Fundamental issue in Ayodhya case

Rear View of the Babri Mosque.
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Dr Subramanian Swamy in THE HINDU

The Babri Masjid was unauthorisedly demolished and the culprits must be brought to book under the rule of law. But in law, a temple and a mosque cannot be considered on a par as far as sacredness is concerned. This is the fundamental truth constantly being evaded on the Ayodhya issue.

T.R. Andhyarujina is a highly respected and accomplished lawyer who is very skilled in court craft. His major point in his Op-Ed [“A Verdict that legitimises the Masjid demolition,” The Hindu, Oct.5, 2010] is that the 8,700-plus pages judgment of the Lucknow Bench of the Allahabad High Court on the Ayodhya dispute implicitly condones the 1992 demolition of the Babri Mosque structure because the Court did not take judicial notice and draw adverse inference [in fact no reference] against the directly or de facto affiliated parties (in the litigation before the Bench) in that destruction.

I do not dismiss this point because the structure was indeed unauthorisedly demolished and therefore the culprits and the planners of this demolition, whoever they are, have to be brought to book to uphold the rule of law. For this purpose, there is an ongoing criminal case in a special CBI-designated Sessions Court.

In this context, the question is whether every court will have to take judicial notice of this alleged illegal violent event even after the Supreme Court of India has taken such notice. Mr. Andhyarujina himself quotes the Supreme Court judgment [reported in (1994) 6SCC376] in which the court, while absolving the Hindus as a community of the blame, nevertheless held that “Hindus must bear the Cross for it.” This was an extraordinary judicial observation and has profound implications for all communities whenever religious premises are destroyed.

The fact nevertheless remains that throughout the last several centuries, Hindus have deeply held as sacred as Ram’s birthplace that exact spot where the Babri Masjid once stood. This is recorded in many official and judicial proceedings.

In 1885, for example, Mahant Raghubar Das, in a Suit No. 61/280 of 1885 filed in the Court of the Faizabad Sub Judge against the Secretary of State for India (who was based in London), prayed for permission to build a temple inside the perimeter of the mosque. His suit was dismissed on March 18, 1886, but in his Order the Sub-Judge, an Englishman, stated: “It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindus. But as the event occurred 358 years ago, it is too late now to remedy the grievance.” Since the British as policy never sought to disturb the communal and social status quo in India as evidenced, for example, on the ‘Sati question,’ the judge took the easy way out and dismissed the suit.

Temple did exist

It is now well established by GPRS-directed excavations, done under the Allahabad High Court monitoring and verification in 2002-03, that a large temple did exist below where that Babri Masjid structure once stood. Inscriptions found during excavations describe it as a temple of Vishnu Hari who had killed the demon king Dasanan [Ravana]. The Archaeological Survey of India (ASI) confirmed these findings on investigations that were directed by the High Court.

A fundamental question arises: Can a temple and a masjid be considered on a par as far as sacredness is concerned? Relying on two important apex judgments that hold the field today, the answer is: No. A masjid is not an essential part of Islam religion, according to a majority judgment of a Constitution Bench of India’s Supreme Court (op.cit. 1994), whereas according to the House of Lords, U.K. (1991), the temple is always a temple even if in disuse or ruins.

In the famous Ismail Farooqui vs Union of India case [reported in (1994) 6 SCC 376], the Supreme Court of India observed: “It has been contended that a mosque enjoys a particular position in Muslim law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah … and any person professing Islamic faith can offer prayer in such a mosque, and even if the structure is demolished, the place remains the same where namaz can be offered “ [para 80].

The Constitution Bench then rejected this contention, stating: “The correct position may be summarised thus. Under Mohammedan law applicable in India, title to a mosque can be lost by adverse possession. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India”(para 82).

Thus what was wrong with the demolition of the Babri Masjid on December 6, 1992 was that it was unauthorised by law and hence a criminal offence. Otherwise any government can deprive Muslims of the Babri Masjid, which would be lawful if the government decides to do so in the interest of public order, public health and morality (Article 25 of the Constitution). This is the position in Islamic law as well since in Saudi Arabia the authorities demolish mosques to lay roads. Even the mosque where Prophet Mohammed used to pray was demolished.

Nataraja statue case

A temple however is not in the same category as a mosque in law. When I was Union Law and Justice Minister, this question of the status of a temple – even if in ruins or without worship – came up before me in November 1990 in a case of a smuggled-out bronze Nataraja statue that was up for sale in London. The Government of India under Prime Minister Rajiv Gandhi had decided to file a case in the London trial court in 1986 for recovery. The Nataraja statue had by then been traced to a temple in ruins in Pathur, Thanjavur district. A farmer named Ramamoorthi had unearthed it in 1976 while digging mud with a spade near his hut.

