Editor's note: This article was originally published on 5 November. It is being republished in light of the CJI Ranjan Gogoi-led Supreme Court bench being slated to deliver the verdict in the Ayodhya land dispute case on Saturday at 10.30 am.
The Ayodhya issue has dominated the politico-administrative discourse for almost 70 years. Legal aspects of the dispute have also come into focus from time to time. A detailed study and analysis of the legal proceedings by judicial and executive authorities indicates that so far, such proceedings have only supported and legitimised the fait accompli created at crucial times. Thus, the legal history of this issue has been an aggregate of the fait accompli episodes created generally by force, either of sword or majority, in the context of certain situations.
The sim of this piece is not to comment on the ownership or the title of land in dispute. It merely attempts to underline the legal endorsements of the fait accompli situations and consequent status quo but never venturing into proclaiming/establishing the status quo ante (as it was prior to change).
Genesis of Babri Masjid
Babri Masjid was built in 1528 by Mir Baqi Tashqendi, a general of Mughal emperor Babar. It is also argued by some scholars that it was built by Aurangzeb in honour of his great grandfather. For purposes of our discussion, it is immaterial whether Babar made it himself or he ordered Mir Baqi to make it or Aurangzeb made it. The fact remains that the mosque was allegedly, forcefully, built on the spot which was held sacred by the Hindus wherein, their God incarnate Ram Chandra was believed to be born. Hence, this was fait accompli - 1 created by the conqueror.
For about 350 years, which incidentally coincides with the total span of the Mughal empire, the situation continued more or less the same until the disturbances of 1853-55. The only change was the erection of a separation wall within the courtyard allowing the inner court to be used by Muslims and the outer court by Hindus.
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Representational image. AFP
Legal war over ownership of disputed begins in 19th century
The first legal challenge occurred in 1885.
On 15-29 January, 1885, Mahant Raghubar Das, claiming to be the Mahant of the Janmasthan, filed a Civil Suit No. 61/280 of 1885 in the Court of Sub Judge of Faizabad against the Secretary of State for India in Council for:
a decree for awarding permission to construct a temple over the Chabutara Janmasthan situated in the complex, and;
restraining the defendant from prohibiting or obstructing the plaintiff in the construction of the temple. One of the defendants was the Mutwalli (the caretaker) of the mosque.
The parties adduced extensive documentary and oral evidence. The Sub Judge of Faizabad, Pandit Hari Kishan Singh dismissed the suit by a judgment dated 24 December 1885. His concluding observations were: “….if permission is given to Hindus for constructing a temple, then one day or the other a criminal case will be started and thousands of people will be killed.”
The plaintiff appealed to the district judge, Faizabad Vide judgement of the District Judge, Col. F.E.A. Chamier in Civil Appeal No. 27/1885 dated 18th March 1886, which was also dismissed. The district judge, however, observed: “I visited the land in dispute yesterday in the presence of all parties. I found that the masjid built by Emperor Babur stands on the border of the town of Ayodhya, that is to say to the west and south it is clear of habitations. It is most unfortunate that a masjid should have been built on land specially held sacred by the Hindus, but as that event occurred 356 years ago it is too late now to remedy the grievance, all that can be done is to maintain the parties in status quo. In such a case like the present one any innovation could cause more harm and derangement of order than benefit."
Unrelenting, the mahant further appealed on 25 May 1886 to the Highest Court in the province of Oudh. The Judicial Commissioner W Young also dismissed the appeal by his judgment dated 1 November 1886 and observed:
“This spot is situated within the precinct of the grounds surrounding a mosque erected some 350 years ago owing to the bigotry and tyranny of the emperor who purposely chose this holy spot, according to Hindu legend, as the site of his mosque. …The Executive Authorities have persistently refused these encroachments and absolutely forbid any alteration of the status quo………I think this is a very wise and proper procedure on their part and I am further of the opinion that the Civil Courts have properly dismissed the plaintiffs claim.”
From the above analysis, it is evident that all the three layers of courts dismissed the case filed by Mahant Raghubar Das and no relief as prayed was granted to him. The central theme in dismissing the case was that any alteration in the status quo would result in disruption of law and order and grave consequences. Though it was admitted by the courts that the event of construction of mosque occurred 350 years ago, but it was too late to remedy the grievance and all that could be done was to maintain the parties in status quo. Essentially, it amounts to legalizing and legitimising the fait accompli - 1.
