Enjoy - My Fellow Countrymen

The following is an article published in The Telegraph.
Only the so called Bengali intellectual can relish & digest such articles without any feelings of discontent.
This is by some non descriptive Supreme Court lawyer called Rajeev Dhawan - scooped out by NDTV after the "Ayodhya verdict" - please note that the fellow never uses the word but referes as "Babri Masjid" judgement.
The best part are his recommendations - with such people around India can never fail.
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Like Caesar’s “Ides of March”, the much-awaited Babri Masjid judgment by the Lucknow bench of the Allahabad High Court has come, but not gone. It is now certain that both Muslim and Hindu litigants are going to appeal to the Supreme Court. It is no less certain that the Supreme Court will stay (stop the operation of) the judgment to prevent any further unilateral action by an aggressive sangh parivar.

Aggression by the Muslims is unlikely. After the Babri Masjid judgment, they have become a much weakened minority. They lost when Hindu idols were placed in the Babri Masjid complex on December 22-23, 1949. Insult, most unbecoming, was added to injury when the masjid was destroyed on December 6, 1992, whilst the world looked on. Then came the final blow when the Lucknow bench judgment of September 30 disempowered them both legally and morally. What will they negotiate with — except concede their claim for the greater glory of the Indian (Hindu?) nation?

The judgment was delivered by three judges: S.U. Khan, Sudhir Agarwal and Dharam Veer Sharma. It is customary in such cases to have a minority judge on the bench so that, at least, appearances are met. In the Babri Masjid Case I (1994), concerning the validity of the government takeover of the site and the surrounding Hindu land, it was the Muslim and Parsi judges who strongly dissented. Here, it was thought that the Muslim judge — Justice Khan — would dissent if faced with an unreasonable majority of Hindu judges.

Although there were a huge number of issues before the Lucknow bench, they can broadly be classified into two. The first was — who did the site belong to? If the answer to the first question was the Muslims, did the Hindus have a right to pray at the site? And would this right to pray have to be obtained from the Muslims or superimposed on Muslim ownership of the site? Thus, the central issue was really: who owned the site?

The answer to this question should have been simple. It had been answered in favour of the Muslims in 1885. Again in the 1940s, when Shia and Sunni Muslims fought over which waqf the site belonged to, it was the Sunnis who won. Now, if the Muslims did not own the site, how come the Sunnis won? There was also a precedent for this kind of situation. In the 1820s, the Shahid Ganj mosque had been taken over by Maharaja Ranjit Singh.

Matters simmered on. The Muslims lost the case in 1855. By 1940, the Privy Council was confident that the mosque site belonged to the Sikhs and not to the Muslims. The only further issue in the Babri case was whether Muslims had filed their case within 12 years of December 22-23, 1949, from when the Hindus claimed hostile possession of the site. There was no dispute that the idols were placed on the site that evening in December 1949. As it happens, the Muslims filed on December 18, 1961 — a few days before the limitation expired. So, they had not lost the site by adverse possession to the Hindus.

Why did this simple solution not appeal to the judges? Justices Sharma and Agarwal simply assumed that this site was always a pilgrimage for Hindus since time immemorial. Even recent history belies such a conclusion. Myth and conjecture cannot displace truth. Faith may move mountains but cannot eclipse facts. This was no basis for a legal Hindu claim to the site. This was simply imagined history. Curiously, Justice Khan went along with this theory but with some doubts.

His first doubt was that while the Hindus may have prayed in the area, there was nothing to suggest that it was the Babri site that was sacral. His second doubt was that although the Ram Chabutra and Sita Rasoi had been constructed, the claim that this was the exact spot of Ram Janmabhoomi came along only years after the mosque had been built. In other words, the Hindu claim was concocted as a counterfoil to the very existence of the mosque.