When the news spread, touts of an antique dealer reached Ramamoorthi, paid a small sum, and smuggled it out to London, where in 1982 it was sold to a private company. In turn, the buyer sent it to the British Museum for appraisal and possible purchase. By then the Government of India was on to it and asked the British government to take action. The Nataraja idol was seized by the London Metropolitan Police, the company sued the police in court for recovery, but lost the case. An appeal was filed in the Queens Bench, which was dismissed on April 17, 1989. The buyer company went to the House of Lords.

On February 13, 1991, when I was Union Law Minister, the landmark judgment dismissing the buyer’s final appeal [see (1991) 4 All ER 638] was delivered. The Bench consisting of Justices Purchas, Nourse, and Leggatt concluded: “We therefore hold that the temple is acceptable as party to these proceedings and that it is as such entitled to sue for the recovery of the Nataraja” [page 648 para g]. Thus a disused temple in ruins became a party, and we as Siva bhaktas as de facto trustees thus recovered the Nataraja idol.

No such ruling anywhere in any court exists for a mosque for the simple reason that a mosque in Islam is just a facilitation centre for reading namaz, and has no essentiality for Islam as a religion.

It can therefore be demolished and/or shifted in India under the Constitution as any building can — but of course authorisedly for a public purpose such as public health, public order or morality. The Union Government is committed by virtue of its affidavit filed in the Supreme Court in 1994 to do so if it is found that a temple structure exists below the mosque site. It must hence perform now and deliver on its commitment on oath sworn in the Supreme Court.

This is the fundamental truth in the Ayodhya dispute that is being constantly evaded by those criticising the Allahabad High Court Judgment.

( The writer is a former Union Law Minister and the Convenor of the Legal and Parliamentary Cells of the Hindu Dharma Acharya Sabha.)


Will Govt now live up to its commitment?


It had promised to go by the answer to its 1993 Presidential Reference to SC on whether a temple existed below disputed structure

Now that the Allahabad High Court has delivered its judgement in the Ayodhya case and it is now an established fact that the Babri structure was built above a Hindu temple, it would be pertinent to revert to the proceedings before the Supreme Court in regard to the Presidential Reference made in January, 1993 and to the declarations and assertions made by the Union Government before the apex court on how it proposed to resolve the dispute. A five-judge Bench of the Supreme Court delivered its judgement in what is known as the Faruqui case ( Dr M Ismail Faruqui and Others vs Union of India and Others) while simultaneously disposing of the Presidential Reference that had been made in the previous year under Article 143(1) of the Constitution on October 24, 1994. In that reference the President asked the court the following question:

“Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhhoomi – Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?”. The court declined to answer this question. In the Faruqui case, the constitutional validity of Acquisition of Certain Area at Ayodhya Act, 1993 was challenged. The court upheld the Act but declared Section 4(3) of the Act, which provided for abatement of all pending suits and legal proceedings pertaining to the disputed structure, to be invalid. This meant the revival of all pending suits and legal proceedings before the Allahabad High Court. As regards the Presidential Reference, the court said it was “superfluous and unnecessary and does not require to be answered”.

The matter was heard by a five-judge Bench comprising Chief Justice MN Venkatachaliah, Justice AM Ahmadi, Justice JS Verma, Justice GN Ray and Justice SPBharucha. The majority judgement was written by Justice JS Verma on behalf of Chief Justice Venkatachaliah, himself and Justice Ray. The judgement pertained to the constitutional validity of the ordinance named ‘Acquisition of Certain Area at Ayodhya’ Ordinance on January 7, 1993 for acquisition of 67.703 acres of land in the Ram Janmabhoomi — Babri Masjid complex and the reference made by the President that very day to the Supreme Court under Article 143 of the Constitution. The ordinance was replaced by the Act. The Presidential Reference said “a dispute has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure, commonly known as the Ramjanmabhoomi-Babri Masjid) in the area in which the structure stood in village Kot Ramachandra in Ayodhya … And whereas notwithstanding the vesting of the aforesaid area in the Central Government under the said Ordinance the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India in terms of the said opinion”. Further, the reference said the question “is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court in terms of the said opinion…”

After this preamble, then President Shankar Dayal Sharma asked the court “Whether a Hindu temple or any Hindu religious structure existed” prior to the construction of the disputed structure. Those who opposed the Presidential Reference questioned the Central Government’s motive in making such a reference to the court. They said the question was “academic” and “vague” and did not serve any constitutional purpose. The Supreme Court asked the Solicitor General to clarify. The Solicitor General responded with a written statement on behalf of the Central Government on September 14, 1994. He said the Government would treat the finding of the Supreme Court on the question of fact raised in the Presidential Reference “as a verdict which is final and binding”. The Government would make efforts to resolve the controversy by a process of negotiations “in the light of the Supreme Court’s opinion and consistent with it”. The Government was confident that the opinion of the Supreme Court “will have a salutary effect on the attitudes of the communities and they will no longer take conflicting positions on the factual issue settled by the Supreme Court”.