Partition of India and its impact on the disputed site
In the wake of partition and charged communal climate, another fait accompli happened. In the intervening night of 22/23 December 1949, idols of Ram and others were placed in the central dome of the structure by Hindus. It was not all of a sudden. Massive puja and kirtans in the vicinity of the complex were going on for many days. In fact, the miracle was the climax to a nine-day, non-stop recitation of Ram Charit Manas (Akhand Ramayan) just outside the mosque organised by the Akhil Bhartiya Ramayan Mahasabha. Generally, the contention of Hindu side was that ‘on the historic morning of 23 December 1949, the idols of Sri Ram Chandra and Sita Devi miraculously appeared in the Janmasthan’. Incidentally, 23 December was a Friday. Immediately after this incident, as is natural, a huge number of devotees started thronging the place.
Post this incident, the functionaries of the Faizabad district administration became aware of the developments and usual reports were lodged. An FIR about the incident was lodged by Sub-Inspector Siyaram Dubey at Police Station Ayodhya on 23 December 1949. The correspondence between the district officers and the state government as also between the Centre and state government throws much light on happenings. This was fait accompli - 2. Let us see how the matter played out thereafter and got legal validation/acquiescence.
Subsequently, proceedings u/s 145 Cr P C were started by additional city magistrate, Faizabad. In short, the law provides a summary remedy against forcible dispossession leaving the claimant free to prove title in a regular civil suit against the party originally in possession. But, possession is first speedily restored to the dispossessed. It was not done. The shrine was locked and the site was attached u/s 145 CrPC by Markanday Singh, additional city magistrate “after being fully satisfied that a dispute between Hindus and Muslims of Ayodhya over the question of rights of proprietorship and worship in the building is likely to lead to a breach of the peace”.
Priya Dutt Ram, chairman, Municipal Board, Faizabad cum Ayodhya was appointed as receiver to arrange for the care of the property in dispute on 29 December 1949. The order was published in newspapers and affixed on notice boards of police stations and other government offices as the names of the parties to the dispute were not known.
In the process, the crucial issue of restoration of possession was ignored. The property was attached. The party dispossessed was denied access totally. Muslims were forbidden to enter the mosque. The party, which took over the site forcibly and surreptitiously acquired access to the structure. According to the receiver’s scheme, the Muslims were altogether forbidden to pray in the mosque, and Hindus were permitted to offer Puja and have darshan of the idols from a side gate and make offerings through four pujaris employed by the receiver.
Another legal suit comes up
Subsequently, Civil Suit No. 2/1950 was filed on 16 January 1950 by Gopal Singh Visharad in the Court of Civil Judge, Faizabad. His prayer was for:
declaration that he was entitled to worship and visit without obstruction or disturbance Sri Bhagwan Ram Chandra and others installed at Asthan Janmabhumi, and a perpetual injunction restraining the defendants from removing these idols.
Defendants were five Muslims of Ayodhya, the state of Uttar Pradesh, the deputy commissioner and the superintendent of police of Faizabad. On 16 January 1950, the civil judge NN Chadha granted an interim injunction as prayed for. After a modification application, the order dated 16 January 1950 was modified on 19 January 1950 as under:
“The parties are hereby restrained by means of the temporary injunction to refrain from removing the idols in question from the site in dispute and from interfering with the puja etc., as at present carried on.”
This interim injunction was later confirmed by the civil judge by his order dated 03 March 1951 with this observation: "The undisputed fact remains that on the date of this suit, the idols of Shri Bhagwan Ram Chandra and others did exist on the site and that worship was being performed by the Hindus including the plaintiff, though under some restrictions put by the Executive Authorities."
It is clear that the undisputed fact of the presence of the idols was created by force and sheer justice required for the restoration of the status quo ante. This circumstance seems to have been ignored by the judge even in a civil proceeding, where both title and possession are relevant. The high court confirmed this order on 26 April 1955. Thus, the forcible dispossession of 22/23 December 1949 was sanctified and continued in judicial proceedings. This was the confirmation and even validation of the fait accompli - 2.
It may be mentioned in the passing that the following suits were also filed in the matter:
i) Civil Suit No. 25/1950 by Paramhans Ram Chandra Das vs. Zahur Ahmed & others. This suit was dismissed as withdrawn as it was almost similar to the suit filed by Gopal Singh Visharad,
ii) Suit No. 26/1959 was filed by Nirmohi Akhara vs Babu Priya Dutt Ram & Others for the discharge of the receiver appointed u/s 145 CrPC and delivery of possession of the mosque to them,
On 18 December 1961, the first Civil Suit was filed being Suit No. 12/1961 by the Sunni Central Waqf Board vs Gopal Singh Visharad & Others. This suit came to be treated as the leading suit in title suits, and;
The fifth and final suit was filed by Justice Devaki Nandan Aggarwal with Shri Ram Lala as plaintiff number one being Suit No. 236/1989.
