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Retrograde Judgement Rewards Hindutva Zealots

By Anand Teltumbde

04 October, 2010
Countercurrents.org

The parallel may not be palatable to everyone but the recent verdict of the Allahabad bench of the Lucknow high court may be compared with a case that was decided some eight decades ago in a small colonial court of Mahad in Maharashtra. Like this one, which has great implication to our secular fabric the Mahad judgement pivoted the future of a nascent movement launched by the Untouchables for securing their civil rights. The case was filed by the orthodox Hindus of Mahad to block the move of the Untouchables to perform Satyagraha at the Chavadar Tank in Mahad in December 1927 with the contention that the tank was their private property and hence the Untouchables could not trespass it. The court of the sub-judge of Mahad granted them temporary injunction on the eve of the proposed Satyagraha. Although the Satyagraha therefore was suspended, the case was zealously fought by none other than Dr Ambedkar and won. Just imagine if the court had relied on the faith and belief of the majority Hindus as the Allahabad judges did, what would have been the fate of the case and consequently that of the entire social reform movement in India. Surely, the faith and belief of the Hindus would have certainly considered the Chavadar tank as theirs to keep the Untouchables away in the first quarter of the last century.

Those were the colonial times. Nearly a century later, the independent India swearing by so many lofty ideals in its Constitution and aspiring to be a global superpower, we have gone back to faith and belief of the Hindus to decide the most important aspect of our national character, secularism, which represents a social contract this country had with its minorities. On many other aspects too, it would put us into reverse gear. Just imagine, if the courts were to take faith and belief of the Hindus for deciding cases, the decadent customs like sati, child marriages, untouchability, caste atrocities, etc. will all get validated and perhaps the Manusmriti may replace our Constitution. This judgement needs to be read in this perspective and seen in its potential danger to the basic premises of our nationhood.

Surely the Ayodhya judgement has miserably failed us on these counts. As such, it was a simple case of deciding property right over the disputed land around the spot on which the Babri masjid once stood. In absence of the clear title deed to the contrary, the court had to go by the physical evidence that the masjid existed there. There is a principle of possessory provision in the law which entitles land title to those who have uninterrupted and unchallenged possession of an area for twelve years or more. Surprisingly, the court dismissed the case of the Waqf Board and the Nirmohi Akhara claiming titles to the Inner Courtyard (where the Babri masjid stood) and Outer Courtyard (where the Ram Chabutara was located) respectively. It was indisputable that the masjid was at the spot uninterrupted, from 1528 until 1949 (when the namaz was last read there) and also the Ram Chabutara of Nirmohi Akhara, where puja, bhajan-kirtans were performed uninterrupted since 19th century. As regards the claim to the area under the central dome, as the birth place of Ram Lalla, a five-judge bench of the Supreme Court had already ruled in 1994 that it was incapable of legal determination while responding to the Presidential Reference sent to it after the demolition of the Babri Masjid. There was thus a legal position of the highest court of the land to guide the three judges of the Allahabad court on that issue.

But the learned judges chose to seek archeological evidence to see whether there existed a Ram temple as contended by the Hindus. How was it relevant? Even if archeology came out with an evidence to show that there was indeed a Hindu temple, can it be construed that the land belonged to the contending Hindus? It only proved that before the mosque was built, there existed a Hindu temple and nothing more. There is no way to find out the property transaction that took place while constructing a masjid there. But our court has seen what even archeology could not see. The Archeological Survey under the then NDA government led by BJP, which spearheaded the Ram Temple movement, came out with the finding that there existed a place of worship at the place where the mosque stood. This evidence also was not incontrovertible, having been widely disputed by experts. But did it prove whose place of worship it was? It could well have been the Buddhist or Jain temple? Even assuming it was a Hindu place, could it be proved that it was a Ram temple and beyond that it was a place where Ram was actually born? However, the judges transcended all boundaries of reason and tended to accept the spot under the central dome as the birth place of Ram.

It is not uncommon in the countries like India having old civilization to get some remains of old structures beneath the exiting ones. As a matter of fact, India does not have even archeological evidence for its claim of being an old civilization beyond Mohonjodaro and Harappa. The next living evidence after a dark period of a millennium and a half that one gets belongs to the Buddhist period which extended well until 9th century. It is during this period the historians tell us that entire India was dotted with Buddhist viharas, monasteries, and Buddha idols. Very little of that is seen today. It is a known fact that the Hindus had decimated Buddhism, and usurped most of these viharas to build their temples in medieval times. If the mosques were built at the site where temples stood, it is equally true that the temples were built at the site where the Buddhist viharas stood. Incidentally, when the Babri masjid contention was hot such a claim was feebly proffered on behalf of the Buddhists by the late Dr Savita Ambedkar, the widow of Dr Ambedkar. Indeed, if the court is inclined to go into archeology, it will have to logically take cognizance of such a claim of Buddhists for the simple reason that Ayodhya figures more in the Buddhist (and also Jain) literature as the important religious place than in any of the Hindu text as the birth place of Ram. Not even Ramcharitmanas of Tulsidas, written in the 16th century in the same province has any mention of Ayodhya being the birthplace of Ram. In fact there is no incontrovertible evidence for Ram being a historical personality. The mythology takes him back to 17 lakh years and the pseudo science of the Hindutva ilk to the 7000 odd years. And still the judges have gone to establish the exact spot under the central dome of the destroyed Babri masjid.