The Solicitor General went on to say that if efforts at a negotiated settlement do not succeed, “Government is committed to enforce a solution in the light of the Supreme Court’s opinion and consistent with it. Government’s action in this regard will be even-handed in respect of both the communities. If the question referred is answered in the affirmative, namely, that a Hindu temple/structure did exist prior to the construction of the demolished structure, Government action will be in support of the wishes of the Hindu community. If, on the other hand, the question is answered in the negative, namely, that no such Hindu temple/structure existed at the relevant time, then Government action will be in support of the wishes of the Muslim community”. The Solicitor General’s statement formed a part of the record and was taken into account by the court.

The Supreme Court, however, held that the Presidential Reference was “superfluous and unnecessary” in view of its decision to uphold the validity of the Acquisition of Certain Area at Ayodhya Act, 1993, except Section 4(3). The court’s decision to strike down Section 4(3) resulted in the revival of the pending suits and legal proceedings. The court declared that the Presidential Reference cannot be treated “as an effective alternate dispute-resolution mechanism in substitution of the pending suits…”

“Muslims will voluntarily hand over …”

The White Paper published by the Central Government after the demolition of the Babri Masjid offers a clue as to why the Government posed that important question to the Supreme Court: The White Paper said: During the negotiations aimed at finding an amicable settlement, one issue that came to the fore was whether a Hindu temple had existed on the site occupied by the disputed structure and whether it was demolished on Babur’s orders for the construction of the Masjid. It was stated on behalf of the Muslim organisations, as well as by certain eminent historians, that there was no evidence in favour of either of these two assertions. It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily hand over the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and AIBMAC. This explains the purpose of the Presidential Reference and its specificity in regard to the existence or otherwise of a temple below the disputed structure.

Now that the Allahabad High Court ordered the ASI to excavate the site, accepted the ASI’s findings and concluded that there indeed was a temple below the disputed structure, the Union Government is bound by the commitment it made before the Supreme Court on September 14, 1994. It now has the answer to the question it posed via the Presidential Reference and will be morally and legally bound to live up to its commitment.


  • Now that the Allahabad High Court ordered the ASI to excavate the site
  • Accepted the ASI’s findings and concluded that there indeed was a temple below the disputed structure
  • Union Government is bound by the commitment it made before the Supreme Court on September 14, 1994
  • It now has the answer to question it posed via Presidential Reference
  • Will be morally and legally bound to live up to its commitment–To be Continued

    Coram :-

    Hon’ble Sibghat Ullah Khan ,J.

    Hon’ble Sudhir Agarwal, J.

    Hon’ble Dharam Veer Sharma, J.

    Gist of Judgements :-
    Hon’ble Sibghat Ullah Khan ,J.

    Hon’ble Sudhir Agarwal, J.

    Hon’ble Dharam Veer Sharma, J.
    Brief summary
    Issues for briefing


    Case Details
    1. Other Original Suit No. 1 of 1989 Gopal Singh Visharad (Now Dead) & Others
    Zahoor Ahmad & Others
    2. Other Original Suit No. 3 of 1989 Nirmohi Akhara & Others
    Baboo Priya Dutt Ram and Others
    3. Other Original Suit No. 4 of 1989 The Sunni Central Board of Waqfs U.P.& Others
    Gopal Singh Visharad (Now Dead) & Others.
    4. Other Original Suit No. 5 of 1989 Bhagwan Sri Ram Virajman and Others
    Rajendra Singh and Others