Finally, all these suits were grouped together and transferred to the High Court of Allahabad. However, the attachment of the site u/s 145 CrPC and permanent injunction by the civil judge in his order dated 03 March 1951 continued as such till 1 February 1986!
Hindu organisations up the ante
As the mobilisation by Hindu organisations and political developments were gaining momentum, a local lawyer filed an application on 25 January 1986 in the Court of Munsif, Faizabad seeking the removal of the restrictions on the puja (which were imposed in 1950-51). It was an application in the civil cases to which he was neither a party nor did he implead the Muslims, who were parties in the suits. Since the file in the main case of 1961 was in the high court and orders could be made only in that suit, the Munsif declined to pass any orders.
An appeal was filed on 31 January and heard on 01 February 1986. An application by Md Hashim for being impleaded was rejected. KM Pandey, the district judge of Faizabad recorded the statements of the then district magistrate and superintendent of police on the issue of law and order. He observed: “It is clear that it is not necessary to keep the locks at the gates for the purpose of maintaining law and order or the safety of idols. This appears to be an unnecessary irritant to the applicant and other members of the community.”
Having refused to hear the Muslims altogether, the judge said: “After having heard the parties, it is clear that the members of the other community, namely, the Muslims, are not going to be affected by any stretch of imagination, if the locks of the gates were opened and the idols inside the premises are allowed to be seen and worshipped by the pilgrims and devotees. It is undisputed that the premises are presently in the court’s possession and that for the last 35 years Hindus have had an unrestricted right of worship as a result of the court’s order of 1950 and 1951. If the Hindus are offering prayers and worshipping the idols, though in a restricted way for the last 35 years, then the heavens are not going to fall if the locks of the gates are removed. The district magistrate has stated before me today that the members of the Muslim community are not allowed to offer any prayers at the disputed site. They are not allowed to go there."
The entire proceedings were concluded in great haste. The order was issued on the same day. Acting promptly, the district administration opened the locks within an hour displaying great celerity to implement the orders of the district judge. Such a swift action is unusual and gave rise to avoidable suspicion. People, in general, read many things in the alacrity shown by the system. This was fait accompli 3.
This is a curious judgment. The Munsiff’s order could not be appealed. Umesh Pandey was not a party to suit No. 2/1950. All the four suits had been consolidated and Suit No. 21/1961 was made the leading case, yet the Muslims were not heard for reasons recorded by the district judge. On 03 February 1986, Md Hashim applied for quashing of the order before the Lucknow bench of the high court in writ petition No. 746 of 1986. The court ordered the same day that “until further orders of the Court, the nature of the property in dispute as existing today shall not be changed”. This was the confirmation of fait accompli 3. Thus, one side has benefitted by successive interim orders of the courts endorsing the altered status quo in 1949 and 1986.
The observations made by renowned author AG Noorani in 1990 are pertinent in this context. He wrote, “The first step taken was in December 1949, to oust Muslims from the Babari Masjid and convert it into a Mandir with limited rights of access to the lay public. The next step has been taken in February 1986, to remove the restrictions. The last step contemplated is the demolition of the mosque and the construction of a temple on its site." Demolished it was very soon. The construction of the temple is yet to happen.
Demolition of Babri Masjid didn't happen at the spur of the moment
This brief narration of the sequence of events is given to appreciate that the incident of demolition of the disputed shrine on 6 December 1992 was not all of a sudden or a secret activity. All stakeholders were aware of it and, in fact, working overtime.
After the opening of locks, massive mobilisation started by both, Hindu and Muslim, sides. Many rounds of negotiations, meetings of National Integration Council, various Yatras etc. were held. Shilanyas, foundation laying, for the proposed Ram temple was done on 9 November 1989 in the complex. A call was given by the Hindu organisations for kar sewa to begin on 30 October 1990. On 25 September 1990, a Rath yatra was launched by BJP leaders from Somnath to Ayodhya. The politico- communal atmosphere was highly charged on this emotive issue by October 1990. On 30 October, the day of kar sewa, despite elaborate arrangements, some kar sewaks climbed and damaged the disputed structure resulting in police firing killing some of them. Use of force was repeated on 2 November 1990.
Within a few months of this incident, political dispensation changed both in Uttar Pradesh and Centre. Uttar Pradesh got BJP and the Centre a Congress-led government. The state government started some facilitative activities and demolished many temples and structures in the vicinity of the shrine apparently "to promote tourism".