Indeed, there is something very weird about the Ayodhya judgement and even the reactions it evoked. The judgement forsook the principle of hard facts and reasoning in taking cognizance of nebulous notion such as faith and belief. Even on that count, it may be contestable that what is construed as belief of the majority of Hindus, is really the fabricated notion by the unscrupulous politicians hammered into the minds of gullible millions in recent times. If it was the belief of the majority of the Hindus, the history would have provided evidence of some disturbances during the five centuries of existence of the Babri masjid. The entire controversy started only after the idol of Ram Lalla was placed under the central dome surreptitiously by some miscreants in 1949 in the frenzied communal context of those times. It was ostensibly a political move, which launched a lasting communal contention that eventually culminated into destruction of a historical structure and created countrywide mayhem devouring thousands of lives and most importantly the social contract between the country and its minorities, which has been the basis of our nationhood. Leave apart the majority of Hindus of India, even their majority in Ayodhya also does not believe that Ram was really born under the central dome. There are many temples in Ayodhya which are known to be the birthplace of Ram. It is only the Sangh Parivar which initiated and propagated this notion for mobilization of Hindus for its political objective.

This judgement has validated that evil politics by accepting that it was the “place of birth of Lord Ram as per faith and belief of the Hindus” as Justice Agrawal wrote and “The disputed site is the birth place of Lord Ram … Hindus have been worshipping the place…and visiting as a sacred place of pilgrimage since time immemorial” as Justice Dharam Veer Sharma wrote. The main slogan of the Hindu zealots, “mandir vanhi banayenge” (we will build the temple at the same spot) is enabled by the judgement, vindicating their stand that it was the birthplace of Ram. The least that could have been done by the judges is at least to grant the Babri mosque site to the Muslims. It is futile to say, as Chidambaram observed that it has nothing to do with the act of demolition of the Babri masjid on December 6, 1992. Once this judgement validated the basic claim of the vandals that the masjid was an illegitimate structure built after destruction of the Ram temple, the criminal case gets automatically weakened. The award of the title of the desired land to them accorded moral justification to the vandals’ act in retrospect. Even without this judgement, it was inconceivable that someone like Advani would be convicted for the vandals’ act. With the judgement, all those provocations of Advani and party that led the frenzied mob to raze the domes to ground get transformed into quasi truth.

The Judgement is falsely defended as reconciliatory. It does not reconcile anything, when it openly gives out the Hindus what they even could not expect themselves. The fact that there was no adverse reaction to the judgement from people anywhere is no proof that it was accepted by all the communities. In any case only the Hindutva forces have been the trouble mongers; Muslims just expected a fair deal from the court. They had kept calm when someone installed a Ram idol right at the centre of their masjid; they maintained it when the locks were put around the idol and later opened allowing the Hindus to perform pooja in their masjid; they preserved it even when they were communally abused all over the country during Advani’s Rath Yatra; they controlled it when it was demolished by the frenzied mob and rather suffered in its aftermath. Babri masjid, as it were, was more important to the Hindutva zealots than ever to the Muslims. They were hurt not as much by the loss of the masjid as by the breach of trust by the Indian state. Still they reposed faith in Indian judiciary but have now felt even betrayed there. The Muslims are in no position to take combative posture and are trying to display magnanimity even to the extent deciding not to appeal to the Supreme Court or to help Hindus build Ram temple at the allotted site. Actually, Mohammed Hashim Ansari, a nonagenarian leader of the Sunni Waqf Board proposed negotiated settlement with Mahant Gyan Das, who as the head of Ayodhya’s Hanuman Garhi temple and the Akhara Parishad, is said to have good influence over Nirmohi Akhara. The only hurdle they both perceive is with the Ram Lallawallahs, supported by the Hindutva gang.

It is the Hindus, particularly Ram Lallawalahs who having got what perhaps they had not expected are belligerent and want to appeal to the Supreme court. There was no question of any mischief this time for several reasons: one, the state did not want it because of the commonwealth games among others, and the Hindutva forces had lost their steam to recreate the mass frenzy as they did in 1990s. Even in their hey days, as many political observers would agree the Hindutva forces would not have been as successful as they did without the tacit support of the state. This time the political equations were not the same. In order to keep the issue alive, the Hindutva forces will certainly go for an appeal. Probably all the parties would. The dispute would take another ten years and until then the site would be a veritable minefield ready to explode any time. The government will have to cordon off the area with heavy security and consequent inconvenience to the local population. Therefore in practical terms the judgement would not serve even the purpose of paving the way for reconciliation as some commentators imagined. Chidambaram is right when he termed the judgement as “not operational”.

“I believe that the Ayodhya judgment will mark the start of a new chapter for national unity,” Advani told reporters in his first reaction to the Ayodhya verdict. By now everybody knows the Hindutva definition of ‘national unity’. It means that if the non-Hindus wish to live in India, they will have to live as per the terms of the Hindu majority. Advani could not hide his glee when he said, “It has affirmed the right of Hindus to build a temple at the sanctum sanctorum.” Indeed, that’s the crux of the Ayodhya judgement. But its import is not limited to just that. By allowing faith and belief to overtake reason it has pushed the jurisprudence back into darker times, portending a big threat to the Constitutional vision of India.

Dr Anand Teltumbde is a writer, political analyst and civil rights activists with CPDR, Mumbai.