    Judgments Per
    Hon’ble Sibghat Ullah Khan ,J. Hon’ble Sudhir Agarwal, J. Hon’ble Dharam Veer Sharma, J.
    Consolidated Judgment in
    OOS No. 1 of 1989,
    OOS No. 3 of 1989,
    OOS No. 4 of 1989 &
    OOS No. 5 of 1989
    Consolidated Judgment in
    OOS No. 1 of 1989,
    OOS No. 3 of 1989,
    OOS No. 4 of 1989 &
    OOS No. 5 of 1989
    Vol 1 Judgment in OOS No. 1 of 1989
    – do – Vol 2 Judgment in OOS No. 3 of 1989
    – do – Vol 3 Judgment in
    OOS No. 4 of 1989
    Vol 1
    – do – Vol 4 Judgment in
    OOS No. 4 of 1989
    Vol 2
    – do – Vol 5 Judgment in
    OOS No. 4 of 1989
    Vol 3
    – do – Vol 6 Judgment in
    OOS No. 4 of 1989
    Vol 4
    – do – : Vol 7 Judgment in OOS No. 5 of 1989
    – do – Vol 8 Index of Annexure – I to III
    – do – : Vol 9 Annexure – I
    – do – Vol 10 Annexure – II
    – do – Vol 11 Annexure – III
    – do – Vol 12 Page wise Index of Annexure IV
    – do – Vol 13 Annexure IV – Page 1 to 125
    – do – Vol 14 Annexure IV – Page 126 to 128
    – do – Vol 15 Annexure IV – Page 129 to 162
    – do – Vol 16 Page wise Index of Annexure V
    – do – Vol 17 Annexure V – Page 1 to 14
    – do – Vol 18 Annexure V – Page 15 to 59
    – do – Vol 19 Annexure V – Page 60 to 117
    – do – Vol 20 Annexure V – Page 112A
    – do – Vol 21* Annexure V – Page 118 to 189
    Annexure V – Page 190 to 220
    Annexure V – Page 221 to 281


    *Vol 21 Per Hon’ble Sudhir Agarwal J. includes :
    1. Appendix 8 : General Index
    2. Appendix 9 : Citation Index
    3. Appendix 10 : Reference Book Index


    The Lucknow Bench of the Allahabad High Court on Thursday ruled by a majority verdict that the disputed land at Ayodhya would be jointly held by Hindus, Muslims and the Nirmohi Akhara.

    Holding the disputed site was the birthplace of Lord Ram, the majority on the Bench said that each party – the Hindu Mahasabha, the Sunni Waqf Board and the Nirmohi Akhara — would be entitled to one-third share of the disputed land, with Lord Ram’s idol continuing to stay at the place where he was placed.In their separate judgements on the sensitive 60-year old title dispute on Ramjanambhoomi-Babri Masjid structure, Justices S U Khan and Sudhir Agarwal said the area under the central dome of the three-domed structure where Lord Ram’s idol exists belongs to Hindus.Justices Khan and Agarwal decreed that the 2.7 acre land comprising the disputed site should be divided into three equal parts and be given to the Sunni Waqf Board, Nirmohi Akhara and the party representing ‘Ram Lala Virajman’ (Ram deity).






    Process as victor


    With the Supreme Court dismissing a petition for deferment, the Lucknow bench of the Allahabad high court is all set to pronounce its verdict on the Ayodhya title suit. This past week, the air has been thick with yearnings that the issue could somehow be returned to the slow burner or that the high court verdict could somehow be postponed for a last, hasty shot at reconciliation. The tremulousness is understandable. When an issue has so long resisted resolution — and when that issue has shaken the republic so violently — the reluctance to face it four-square cannot be conveniently dismissed as escapism. However, mature democracies do not deal in wishful thinking, and the Supreme Court, intentionally or not, has been creative in reminding this country of its institutional strength to get on with things. It applied a short pause and then, on the basis of sober deliberation, refused to be inhibited by any political or executive pressure. The process followed by the apex court could turn out to be crucial, for it has reinforced the supremacy of the law in this land.

    The law gives the petitioners in the Allahabad high court the option to appeal the verdict in the Supreme Court. One or more of them may do so after the verdict is read out in the afternoon of September 30. However, the challenge for our politics is to separate these individuals’ rights as petitioners from any mobilisation on the issue. For all the reminders of India having moved on, and of the Ram temple movement having lost its political salience, there is suspicion that the political parties are still waiting to see which way a political wind may blow after the verdict. The verdict is not on the demolition of the Babri Masjid on December 6, 1992. But the anxieties that prevail are framed by that event. This puts the onus, first of all, on the BJP of acknowledging that it is more than just another bystander. Its leaders have been strident in appealing for calm, but they have to take the logical next step. They need to deliver on the moderation of their tone and say that they will distance themselves from any rabble-rousing, even if it be by a far-flung affiliate of the Sangh Parivar. They need to make it clear that they will not mobilise by proxy.

    Nobody today knows what the verdict will be, if even there will be, in whatever limited sense these words can be used, a winner. But no matter how the verdict goes, the challenge to our democracy is to own the judgment for what it is: an iteration of the triumph of the law and its processes.