Dilution of security and access control mechanism was undertaken. Now, the involvement of higher courts also became more intense. The first phase of kar sewa began on 9 July and stopped on 26 July 1992. An announcement was made in the meeting of Dharma Sansad for the resumption of kar sewa on 6 December 1992. On 28 November 1992, on the assurances given by the Government of Uttar Pradesh on affidavits, the Supreme Court passed orders clarifying that kar sewa would be symbolic and not entail any construction. It also appointed a judicial observer at Ayodhya to watch the activities and report directly to the Supreme Court.
On 06 December 1992, huge crowds started gathering in the complex. The kar sewa was to be symbolic or so it appeared to the state’s security arrangements. In reality, everything seemed to be on the mercy of the kar sewaks. Very soon the situation went out of control and the disputed structure was demolished by kar sewaks within hours. The idols were removed and re-installed at the same place. A platform was made on the debris of the central dome. A wall and shed were erected on 06 and 07 December. The President’s Rule was imposed and Uttar Pradesh government was dismissed and the state Assembly dissolved. In the early hours of 08 December 1992, Central Para Military Forces took control of the complex. The puja of the idols was stopped at the time of takeover around 3.30 am but restarted in the evening which remains unexplained.
Failure of the state administration and security apparatus to accurately judge volatility of the situation
That the demolition of the disputed shrine happened right under their nose was evident of the fact that the state administration and security machinery failed to make any effective intervention. It was a perfect déjà -vu of the violent inter-community clashes in 1855. The gazetteer of Faizabad records that during the rule of Nawab in 1855, “the King’s regiments kept on standing but their orders were not to interfere”. The reasons for this non-intervention could be legal and practical problems in a fast-developing situation. The fact remains that any meaningful intervention by security set up could not take place.
By around 6 pm everything was over and elementary construction activity for a makeshift temple, which stands there till today, was undertaken. Ram Lala idol had been reinstalled at the same place. The only small remnant of the past that was not destroyed is the small pillar believed to be erected in 1886 bearing words Ram Janmabhumi. With the demolition, many visible things and materials disappeared as well as revealed. Ram Chabutra and Kaushalya Rasoi (which has been wrongly written as Sita Rasoi at many places) were also demolished. With that also ended many different theories about the resolution of the dispute.
On that day, the judicial observer at Ayodhya also sent his report to the Supreme Court. The demolition of the disputed structure and resumption of puja on 06 and 08 December 1992 was the fait accompli - 4.
Madhav Godbole, the then Union home secretary writes about his conversation with PR Kumaramangalam, then Minister of State for Law and Parliamentary Affairs on 07 December 1992 thus: “Since the construction of the temple (makeshift) was unauthorized,” Kumaramangalam asked, “Can it not be destroyed while taking over the complex (by Centre)?”. He said he had spoken to the prime minister (PV Narasimha Rao) who agreed this could be done. Godbole told him, “All that we (Govt.) could try to do was to take over the complex. The rest would have to be left to the courts to decide.”
After the evacuation of kar sewaks and priests from the area and the makeshift temple, the puja was stopped around 3.30 am on 08 December and remained so till the afternoon. In hectic meetings of the administration in Ayodhya, the resumption of puja was now the most important issue to be deliberated and decided. One view was that since the puja had been disrupted and the structure was no more in existence, no puja could be permitted. But, it was started in the evening on 08th. How was it started and on whose order it was started is inexplicable.
The fact is that the puja was started but darshan for the general crowd was restricted. This became the new status quo now. Would this status quo continue now or the status quo ante be ordered by the government or judiciary became the next concern. No status quo ante has been ordered since then. The status quo continued, the puja continued and after some flip-flop, the darshan continued. No change. Thus, by the subsequent orders or lack of orders, from either the government or the judiciary also confirmed and validated the fait accompli - 4.
Future course of action post-demolition of the disputed structure
The most critical question immediately after the demolition before everyone — political leadership, judiciary, security establishment and people in general — was about the future course of action on the ground. Some of the issues that were agitating the minds of every one were:
• Would the original structure (disputed) be restored?
• Would the mosque alone be re-constructed?
• Would it be converted into a regular temple?
• Would it be attached u/s 145 CrPC as it was done in 1949?
• Would it be left at the point where it was left by the kar sewaks in the morning of 08 December before they were flushed out of the complex by CPMFs and the puja of reinstalled deity be resumed?
None of the actions as mentioned above in the first four questions was resorted to. As stated above, the puja was resumed in the evening of 8 December which continues to date uninterrupted. Thus, it was the demolition of the shrine and the resumption of puja that made the most critical difference to the situation both practically and legally.
