Published: November 4, 2010 - 15:52 Updated: November 4, 2010 - 15:58

Faith as basis of the Ayodhya judgement is perfectly justified. The government should be forced to bring an amendment to bar the construction of any structure other than those connected with the Ram temple at Ayodhya
Subramanian Swamy Chennai 

 True and devout Hindus believe that Bhagwan Sri Rama was born in Ayodhya, the then capital of a flourishing kingdom of the Suryavamsa dynasty. Rama is venerated as Maryada Purushottam, and worshipped by Hindus. As an avatar of Vishnu, while it was first propagated by Tamil saints known as Nayanmars and Alwars, who composed many hymns and songs dedicated to his divinity, the North later came to accept Rama as an epitome of divinity, especially, thanks to the saint, Tulsidas. Sri Rama was also the first truly national king of India, supra region, varna or jati. That is why poet Iqbal called him 'Imam-e-Hind'.

The exact spot of the palace where Rama was born has been and remains firmly identified in the Hindu mind and is held as sacred. This is the very area where stood, from 1528 till December 6, 1992, a structure that came to be known as Babri Masjid, put up in 1528 by Babar's commander Mir Baqi. 

In fact, Baqi was a Shia Muslim, and hence, he intended it to be a place for Shias to read namaz. Today, interestingly, the Shia clerics have made it clear to Hindu organisations that they would agree to have the site restored as a Ramjanmabhoomi. 

It is the Sunni Wakf Board -which entered the legal dispute as late as 1961 -that has been litigating in the court claiming the title to the land on which the structure once stood. 

This claim has now been rejected by all three judges of the said Ayodhya Dispute Bench. Issue No. 20 in Suit No. 4 (filed by the Sunni Wakf Board against Gopal Singh Visharad) was framed as follows:

Whether the Wakf in question cannot be a Sunni Wakf as the building was constructed by Mir Baqi who was a Shia Muslim.

Whether the Mutwalli of the mosque not having joined in the suit, the said suit is not maintainable for relief of possession of the disputed structure (a "structure" since it cannot be strictly called a mosque by Sunni edicts-because it did not have the mandatory minarets and wazu (water pool)). 

All three judges held that the Sunni Waqf Board has no locus standi and that their suit for title and possession is not maintainable and thus stood dismissed. As far as the successor, Shia Mutwalli, is concerned, he lives in Ayodhya and wants to build a masjid across the Saryu river, thus vacating the 67 acres of the Ramjanmabhoomi. The Sunni Muslims are sheer interlopers in this dispute.  

That a Ram temple existed and/or that there is a sacred spot known as Ramjanmabhoomi, is attested by many sources. 

In Skanda Purana (Chapter X, Vaishnav Khand) the site is vividly described. Valmiki's Ramayana also describes it beautifully. Less than two decades before Mir Baqi carried out the horrible demolition of the Ram temple, Guru Nanak had visited the Ramjanmabhoomi and had darshan of Ram Lalla in the mandir at the spot. There are many commentaries on this visit which are a part of the Sikh scriptures. Guru Nanak himself records in 1521 the barbarity of Babar's invasions (in Guru Granth Sahib at p. 418). 

In Akbar's time, Abul Fazal wrote the Ain-i-Akbari in which he describes Ayodhya's fame as the place of "Ram Chandra's residence who in Treta age combined spiritual supremacy and Kingship" (Translated by Col HS Jarrett, published in Kolkata in 1891).

In Chapter X of the Report of the Archeological Survey of India, NW, and Oudh (1889) it is mentioned (p. 67) that Babri Mosque "was built in AD 1528 by Mir Khan on the very spot where the old temple of Janmasthan of Ram Chandra was standing". 

Hindus, throughout the foreign occupation of India, have deeply held as sacred the exact spot where the Babri Masjid once stood, as 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 on the chabutra outside the mosque. His suit was dismissed on March 18, 1886. 

However, 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 English as policy never sought to disturb the social status quo in India as evidenced, for example, on the 'sati' question, the judge took the easy way out and dismissed the suit.

It is now well established by Global Penetrating Survey/ Geo Radiology Survey -directed excavations done under the Allahabad High Court monitoring and verification in 2002-03 that a large temple did exist below the place where the 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 Sunni WAKF Board does not accept these findings. It does not, however, matter if all this was indeed so or not, since under Section 295 of the Indian Penal Code (IPC) faith in sacredness of the site is prescribed as follows: "Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons, with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both."  The offence under Section 295 IPC is cognisable and non-bailable, as well as non-compoundable. 

That is, an offence under criminal law is committed in such cases if a body of persons holds something as sacred. It does not matter if the majority does or does not hold that opinion. Nor can a court decide what is sacred and what is not. It can recognise that which is held sacred and no more. Only a body of persons can identify what is sacred. This was my argument in the Supreme Court while successfully blocking the destruction of the Rama Setu, held sacred by a billion Hindus. The Supreme Court accepted this argument. 

