Hindu Vivek Kendra
A RESOURCE CENTER FOR THE PROMOTION OF HINDUTVA
   
CHAPTER - IX
THE ROLE OF LAW AND JUDICIARY IN THE AYODHYA CASE

Hindu case under the Islamic and, later, the British Rule 

1.1. Any study of the Ayodhya movement would be incomplete without a scrutiny of the role of the law and the judiciary. As discussed in Chapter II, the Hindus resorted to judicial means to repossess the Ramjanmabhoomi during the British period when a semblance of rule of law established by the British had become part of the governance. Till the British came in, in areas under Muslim rule, what kind of law governed those who were not Muslims is explained by Roland Knyvet Wilson in Anglo Mohammedan Law (3 Ed. 1908). The author says:

"The rules laid down for the treatment of infidel subjects (Zimmis) could not be applied in its entirety. In strictness, the Hindus being idolators and polytheists should not have been admitted to the status of Zimmis at all; but should have been either converted or exterminated; supposing this idea was to be abandoned as it was at a very early period, they should at least have been burdened with a special capitation tax (Jezya) and should have been restricted to the humblest edifices and the most unostentatious form of public worship' (pp. 26-27).

This was the law that was applicable to the Hindus under Islamic jurisprudence. So there was no question of any judicial inquiry into the grievances of Hindus under Muslim rule. The legal inquest into Ayodhya became possible only after the British Government took roots. Even the British had legislated, under the Regulations of 1772, that where a legal dispute arose between a Hindu and a Muslim, and the Hindu is the plaintiff and the Muslim is the defendant, then the law applicable will be the law of the defendant, namely, Islamic law. With this jurisprudence, there was hardly any possibility of the Hindus fighting for their legal rights even under the British.
 

The Hindus win the case, but lose the Janmasthan in 1886

1.2. The first legal case for repossession of Ramjanmabhoomi was filed by Mahant Raghubardas in 1885 and the judgement of the Faizabad District Court was delivered in March, 1886. An English Judge Col. F.E.A. Chamier acknowledged:

"It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindus, but, as dust event occurred 356 yearn ago, it is too late now to remedy the grievance. All that can be done is to maintain the party in status quo. In such a case as the present one any innovation may cause more harm and derangement of order than any benefit." 

Thus the Hindus won the case, but could not get the Janmasthan. Purely in legal terms, this judgement was correct. Even now, what this English Judge said is the intellectual justification offered by the Leftist and Anglicised sections in India, namely, that it happened over 400 years ago. But can that answer the faith and sensibilities of the Hindus? If it cannot, has the law to change or the faith? Could this law, or judgement have been applied to Somnath? Purely in the legal sense, could the Somnath Temple have been built? But it was built. How? Because the responsible national leaders decided that that was the correct way.
 

Judicial proceedings restart in 1950 after the Hindus physically take structure

1.3. So the law could not help the Hindus for more than 60 years, from 1885 to 1949. But when they physically occupied the structure after the idols of Sri Rama appeared on 22-23 December, 1949, the same law okayed it, and the same law enforcing courts - the District Court in 1950 and later in 1955 the High Court - granted to the Hindus the right to worship and injuncted against removing the idols. Two suits were filed by Shri Gopal Singh Visharad and Paramhans Ramachandradas (who is today heading the Temple construction committee) - one for a permanent injunction against removing the idols, and the other for performance of pooja. The court granted both.
 

The High Court directed as early as 1955 that the case he disposed of forthwith, but that case is pending even today

1.4. While granting to the Hindus the right to worship, the High Court regretted that the two cases were pending from 1950 and directed that they should be disposed of forthwith. The court said:

It is very desirable that suit of this kind is decided as soon as possible and It As regretted that it remained undecided after tour years. The delay appears to be principally due to the fact that the record of the proceedings in the trial court was summoned by this court in the year 1953 on the application of the present appellants. Had that not been done, the suit would probably by now have been decided.

... We, however, consider it extremely desirable that the suit should be disposed of at once and we accordingly direct dust the record of proceedings is to be sent back to the lower court.

However, even today, that is, 38 years after the High Court's directive for disposal of the cases forthwith and 43 years after their first institution by the Sants, they are pending even today - pending in the same state, without any progress whatsoever. Can there be any other case which can be compared to these frozen cases, frozen virtually in a state of suspended animation?
 