Admittedly, there was shock and surprise all around. All words in dictionaries were exhausted to condemn this act of barbarism and vandalism. Since then, volumes have been written on the issue by general and professional writers. There have been administrative measures and judicial verdicts. But, they all acquiesce in and ratify the fait accompli 4.
Supreme Court expresses displeasure
The Supreme Court held a special sitting on the day of demolition and observed that “it was a great pity that a constitutionally elected government could not discharge its duties in a matter of this sensitiveness and magnitude”.
The Supreme Court in its judgment in Ismail Faruqui Vs Union of India and Ors (1994) 6 SCC 360 observed about the demolition (Para 7): "There was a call for resumption of kar sewa from 6th December, 1992and the announcement made by the organizers was for a symbolic kar sewa without violation of the court orders including those made in the proceedings pending in this court. In spite of initial reports from Ayodhya on 6th December, 1992 indicating an air of normalcy, around mid-day a crowd addressed by leaders of BJP, VHP etc., climbed the Ram Janma Bhumi- Babari Masjid( RJB- BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of national shame. What was demolished was not merely an ancient structure, but the faith of the minorities in the sense of justice and fairplay of the majority. It shook their faith in the rule of law and constitutional processes. A five-hundred-year-old structure which was defenceless and whose safety was a sacred trust in the hands of the State government was demolished."
The prime minister in his speech in Lok Sabha on 07 December 1992 announced that the mosque would be rebuilt. The then home minister made a statement in the Parliament on 18 December 1992 that “as already announced, the Govt. will see to it that the demolished structure is rebuilt (Para 6 of the speech)”. He also announced that “the Govt. have decided that appropriate steps will be taken regarding the construction of a Ram temple (Para 7)”.
In the Acquisition of Certain Area at Ayodhya Ordinance 1993 issued on 07 January 1993, the maintenance of status quo has been clearly mentioned in Section 7(ii): "The Central Government…….shall ensure that the position existing before the commencement of this Ordinance in the area on which the structure…. stood ………is maintained."
The ordinance came into effect on 07 January exactly a month after the demolition. Obviously, the status quo of the post demolition position was to be maintained, notwithstanding the statements of the prime minister and home minister in Parliament on 07 and 18 December 1992 respectively. The status quo still continues; not even a minimal change in the situation.
Allahabad High Court delivers judgment on in 2010 but the ball is with the Supreme Court now
Certain writ petitions relating to the acquisition of 2.77 acres of land in RJB-BM complex were pending before the Allahabad High Court. The judgment was reserved which was to be pronounced on 04 December, two days before the kar sewa. But, it was not. However, the high court delivered the judgment very promptly after demolition on 11 December 1992! It allowed the petitions and quashed the notifications for land acquisition on the ground of malafide by the state government.
Subsequently, the title suits were decided by the Lucknow Bench of the Allahabad High Court in 2010. The order of the high court does not change the situation much. It broadly reinforces the latest status quo which was a product of fait accompli - 4. The exhaustive judgment does not contain any condemnation of vandalism leading to demolition. The critical legal question is: "Could it reach the conclusion it did reach had the disputed structure not been demolished? Could it have given the Garbhagriha to Ram Lala if the mosque was standing in 2010?”
It is evident that the fait accompli created by the forcible demolition of the disputed structure has changed even the legal framework of the dispute.
In this connection, the observations of TS Andhyarujina, former Solicitor General of India (The Hindu dated 5 October 2010) are very pertinent:
“ …..These judgments, therefore, legalize and legitimize the 1992 demolition, as the decree of the court proceeds on the basis that there is no Masjid on the disputed site today. It is an elementary rule of justice in courts that when a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage, (as the demolition in 1992 did in favour of the Hindu plaintiffs), the Court would first order the restitution of the pre-existing state of affairs.
The test of the soundness of the court’s verdict is this: assuming the correctness of the High Court’s findings that the area beneath the central dome of the mosque was birthplace of Lord Ram or that the Masjid was built over the ruins of a temple in 1528, if the Masjid had not been demolished and had remained on the site, would the court have ordered a division and partitioning of the disputed site in the manner it has directed? This could have been done only by the Masjid of 500 years being brought down to create a vacant site-which clearly would have been an impossible direction.”
The appeals against the judgment of Allahabad High Court have been heard by the Supreme Court in marathon sittings and judgment reserved. The people of the country are eagerly and anxiously waiting for a just and final verdict in this vexed and highly emotive issue.
November 09, 2019 at 10:25AM
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