Post Babri Masjid-Ramjanmabhoomi Verdict:
Whither Indian Democracy?
By Teesta Setalvad
17 December, 2010
Countercurrents.org
December 6-8, 2010
Muktadhara, Bhai Veer Singh Marg, New Delhi
The September 30 2010 verdict in the Babri Masjid-Ramjanmabhoomi case,
that began as a dispute over a title suit but escalated into a full
blown politico-religious conflict--- one that legitimized the criminal
assault on a 450 plus year old mosque as also targeted minority life
and property--- has raised serious issues for the future of Indian
democracy given the fact that the verdict was disproportionately based
on issues of contested faith and disputed histories.
A unique and well-planned three-day symposium organized in Delhi by
SAHMAT, Communalism Combat and Social Scientist brought together
academics, jurists and activists from different parts of the country
to deliberate various aspects and fallouts of the verdict at length.
Commemorating the 18th anniversary of December 6, 1992, the symposium
was jointly organised by SAHMAT, Communalism Combat and Social
Scientist. Over 200 activists, lawyers, artists and academicians
gathered to develop a deeper understanding of all the implications of
the Ayodhya verdict. Over four dozen organizations represented by
activists from Karnataka, Maharashtra, Gujarat, Madhya Pradesh and
Uttar Pradesh participated in the deliberations. The assault on the
Baba Boudhangiri shrine in Chikmagalur in Karnataka, the vigorous
struggle against the divisive hate speech of Swami Adityanath in
Gorakhpur in eastern Uttar Pradesh and other such struggles were also
discussed and analysed.
Over three days, many speakers made the point that the recent Ayodhya
judgement is actually an assault on the Indian Constitution and the
foundations of a secular democratic state. The Ayodhya verdict,
moreover implicitly justifies the 1992 demolition of the Babri Masjid
and related criminal acts and, if upheld, will have consequences for
the future of democracy itself.
Systematic decimation of the basic rational principles of the rule of
law laid down in the Indian Constitution, historiography, archaeology
and logic are the critical features of the infamous Ayodhya verdict of
September 30, said speakers Justice P.B. Sawant, Justice Hosbet
Suresh, Justice SHA Raza, Justice Rajinder Sachar, economist
Professor Prabhat Patnaik, historians Professor Irfan Habib and
Professor Shireen Moosvi, during the three-day symposium Faith and
Fact: Democracy after the Ayodhya Verdict that concluded in Delhi
today. Elucidating on the social composition of India’s judiciary as
also the inability to bring to book corrupt, casteist and communal
practices among Indian judges and lawyers, the discussions and
analyses at the symposium also highlighted the need to draw attention
to the politics within the judiciary.
Over three days of intense sessions at the symposium, the issues that
were discussed included: the consistent failure of the criminal
justice system, including non-investigation of the FIR registered on
the vandalism of the Babri Masjid on the night of December 23, 1949;
the systematic dilution of the criminal cases against the masterminds
who instigated the criminal conspiracy behind the demolition of the
Babri Masjid in 1992; and the motivated maligning of historians and
archaeologists who testified with evidence during the pendency of the
Ayodhya dispute before the Lucknow Bench of the Allahabad High Court.
All these were held to be the collective reason for the passage of a
verdict that has seriously shaken the faith of the common Indian in
the administration of justice.
The deliberate and conscious absence of any substantive mention of the
criminal acts of 1949 and 1992 by the two majority judges while
dealing with the title suit was, in the words of advocate Anupam
Gupta, counsel for the Liberhans Commission for over 12 years, the
singular injustice in this verdict. The judgement goes into thousands
of pages over mythology and faith, but ignores the criminal incursions
on the Babri Masjid under law. Even worse, the evidence presented by
historians and archaeologists in court was formally recorded in
monosyllabic answers to deliberately curtail and hide explanations
that are critical in explaining historical theory and evidence. Today
archaeologists and their publishers face contempt notices served by
the Allahabad bench of the Lucknow High Court.
Inaugural Session:
Professor Prabhat Patnaik who spoke at the inaugural session outlined
the keen need for institutions of democracy to justly adjudicate
without being influenced by the politics of power, aggression and
violence. The Judiciary especially in a seasoned democracy needed to
stay aloof and distant from transparent efforts to influence courts in
the deliverance of justice.
Flawed Historiography and Flawed Archaeology
Professor Irfan Habib, senior historian from the Aligarh Muslim
University and world renowned expert on medieval Indian history
presented a 96 page critique of Justice Agarwal’s 5,000 odd word
judgement---The Judgement and the Lore of Ramjanmabhoomi¬--the Ayodhya
judgement printed into a booklet by the Aligarh Historians Society.