Most of the parties to the suit are dead

1.5. In the first suit, not only the plaintiff Gopal Singh Visharad, but, all five individuals who were defendants, are no more. Gopal Singh Visharad has been substituted by his son. Shri Rajendra Singh. Amongst those in the second suit, the Plaintiff Paramhans Ramachandradas alone is alive, but no defendant has survived.
 

The third suit, riled by the Nirmohi Akhara in 1959, is also pending although all parties to the suit are dead

1.6. The Nirmohi Akhara filed this suit for a decree to direct that the Rama Temple at Ayodhya was not interfered with by the defendants. All parties to the suit, six of them, are dead.
 

The fourth suit, and the first from Muslims, by the Sunni Waqf Board filed in 1961

1.7. This suit was filed by the Sunni Waqf Board for wresting the title and possession of the Ramjanmabhoomi and the structure from the Hindus, and for the removal of the idols from the structure. This suit was filed on 18.12.1991, barely four days before the 12 years limit of adverse possession was to expire.
 

Can any court order the removal of Ram Lala?

1.8. Apart from the fact that this suit is frivolous, even if legally tenable, can any court in India order the idols to be removed? And even if a court did, can any Government implement that order?

1.9. And yet this case is also pending today despite the fact twelve of the parties to the suit are already dead,
 

The Waqf Board suit is totally frivolous

1.10. This is the only suit by the Muslims against the Ramjanmabhoomi. If this suit goes, there is no legal dispute at all about the title and possession of the Hindus over Ramjanmabhoomi. Certain vital facts about this suit are:

a. Under Islamic law, only the Mutawalli of the Masjid is authorised to initiate legal action.

b. The Mutawalli of the Babri structure is Mir Javad Hasan, a descendant of Mir Baqi and resident of a village 10 km. away from Ayodhya where Mir Baqi's Mazaar is situated.

c. Mir Javad Hasan has refused to join the Waqf Board suit.

d. He is maintaining himself out of 40 acres of land given by the British for military and political service rendered to them by his forefathers.

e. He has demanded the transfer of the "masjid" to his village so that he can offer prayers there, and the Janmabhoomi reverts to the Hindus.

f. His right to Mutawalliship has been recognised by the Sunni Waqf Board itself in its report dated 10th December, 1949 and Office Note dated 25th November, 1948 sent by the Waqf Board to him.

Thus Mutawalli being the only proper person to act in law for a mosque, the Sunni Waqf Board is an interloper, and cannot file a case for wresting the Ramjanmabhoomi.
 

The settled law is that adverse possession extinguishes Muslims rights

1.11. If this is the position in fact, in law too a mosque not being a juristic person, unlike a Hindu idol, there cannot be a representative litigation by the Muslims for a mosque. This was settled by the Lahore High Court in 1930 and its judgement was confirmed by the Privy Council in 1940. The Lahore High Court said:

"When a mosque is adversely possessed by non-Muslims, that is to say Hindu the Muslims lose all the right in the land and the building, Including the right of worship. The building cannot maintain the character of a mosque and no duty is cast upon the persons in possession thereof to maintain its original character or to maintain it even as a building. All the rights of the Muslims being thus extinguished, including their right to pray, the persons in possession commit no wrong, much less a continuing wrong, by not permitting, or refusing the right of the Muslims to pray therein. A suit instituted by a Muslim as a beneficiary for the exercise of his right to pray at a mosque is a suit for the enforcement of an individual right and not a collective right of the Muslims."

The limitation period for the relief claimed in the Waqf Board suit is 6 years, while it was filed 11 years and 360 days late. Thus the property has come into the hands of the Hindus by adverse possession. When the Lahore case was appealed against, the Privy Councel upheld the Lahore judgement. If this ruling is applied, the Sunni Waqf Board case has no legs to stand on.
 

Civil judge Faizabad holds that the disputed structure is not Waqf property at all 

1.12. The City Civil Judge of the Faizabad court has given a preliminary finding that the disputed structure was not a Waqf property as no proper notification has been made under the law declaring it to be a Waqf property. This was on April 21, 1966.
 

Waqf Board suit suffers from insurmountable difficulties

1.13. Thus the only case of the Muslim, the Sunni Waqf Board suit, is untenable in law for 3 insurmountable difficulties:

a. Only a Mutawalli, and not a Waqf Board can enforce the legal right on a mosque; the Mutawalli of the Babri structure wants it to be shifted.

b. The Waqf Board suit is time-barred.

c. The Babri structure is not a notified Waqf property at all.