There is nothing to suggest that Muslims gave up their site. Justice Khan’s conclusion was that “both the parties i.e. Muslims and Hindus were using and occupying different portions of the premises in dispute… and both continued to be in joint possession of the entire premises in dispute”. Thus, both failed to prove their title, so the site belonged to both. So, they become joint owners. How Nirmohi Akhara was entitled to one of the portions of the site defies proper explanation.

On one issue, Justice Khan and his colleagues differed. This was the sangh parivar — Bharatiya Janata Party theory of Muslim aggressors wantonly destroying Hindu temples to build mosques. The theory was important to Hindu fundamentalists to support the Hindu case for historical revenge against idol-destroying Muslims. This approach assumes that present-day Muslims had to pay the price for their irreverent ancestors. This was a war cry for revenge. Justice Khan refused to countenance this claim for historic revenge. The archaeological evidence did not suggest that a real contemporary temple was destroyed by Babur. If Babur had done that, the site would be haram and unacceptable for Muslim prayer.

The Archaeological Survey of India’s view that the site was haram has been solidly questioned by distinguished archaeologists. Justice Khan accepted that there may have been a defunct temple in the site many centuries ago. But the Hindu judges gave total support to the sangh parivar revenge theory. The evil deeds of Muslim invaders had to be punished even if they did not take place.

This leaves the question of the Hindu right to prayer at this site. This right is predicated on the basis that there was a historical Lord Ram who was born on this very site in Ayodhya. There is no proof of this at all. But, lest the argument lose its real colour, let us assume that common sentiment assumes the existence of Lord Ram of Ayodhya. But the assertion that this very site was his birthplace was only a reaction to the fact that a mosque had been built there. What better way to discredit the mosque than to say that was the holiest of holy sites?

It was a communal argument invented for communal reasons. Such an argument could not be the basis of a property right in favour of the Hindus. If Hindus were in possession, what was the need for the trespass of putting the idols there on the night of December 22-23, 1949? The factual situation was that the Hindus had abandoned their right to the site and claim to a temple.

There is little to analyse in the judgment of Justice Sharma. It is entirely pro-Hindu, discloses no legal basis and upholds the Hindu claim for no better reason than that he wanted to do so. His judgment is absurdly long and does not sustain argument, but only sentiment. Justice Agarwal’s judgment also does not bear legal scrutiny and is insufficiently balanced in his treatment of hopelessly inconclusive historical material. Ultimately, the Hindu case is based on hearsay and ‘say so’.

What were the judges trying to do? A title suit was converted into a partition suit on the flimsy basis that since the property belongs to neither, let it belong to both. Alternatively, it has always belonged to the deity and those who took it from the deity must suffer for it. But the whole world belongs to the deity without forcing focus on his unproven birthplace on earth. But it seems that the judges were in a panchayati mood to find a solution which they had not been asked to find. “Share the site,” said the judges. Not even half-half; but two-thirds Hindu and one-third Muslim. This division eludes a proper foundation. The judicial solution is unworkable. Muslims will be ousted into a corner to feel even more insecure than they do in a majority-dominated Hindu India which lets fly at Muslims, Christians and other faiths with ferocious malice aforethought.

The suggestion that mosques can be destroyed physically and legal titles taken away with legal alacrity dishonours a secular rule of law on which India’s togetherness must rest. Some say let us bury the hatchet on this dispute and move on. This seems eminently wise. But no solution should be based on a decision which induces the minority to feel cheated out of its claims. This is yet another example of brow-beating Muslims into second-class citizenship in which they cannot even defend their legitimate rights in a court of law.

I believe a solution is possible. The site can be divided. First, the Muslims need to be given an apology before anything else is done. Apologies have an important place in dispute settlement. Second, the waqf board’s legal rights must be recognized. Third, they need to be persuaded that the old mosque or a new one will be built on, or in the vicinity of, the site. Fourth, a plan to build a world heritage area in which all religions can be accommodated should be chalked out and the land distributed accordingly to make this a world heritage site to be visited by all.

I have a sense, that if Lord Ram were to arbitrate this dispute, he would approve of this kind of a solution.