Mr. Justice Sudhir Agarwal aims in his judgement to prove that the
Babri Masjid was built not during the reign of Babur, in 1528, but
only under Aurangzeb (died, 1707). Relying on a little known traveler
Fr Joseph Tieffenthale who visited Ayodhya between 1740 and 1765 AD
and quoting from him about the memory of the mosque being built over a
demolished fortress called Ramcot (Tieffenthaler’s words), Justice
Agarwal has rubbished the authenticity of the inscriptions over the
mosque.
The Judge has interpreted the inscriptions as later forgeries made
between say 1760 and 1810 despite these inscriptions having been
accepted and relied upon as genuine by practically every historian and
epigraphist until now, Fuhrer AS Beveridge and the Epigraphic Indica,
Arabic an Persian Supplement, 1965 (an official publication of the
Archeological Survey of India).
The Judge in his voluminous judgement uses harsh words to dismiss this
official publication and the evidence brought in thereof on the
inscriptions over the mosque entitled “Inscriptions by Emperor Babur.”
Dr Z.A Desai, then Superintendent, Persian and Arabic Inscriptions,
ASI and a great authority among India’s Arabic and Persian epigraphist
edited this volume.
This inscription that remained in position at the entrance of the
mosque until December 6, 1992 when the kar sevaks carried out their
act of demolition and if it does not exist now it is owing to that
criminal act. As to the significance of Tieffenthaler’s not mentioning
the inscriptions, it needs stressing that in history negative
inferences of this kind are hardly ever given credence. One famous
example is of
that other famous “intellectual giant and linguistic wizard”, Marco
Polo’s failure to mention the hugely ancient Great Wall of China
during his trials and subsequent writings If Applying the same logic
that Justice Sudhir Agarwal has used in his argument, if one is ever
asked to decide when the Great Wall was built, one should immediately
say, after Marco Polo’s travels, i.e. after 1300 AD!
Justice Agarwal also here overlooks the fact that about ninety
years before the Epigraphia Indica – A. & P. Supplement, 1965, both
the gate and the pulpit inscriptions of the Babri Masjid had been
mentioned in The Gazetteer of the Province of Oudh, edited by W.C.
Benett, issued as an official publication in 1877-78, Vol.I, pp.6-7.
Plate 1, Plate 2 Babri Masjid: Inscriptions and Date of Construction.
“In two places in the Babri Mosque”, it says, “the year in which it
was built, 935 H., corresponding with 1528 AD, is carved in stone
along with inscriptions dedicated to the glory of the Emperor.” It
will be noticed that this is much older than Fuhrer’s reading of the
inscriptions, but is quietly ignored in Justice Agarwal’s summary of
the reports on the inscriptions (Para 1650). Benett’s statement is
confirmed in H.R. Nevill’s Fyzabad District Gazetteer, with Preface
dated 1905 (volume reprinted, 1920). On page 179 we are told: “The
Mosque has two inscriptions, one on the outside and the other on the
pulpit and bear the date 935 Hijri. Of the authenticity of the
inscriptions there can be no doubt. Thus two official reports clearly
say that the inscriptions on the entrance and the pulpit gave the date
935 Hijri (=1528 AD) and that they belonged to the reign of Babur. One
of them goes on to attest their undoubted authenticity.
In reaching the conclusion over the allegedly later construction of
the Babri Masjid, Justice Sudhir Agarwal ignores dealing with other
crucial issues relating to the date of the building such as
architectural design and technique of construction. In the critique
presented at length by the Aligarh Historians Society what emerged was
not only that a Judge of the High Cout has spent a substantive part of
his 5,000 page judgement based on a narrow understanding of faith but
worse has misrepresented historiography and archeology especially with
relation to Indian medieval history a specific target by Hindu
communal forces since the early 1900s.
The Judge’s remarks not only on Babur himself whom he views as “a
completely Islamic person”…who….” lacked tolerance to the idol
worshippers” (Para 1563) is compounded by his (Judge Agarwal’s)
distinctly flawed understanding of medieval Indian history as a whole
which is also reflected in the judgement:
“Another surprising aspect was that the Indian subcontinent
was under the attack/ invasion by outsiders for almost a thousand
or more years in the past and had been continuously looted
by them. Massive wealth continuously was driven off from the
Country.” (Para 1611)
This sentence suggests a rather one-sided view of the history of
medieval India. Was India before the British ever governed from
outside of it, from a place to which wealth could be continuously
transferred? Whoever looted, whether Sultans or Rajas, lived within
India and moreover the wealth stayed within.