This is the only case against the Ramajanmasthan. And it is clearly frivolous, pending almost where it stood when filed 34 years ago. Yet this is what the government, the Congress and ex-Congress parties and Marxists describe as property subject to judicial proceedings, and ask the Hindus to await the judicial verdict.
 

Fresh suit by Hindus on 1st July 1989

1.14. A fresh suit was filed in the name of Lord Rama himself by Shri Deoki Nandan Agarwala for declaration of title and possession in favour of the deity.
 

On 10th July 1989, all cases transferred to High Court

1.15. All five cases - the two filed in 1950, one in 1959, the Waqf Board suit in 1961, and, the new case in 1989 - were withdrawn by the High Court to itself, on an application made by the UP Government in the year 1987.
 

Special Bench of 3 Judges constituted in 1989 

1.16. The UP Government also asked for a Special Bench of three judges to be constituted to hear all Ramjanmabhoomi cases, and the application was granted.
 

Yet the cases are where they were, 34 years or 43 years ago 

1.17. All cases have been consolidated, a single Special Bench has been constituted, and yet the cases do not progress; they stay where they are.
 

The case for opening of the locks - a contrast 

1.18. Compare it with the lightning speed with which the case filed by an unknown advocate was heard and disposed off. It is worth recalling the event.

* First, an unknown advocate (Umesh Chand Pande) filed an application on 21st January, 1986, within two days after the Sants' ultimatum in the Munsif court at' Faizabad;

* Second, on 28th January, 1986, the Munsif refused to pass any orders;

* Third, an appeal was filed forthwith, in the Court of District Judge, Faizabad;

* Fourth, on 1st February, 1986 i.e. within three days of the Munsif Court order, the District Court passed an order directing the Government of Uttar Pradesh to unlock the gate, and further directed that they shall hot impose any restriction or hurdle in the darshan or pooja by the Hindu community;

* Fifth, within hours of passing of the above order, the Temple was unlocked and even the Doordarshan cameramen were present to cover the occasion which was widely telecast all over India.

1.19. How did this case move at this speed? How did the Government acquiesce in this case? How did the Faizabad District court allow the appeal ordering the opening of locks in a matter of two days when the Hindus had been pleading for nearly 37 years? How did the Doordarshan cameras click the opening of the locks within an hour of the court orders? All these questions have only one answer - when the, Government is not against, such things can, and do, happen. Even the courts respond. So, could it be said that the law or the courts are solely responsible for Ramjanmabhoomi cases being where they are, or is the that government which wants the cases to remain frozen?
 

The Special Bench of the High Court endorses the view of the Sants, the BJP and the VHP

1.20. The Special Bench which was constituted to go into all Ramjanmabhoomi cases, said on 7th November, 1989, at the time of the Shilanyas:

"It is doubtful that some of the questions involved in this suit are soluble by judicial process.

Thus even the judiciary held the same view as the BJP and the VHP, namely, that the Ramjanmabhoomi issue cannot be subject to judicial determination. However, this observation not withstanding, the judiciary continued to play an active role.
 

The High Court ignores what the Supreme Court observed on 12th January 1990

1.21. On 12th January, 1990, on an application by Paramahans Ramchandradas, the Supreme Court observed:

"If the defendants press the contention regarding maintainability grounded upon limitation to be raised as a preliminary issue, the High Court which is trying the case will do well to entertain the request."

Armed with this order, the Hindu defendants in the Waqf Board suit asked for preliminary determination of the limitation issue. The High Court, virtually defying the Supreme Court by its order of 22nd August, 1990, refused to decide any issue as preliminary issue. This the High Court did even without hearing the argument of the defendants on merit.
 

Paramhans Ramchandradas applies for withdrawal of his case

1.22. The very next day, 23rd August, 1990. Paramhans Ramchandradas personally applied for the withdrawal of his suit filed in 1950, saying that "he had lost all hope of any decision on his suit filed 40 years ago, even by the Special Bench of the High Court". He also orally told the court that he was withdrawing the litigation completely, and was leaving the matter entirely in the hands of Bhagwan Sri Rama for preserving and enforcing the right of whose worship he had instituted the suit when he was 40 years of age. He was now 80 years old, and saw no hope of any end to the litigation in the court. There can be no greater indictment of the judicial system, especially in the manner it has dealt with the Ayodhya issue.
 

