Revisiting the Ram Janambhumi-Babri Masjid Judgement

Pallab Bhattacharyya

(Pallab Bhattacharyya is a former director-general of police, Special Branch and erstwhile Chairman, APSC. Views expressed by him is personal. He can be reached at pallab1959@hotmail.com)

Politics in India has taken a distinct religious flavour as can be seen from a series of incidents taking place in different parts of India. On May 12, 2022, the Varanasi court, in a landmark judgment on the Gyanvapi mosque, refused to remove advocate commissioner Ajay Kumar Mishra, who was appointed for the survey of the mosque, and ordered a survey of the basement of the Gyanvapi mosque before May 17. In UP attempts to rake up temple politics have focused on Hindu right wing groups' long-standing demand for the Shahi Idgah mosque in Mathura to be handed over to Hindu groups because of the claim that it is built on the site of the birthplace of the Hindu deity, Lord Krishna. Recently the Saket District Court reserved the order on a suit on behalf of Jain deity Tirthankar Lord Rishabh Dev, claiming that 27 temples were partly demolished by Qutubuddin Aibak, and Quwwat-ul-Islam Mosque was raised inside the complex by reusing the material.

It is a popular belief that the Gyanvapi Mosque was built in 1669 by the Mughal ruler Aurangzeb by demolishing the ancient Vishweshwar temple. It is worth mentioning that in Saqib Khan's book 'Yasir Alamgiri', it is also mentioned that Aurangzeb had demolished the temple in 1669 by ordering Governor Abul Hassan.

The case of Gyanvapi mosque has been in court since 1991, when three persons, including Pandit Somnath Vyas, a descendant of the priests of the Kashi Vishwanath temple, filed a suit in the court of the civil judge of Varanasi claiming that Aurangzeb had demolished the temple of Lord Vishweshwar and built a mosque on it so that the land should be returned to them. On August 18, 2021, in the same court in Varanasi, five women had filed a petition demanding to worship in the temple of Mother Makeup Gauri, accepting which the court constituted a commission to know the present status of the Makeup Gauri Temple.

At the same time, the Muslim side says that no decision can be given on the dispute under the Religious Places Act of 1991.Section 3 states as follows:

"Bar of conversion of places of worship - No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof." Section 4 (2) of the Act states that all litigations, appeals or other proceedings relating to changing the nature of the place of worship (which were pending till August 15, 1947) shall cease after the enactment of this Act and no fresh action can be taken on such cases.However, if the change in the nature of the place of worship has occurred after the cut-off date of August 15, 1947 (after the act came into force), legal action can be initiated in that case. The disputed site of Ayodhya (Ram Janmabhoomi-Babri Masjid) was exempted from the Act.

All these claims and counter-claims from various groups mentioned in the above cases have polarized the scenario and it is in this context that the Judgement passed by the 5-Judge Bench of Babri-Masjid-Ram Janambhumi Case, (in Court jargon, Civil Appeal Nos 10866-10867 of 2010) delivered on 9th November, 2019 by the then CJI Ranjan Gogoi, Justice SA Bobde, Justice Dr Dhananjaya Y Chandrachud, Justice Ashok Bhusan and Justice S Abdul Nazeer, assumes utmost significance.

This historic judgement was criticized by many personalities. One such view says that to put it plainly: the Supreme Court chose to bow down before the forces of majoritarian thuggery and extremism. Logic and law were conveniently set aside by the top court to appease a certain radical section of the society. Throughout its Ayodhya judgement, the Supreme Court buttressed the importance of secularism. It said that a title dispute cannot be decided on the basis of faith. Albeit the Court tried very hard to sound legally objective and non-partisan, it eventually sided with the sentiments of the majority community.

However the following questions in respect of the controversies arising out of these religious proclamation by different groups needs deliberations among all sections of intelligentsia of the society irrespective of their religious affiliations:

1) If all these historical claims are true then how does it matter as we cannot change the course of history now? How can a historical mischief, even if perpetrated earlier, be rectified now?

2) If one is a devout Hindu and angry about the historical happenings committed several centuries earlier, there cannot be any mechanism to rectify this in the 21st Century.

3) If somebody is a devout Muslim and fearful about the happenings of the day how should he/she respond?

It must be noted that India's medieval period of around 700-800 years consisted sometimes of turbulent and sometimes peaceful period where outsiders came and settled here and contributed to its culture and ecosystem, which led to the famous concept of unity in the midst of diversity.

In the Ram Janambhumi-Babri Masjid case, the 5-Judge Bench had highlighted the following principles which will make the above disputes irrelevant if The Religious Places Act, 1991 is not repealed. These principles are:

a) The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasizes human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths constitute a fundamental precept of fraternity.

b) The Places of Worship Act imposes a non-abrogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.

c) The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution. There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.

The Ram Janambhumi-Babri Masjid Judgement, in the final analysis, is thus coming as a saviour in this troubled time and it is hoped that it will safeguard the democratic and secular character of India.