Dr S. Ali Nadeem Rezavi’s erudite presentation on the evolution of
mosque architecture over the several hundred years of Mughal rule
shows a distinction in the architecture between the times of Babur and
Aurangzeb. It can easily be established, by the style and technique
employed in a building, whether it was built in the pre-Mughal or
early Mughal times or later.
The Babri Masjid is recognizably built in the Sharqi style of
architecture (seen noticeably at Jaunpur) with the characteristic form
given to the propylon. The domes though large are very heavy. This
style became obsolete soon after; and well before Aurangzeb’s time,
light (even bulbous) domes with free standing minarets became the
hall-mark of a mosque.
One of the most critical failures of the entire process of litigation
undertaken over several decades by the High Court was brought out
eloquently by eminent historian Dr Shireen Moosvi who pointed out how
the process of recording evidence by the court, from expert historians
and arhaeologists had been reduced to a farce. Propositions of
historiography and archeology, often rather complex, needed to be
answered/explained in a couple of sentences. Yet the court by
insisting that such expert witnesses testified only in monosyllabic
“yes” or “no” reduced the business or process of recording expert
evidence within the court to a farce.
In Indian criminal law too, each witness has a right in law to record
explanations after his/her answer and the high court’s refusal to
allow this basic legal process has subverted the course of justice.
Two publications Archaeology After Demolition, Archaeology after
Excavation authored by world renowned achaeologist D. Mandal faced
contempt proceedings initiated by the very bench that delivered the
Ayodhya verdict. The deliberate act of the higher judiciary in
curtailing the academic thought and freedoms of independent historians
and archeologists on a highly charged politico-religious conflict
fomented to garner votes, albeit by using a colonial and archaic
Contempt of Court’s Act was evidence if any needed of the sinister
politics behind the process of justice subversion in this case.
Whereas Justice Agarwal has high praise in his judgement for the team
of ASI officials set up by the BJP driven NDA regime in destroying
valuable portions of the historical Babri Mosque including what
survived after the demolition, the Justices have failed to go into the
politics behind this excavation unleashed by a virulently communal BJP
led NDA regime in which the architect of the bloody rath yatra (that
has been castigated by Justice Liberhans in his report) LK Advani, a
man thereafter to become India’s home minister and deputy prime
minister and Murli Manohar Joshi the Minister for Human Resources
Development who both played pivotal negative roles.
Far from questioning the politics behind the motivated excavations,
the Judge reposes full trust in the ASI’s subsequent doctored report
that has also not in full form been made available for study by
experts. Professor Irfan Habib pointed out that the present government
at the Centre was complicit in allowing a flawed report of the
Archaeological Survey of India (ASI) to stand.
1949, 1992—Indian Systemic Response to Illegal Acts
Advocate for the Liberhans Commission for about a dozen years, Anupam
Gupta spoke passionately about the history of this litigation that had
failed conspicuously to deal with the illegal actions of criminal
trespass into the mosque on the night of December 23, 1949 and
placement of the Ram Lalla idols within, an action that could not be
reversed despite repeated written communications and directives of
India’s first prime minister Jawaharlal Nehru to the SP KKK Nayyar who
thereafter joined the Jan Sangh, the precursor to today’s BJP. He was
strongly critical of he judgement of Justice Agarwal that could spend
over 5,000 pages on the mythological aspects of Lord Ram’s birth but
had no space nor concern for the criminal actions of 1949 and 1992.
The FIR for criminal trespass lodged reluctantly by the SP at the time
and the conduct of the District Magistrate PP Pandey who therafter
also joined in the political frenzy for demolition of the mosque has
never been investigated by law enforcement agencies.
During the much publicized and widely watched kar seva of December 6,
1992 that took place in violation of undertakings made before India’s
Supreme Court by then Uttar Pradesh Chief Minister Kalyan Singh,
interestingly the frenzy displayed by kar sevaks under the leaderships
of LK Advani, Murli Manohar Joshi and Uma Bharati – that was also
celebrated by mediamen Chandan Mitra and Swapan Dasgupta present at
the spot—did not extend to destroying the idols placed surreptitiously
within in 1949. These were carefully removed and brought back four
days later to the spot after the demolition was complete.
The role of then central government headed by prime minister Narasimha
Rao who had deployed central paramilitary forces to the spot who stood
by and watched as a mob unleashed criminal acts was also commented
upon by speakers.
