The unfair Ayodhya move

Rajeev Dhavan
Senior advocate, Supreme Court

Ayodhya’s Ram temple was the mascot of the BJP’s electoral politics from the time of the rath yatras of the eighties. A White Paper on the wanton Talibanesque destruction of the Babri Masjid (1992) was presented in 1993. There has been a continuous barrage of support for the temple at all costs. The party’s latest application in the Babri case to release the appurtenant land to the Hindu owners is to appease the Sangha Parivar to encircle the disputed site. It is acting as the ‘benamidar’ of the Hindus with malice aforethought.

In the 1994 Faruqui verdict, the Supreme Court gave an interpretation to the 1993 Ayodhya Act, converting an acquisition statute into a standstill statute and making the Union Government a ‘statutory receiver’, subject to a clear decision on the title by the courts. By definition, the Union was a neutral party with no ill will or favour towards any party, apart from its constitutional obligation not to discriminate on the grounds of religion. The properties in question under this statutory receivership were the disputed site of 0.313 acre and 67.703 acres of appurtenant land, which the Union in its application mischievously calls ‘surplus land’. According to the Statement of Objects and Reasons, the reason for this extra acquisition was to create ‘suitable adjacent land for setting up a complex land which could be developed in a planned manner, wherein a Ram temple, a mosque, amenities to pilgrims, a library, museum and other facilities could be set up’. That moment has still not come. The Faruqui judgment thought that the appurtenant land would ‘not be rendered meaningless if the Muslims are found entitled to the disputed area’ and that the Manas Bhavan and Sita Ki Rasoi being ‘strategic in location’ were in a ‘unique class’ to justify acquisition. It added that if this land was not needed, it could go back to its Hindu owners. That moment, too, has not yet come.

On March 17, 2002, in the Mohd Aslam case, a three-judge Bench of the Supreme Court ordered that this land would not be handed over to the Hindus and remain neutral without puja and shilanyas. Interestingly in 2003, Attorney General Soli Sorabjee appeared for handing over this land to the Hindus, even though he appeared for the Muslims in the Faruqui case — a  complete flip-flop. On March 31, 2003, a five-judge Constitution Bench rejected the Union’s argument (this time not led by Sorabjee) that the Faruqui judgment had overreached itself and ordered status quo till the Allahabad judgment, ‘not only to maintain communal harmony, but also fulfil the objectives of the Act’. The 2010 Allahabad judgment is in first appeal before the Supreme Court, which is a continuation of the High Court case whose decision was too fractured to yield a satisfactory result. A first appeal is a rehearing on all points raised. All the main parties (Muslim and Hindu) are in appeal. On May 9, 2011, the Supreme Court, in the Mohd Siddiq case, again examined the issue and ordered ‘status quo of the site and adjacent land’.

To namdar and kamdar, we must now add benamidar. In the present application, the Union is actually siding with, and openly acting benami for the Hindu owners. When the Ram Janmabhoomi Nyas asked the Union for this land on June 6, 1996, the then government declined the request on August 14, 1996 — a view approved by the Supreme Court. Today, in this application, the Union claims a ‘duty’ to restore the land. Actually, its duty is to remain neutral. It goes further to say that which part should be released ‘in the domain of policy’ beyond ‘judicial scrutiny’ and beyond the Act of 1993. Hence, judicial hands off. By saying this, the Union is challenging a judgment accepted since 1994. When the Nyas had filed a petition in the Supreme Court seeking directions, the court had on July 21, 1997, praised the Central Government for its correct stance in refusing the Nyas’ request. This position was reiterated by the court in 2002, 2003 and 2011. Today, the Centre has no objection, in principle, to restoring the land as a matter of duty to the Hindus after 25 years, even though legal proceedings continue. The Union thinks it is ‘in the larger interest of justice’ because the Nyas approached the Union Government, which is obviously approaching the court on the Nyas’ behalf. The Union is not party to the case. Now, it is a shadow benami party.

The land is needed because no one liked the 2:1 Allahabad decision: one-third each went to the Nirmohi Akhara, the Deity and the Muslims — with the Muslim claim to be adjusted elsewhere, if necessary. Where is this elsewhere? But the Hindu parties are fighting with each other. The Nirmohis say the Deity’s claim is corrupted, and want all of it. The Deity wants all of it. The Sunni Waqf Board wants all of it. But the appurtenant land was kept in status quo, so that access would be available to the winners. But so far, there are three winners and three losers — all need access to the site. The nation needs harmony.

The Union’s application is in the campaign mode, devoid of moral or legal justification. The Hindu sants now want to lay the foundation stone on February 21. Where? On the site? This duplicity adds threat to outrage and is contempt of court.

There is still a solution: Give the site (0.333 acre) to the Muslims to rebuild their masjid. Take your 67.703 acres, leaving a generous access to the Muslims, and build the Ram temple. This intimidation began in 1857. In July 1992, Muslims destroyed a Ramjanmasthan temple, 45 metres north of the masjid. Statesmanship, not intimidation, is the answer. There is a solution.