The limitation as preliminary issue, pending before the Supreme Court since 1990 

1.23. The refusal of the High Court to hear the limitation as preliminary issue is now the subject of a Special Leave Petition pending before the Supreme Court from September 1990 and it is pending even today.
 

The Kalyan Singh Government sees no judicial resolution of the case

1.24. This was the position in the year 1950, in 1959, in 1961, and in 1990. The same was the position in June 1991 when the BJP Government assumed office in UP. By then it was evident that as the Special Bench of the High Court (before which all the cases were pending) had observed that some of the issues were doubtful of judicial solution, there could be no judicial decision on these cases.
 

The UP Government follows a different strategy

1.25. The Kalyan Singh Government therefore devised a construction plan delinked from the disputed structure, and acquired 2.77 acres of land (including 2.04 acres from the Ramjanmabhoomi Nyas) for Temple construction. This was in October 1991.

Writ Petitions were promptly filed in the High Court and in the Supreme Court, challenging the acquisition. The High Court, the same Special Bench, by an interim order on 25th October, 1991, upheld the acquisition, but granted an interim injunction against permanent construction and alienation.
 

The Supreme Court expected Final hearing in December 1991

1.26. On 15th November, 1991 the Supreme Court transferred its Writ Petitions, to the High Court, stating that the High Court was taking up the case for final disposal in December, 1991.
 

But the case was pending even in July 1992 

1.27. This case which was to be taken up for final hearing in December l991, kept on being heard from month to month, and was pending even in July 1992 when the Kar Seva took place.
 

The Supreme Court requests the High Court to expedite the case

1.28. When the Kar Seva was on, the Supreme Court said on 23rd July, 1992 that if the UP Government could stop the Kar Seva the Supreme Court could transfer the acquisition cases to itself and decide them in a consolidated manner. But finally, the Supreme Court did not do so because the case before the High Court was far advanced. The Supreme Court, however, stressed that the High Court should expedite the hearing and disposal.
 

The High Court concludes the hearing but reserves the judgement

1.29. The final hearing before the High Court concluded on 4th November 1992 and the High Court reserved the judgement. The Kar Seva had been set for December 6, 1992. All that the UP Government and the organisers of the Temple movement wanted was the judgement of the High Court, no matter whether it was for or against, because even if it went against, the Kar Seva could go on, on the land that would revert to VHP.
 

The Supreme Court again requests the High Court to expedite the judgement

1.30. The High Court judgement was badly needed before 6th -December, 1992. The UP Government persuaded the Supreme Court to pass an order on 28th November, 1992 requesting the High Court to expedite the judgement, which the Supreme Court did. Yet the High Court did not deliver the judgement. The UP Government pleaded that the High Court might deliver only the operative pan of their judgement. But the plea was rejected.
 

The judgement expected in December, 1991, then in July 1992, and Finally in November 1992, comes after December 6, 1992

1.31. Finally, the High Court delivered the judgement only on 11th December, 1992, five days after the crucial date - after it was all over.
 

The effect of judicial orders

1.32. Thus, the judicial proceedings pending from 1950 responded only to prevent the construction whenever the courts were approached - whether-in 1989, or in 1991 or in 1992. But when the UP Government or the organisers of the Temple movement wanted the courts to consider their plea for deciding a preliminary issue or to deliver an early judgement which would advance the construction, it was turned down. It is not that there could be, or was any motive - but that was the result. The net result of the court orders was to expedite the proceedings that would prevent the construction, and delay the proceedings that would help the construction.
 

The bipartite legal system and the Ayodhya issue

1.33. In the final analysis, it would appear that a bipartite legal system and principles meant for determination of private property rights cannot decide far reaching historical issues that are related to faith and politics. Only because of this inadequacy, the legal system could not decide the issue for over,30 years. It was this inability of law to settle the issue that led to the Hindus resorting to a mass movement. First the Rajiv Gandhi Government in 1989, later the Narasimha Rao Government in 1991 and 1992, began using the courts as a weapon and as a shield, a process in which by the application of the bipartite principles of jurisprudence, the courts could not help becoming parties in a highly emotive and complex religio-political matter. Such involvement in areas where the orders of the court conflict with mass mandate like the one, the UP Government had to build the Temple, only eroded the efficacy of the judiciary and its orders as the Narasimha Rao Government began to utilise the court to deal with what was essentially a political problem.

Was not the Allahabad High Court farsighted when it said in 1989 that "some questions in the case are doubtful of judicial resolution"?


 
Home
Back to Index
Top