Journalist Manoj Mitta detailed the deliberate dilution of the
criminal cases related to the demolition of the Babri Masjid in 1992
especially by the NDA regime. Of the 49 FIRs lodged at the time, 47
related to attacks on journalists. Of the other two, one related to
the FIR related to criminal conspiracy and mob attack on the mosque in
which LK Advani and Murli Manohar Joshi had been named as the
masterminds behind the mob attack and the second related to the
venomous hate speeches delivered before, during and after the act of
demolition by them. During the five years of the NDA regime, the
central government deliberated deleted names of the three top leaders
of the BJP as master conspirators now arguing that a headless mob had
performed the illegal act. The two cases are now being heard
separately, deliberately weakened by partisan interference by the
executive.
Interestingly, the Supreme Court has itself not pursued the contempt
case against the top leadership, national and state of the Bharatiya
Janata Party that consciously and shameless broke their undertakings
to the apex court in the country.
A screening of Ram ke Naam with a discussion by filmmaker Anand
Patwardhan brought live to the audience aspects of the narrative that
had been deliberately made to vanish from the public consciousness and
criminal and other proceedings in our courts. The sudden, brutal and
unexplained murder of Baba Laldas in 1993 –the court appointed Mahant
of the Disputed site after he had openly criticized the politics of
the VHP and BJP, was one. Another was the similarly mysterious murder
of an IAS officer carrying valuable documents from the Faizabad
collectorates to the Liberhans Commission in the late nineties. None
of these crimes have been investigated.
Voices From Faizabad Ayodhya
Acharya Jugal Kishore Shastri and Magsassay award winner Sandeep
Pandey spoke at length on the manner in which democracy dissent and
syncretic worship had been stifled at Ayodhya. The murder of 17
Muslims on December 6, 1992 while the demolition was on has gone
uninvestigated, as has the deliberate arson of over 300 Muslim homes
and businesses while the Babri masjid was being brought down in 1992.
Politics of the Judiciary
Justices PB Sawant retired from the Supreme Court, Justice Hosbet
Suresh retired from the Bombay high court and Justice SHA Raza from
the High Court, Allahabad and Lucknow spoke extensively on the
politics within the higher judiciary related to the Babri Masjid
Ayodhya dispute as also majoritarian Hindutva politics in general and
its influence over the judiciary and executive.
A panel that dealt exclusively with the implications of a spate of
election petitions emerging from Maharashtra/Bombay High Court in the
late 1980s elucidiated how in one of these, a bench of the Supreme
Court had legitimized a politico-religious movement Hindutva and
deliberately confused it with Hinduism, thereby consciously or
unconsciously according judicial weight to the politics of aggressive
majoritarianism symbolized by the emergence of the Bharatiya Janata
Party (BJP) with over 90 seats in India’s Parliament.
Election Speeches made by Shiv Sena leaders Subhash Desai, Ramesh
Prabhoo and Manohar Joshi, during state assembly elections, invoking a
politically aggressive Hindutva and accompanying these with derogatory
statements against India’s religious minorities had been uniformly
held by the Bombay high court to violated sections of the
Representation of People’s Act, ie were held to be misusing religion
for political ends. Unfortunately however while upholding the high
court rulings in two of the cases, the Supreme Court, in Manohar
Joshi’s case legitimized the election of the man who by then had
become Speaker of the Lok Sabha.
Since then, in two cases, Abhiram Singh v/s CD Commachen and Ors and
another, the Supreme Court, holding that these contentions made in the
Hindutva Judgement (December 1995) need to be placed before a
Constitution bench, five member or seven member and re assessed.
However the apex court has since not found time to constitute the
larger constitution benches for these cases. Advocate BA Desai from
Mumbai who was instrumental in getting one of these cases referred for
review before a constitutional bench attended the symposium and spoke
at length on the distinction between Hindutva and Hindusim.
Teesta Setalvad, co editor Communalism Combat presenting her
conclusions in a paper Hate Speech and Indian Courts pointed out how
the judiciary in general but the higher judiciary in particular had
been markedly lax in developing a sound jurisprudence on hate speech.
Offences under Indian criminal law related to sections 153a, 153b, 505
and 295 of the CRPC and relate to words and speech, written or oral
meant to foment violence and hatred against sections of the
population.
