was entailed when Justice A.P. Mishra was elevated as Chief Justice of the Delhi high court in May 1997. Justice D.K. Trivedi was appointed as presiding judge. Hearings will continue in July. Meanwhile, the BJP would do well to heed Rao's statement of 1993: "Any party which wants to govern a country like India should first learn to live by rule of law."
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