The Bombay High Court’s justification of Bal Thackeray’s rantings in
Saamna in 1992-1993 at the height of the post Babri masjid violence,
wherein they justified the venom used against India’s Muslims on the
grounds that “the words were under anti national Muslims” was not
corrected by the Indian Supreme Court (JB De Souza and Dilip Thakore
v/s State of Maharashtra). Setalvad pointed out how a nationwide
campaign urging the Supreme Court to review its decision to dismiss
the special leave petition backed by 30,000 signatures was also
ignored by the Indian Supreme Court. A campaign by citizens in May
2007 after Varun Gandhi’s venomous speeches made during the Uttar
Pradesh state elections also resulted in no effective curbs on the
candidate, by the Election Commission. Not only did the candidate win
from Pilibhit constituency in Uttar Pradesh but neither the political
class nor the executive nor the CEC nor the judiciary pursed any
logical steps to ensure that he or his part paid, punitively for the
hate and venom used by him during elections in 2007. Advocates
Prashant Bhushan, Supreme Court , Mihir Desai, Bombay High Court and
Ravi Kiran Jain, Allahabad High Court made pertinent references to the
reluctance of the judiciary to intervene effectively in these matters.
A landmark judgement passed by a larger, nine member bench of the
Indian Supreme Court (Justices Pandian, Ahmadi, Kuldip Singh, JS
Verma, PB Sawant, K Ramaswamy, SC Agarwal, Yogeshwar Dayal and Jeevan
Reddy) had in 1994 itself –in SR Bommai v/s Union of India, the case
that dealt with the dismissal of the BJP governments by the Centre
following the demolition of the Babri Masjid on December 6, 1992 and
nationwide violence against minorities--- has held secularism to be
the basic and inalienable feature of the Indian Constitution. However
this judicial landmark was ignored by the Hindutva judgement passed a
year later in 1995.
Fallout of the Politics of Faith
Participation of vibrant panels of speakers from the states of
Karnataka, Madhya Pradesh, Gujarat, Maharashtra and Uttar Pradesh gave
grassroot level insights into the fallout of the politics of faith
since the late 1980s and early 1990s.
The serious contestation over the Baba Boudhangiri shrine in
Chikmagalur district of Karnataka has been averted by a vibrant
movement of the Karnataka Communal Harmony Forum since 1998 (Karnataka
Komu Souharda Vedike). A decade after mass mobilizations at the
district to contest the violent mobilization by the BJP and rest of
the sangh parivar, the Veddike and Citizens for Justice and Peace had
moved the Supreme Court against the illegal actions at the local
level. Though the Supreme Court had granted a stay on these acts,
subsequent moves by the government of Karnataka and the collectorate
of the district where the shrine is located that amounted to contempt
had not been seriously or severely commented upon by the Supreme
Court.
This and other matters filed under the Places of Worship Act, 1991
have failed to evolve a robust jurisprudence with the reluctance of
the higher judiciary to curb and censure criminal and illegal acts.
Teesta Setalvad pointed how, in May 2003 Communalism Combat had
reproduced exclusively a list of 30,000 temples listed and mentioned
by both the Bharatiya Janata Party and the Vishwa Hindu Parishad (VHP)
to capture, illegally seize 30,000 shrines that are currently minority
or syncretic places of worship.
In Varanasi on December 29.2002 the BJP MP Vinay Katiyar who built his
political career through the Bajrang Dal demanded that Muslims hand
over the Kashi and Mathura Mosque to the VHP-Bajrang Dal. Thereafter
on March 1, 2003, in Badohi Uttar Pradesh and again on March 10 2003
Praveen Togadia, international general secretary of the VHP repeated
the threats with more potent venom. The RSS too, through its
spokesman, MS Vaidya declared its full support to the VHP plan to
“free” the Kashi/Mathura shrines. Renowned historian KM Shrimali
elaborated how the Baba Ramdev shrine in Rajasthan has been taken over
by right wing majoritarian politico-religious groups. Setalvad pointed
out how the Piarana Dargah in Gujarat is in a similar way the target
of communal forces.
A vibrant citizens initiative from the minority community since 2005
has managed to curtaile the hate speech of Swami Adityanath in
Gorakhpur. Advocate Assad Hayat and Parvez Parvaaz spoke about their
successful efforts to get the judicial order of registration of an FIR
against the virulent godman who has had to rush to the Supreme Court
for a stay order.
The intellectually stimulating and rich discussions over three days
covered professional historiography, archaeology, activism, legal and
judicial precepts and the rule of law. The real motive and intent
behind the politics of the Ramjanmabhoomi movement was not for a
temple in the name of Lord Ram, but to misuse the language and
discorse of faith to politically mould the country academically and
otherwise into a majoritarian state.