This is the position in international law which was argued skillfully by senior counsel G Rajagopalan on behalf the Hindus before the Lucknow bench. The judges took note of his arguments and referred to it in their judgements. 

In particular, how do we know that Jesus Christ was born at a particular spot in Bethlehem in Israel? Because four centuries after Christ's resurrection, the mother of King Constantine of the Roman Empire dreamt that Christ was born there. This is accepted as faith by all Christians today.

Similarly, Al Aqsa and the Dome of the Rock in Israel is held sacred by Muslims because some Imams dreamt that Prophet Mohammed came on a horse there and ascended to heaven. This is now universal Islamic faith today, and thus Muslims demand from the Israelis that Al Aqsa be handed over to them on that basis.

Thus, the fundamental question before us is this: Can a temple and a masjid be considered at par as far as sacredness is concerned? 

Relying on two important court judgements that hold the field today, the answer is, no! A masjid is not an essential part of Islam, according to a majority judgement of a Constitution Bench of India's Supreme Court. 

In the famous Ismail Farooqui vs Union of India case (reported in (1994) 6 SCC 376), the Supreme Court had 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 rebutted this contention. The bench stated:  "The correct position may be summarised thus: under Mohammed 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 in 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 depriving the Muslims of the Babri Masjid is within law, 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 Islam's Prophet Mohammed used to pray was demolished for a road to pass through! 

But then, what of a temple? Is it in the same category as the mosque in our jurisprudence? When I was Union law and justice minister, this question of the status of a temple -even if in ruins or without worship -had come up before me in November 1990 in a case of a smuggled out bronze Nataraja statue which was up for sale in London. 

The government of India, when Rajiv Gandhi was prime minister, 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, Ahmed Hussein, reached the farmer and paid a small sum and smuggled it out to London, where in 1982 they sold it to the Bumper Development Corporation Private Limited. In turn, the Corporation sent it to the British Museum for appraisal and possible purchase. By then the government of India was in the process and asked the UK government to take action. 

The Nataraja idol was seized by the London Metropolitan Police; the Corporation sued the police in court for recovery but lost the case. An appeal was filed in the Queen's Bench (at the level of our high court) which was dismissed on April 17, 1989. So the Bumper Corporation went to the House of Lords (at the level of our Supreme Court). On February 13, 1991, the landmark judgement came dismissing Bumper Corporation's final appeal (see (1991) 4 All ER 638).

The UK apex court upheld the Indian government's position that because of the prana prathista puja a temple is owned by the deity, in this case Lord Shiva, and any Hindu can litigate on behalf of the deity as a de facto trustee. 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, even if a  temple is in ruins as the ASI had found, or destroyed as Ram temple was, any Hindu can sue on behalf of Lord Rama in court for recovery! No such ruling exists for a mosque for the simple reason that a mosque is just a facilitation centre for reading namaz, and has no essentiality for the religion of Islam. It can be demolished and/or shifted as any building can and are being so demolished in Arab countries and Pakistan. 

Thus, the Ram temple on Ramjanmabhoomi has a superior claim to the site than any mosque. This is the fundamental truth in the Ayodhya dispute. This truth will apply to Kashi Vishvanath and Brindavan temple sites as well.

The only compromise we Hindus can accept is that Muslims agree to shift the building of a new masjid to some other site beyond the Saryu river. It is important to note that as of now there are eight mosques in Ayodhya which the ASI has taken over since these had no one coming to read namaz. Hence, what use will another mosque be? If, however, the Muslim hardline organisations want to re-build the Babri Masjid in the Ramjanmabhoomi area, then the Hindus will launch a struggle.  

Hence, what should be the patriots' response to the judgment of the Lucknow Bench of the Allahabad High Court allotting one-third of the Ramjanmabhoomi to the Sunni Wakf Board to build a mosque in the area near the Ram Lalla temple? 
The response should be a resounding, no! 

A temple cannot be equated to a mosque. Nor can, we, Hindus, by the backdoor, allow the aggression and atrocity of demolishing temples be rewarded in any manner. Therefore, as with the Shah Bano case precedent, the government should be forced by agitation if necessary to bring an amendment to the Acquisition of Certain Areas of Ayodhya Act of 1993 to bar constructing any structure other than those connected with a temple for Sri Rama. 

That will be the fit atonement of the entire people of our nation for tacitly tolerating for so long the demolition of the Ram temple on the orders of Babar of Afghanistan. Indeed, Babri, after whom the mosque is incidentally named, was a nine-year-old boy in Kabul who was a "special" intimate of Babar. 

If such an amendment is not brought forth, Hindus should wage a fierce, democratic struggle for the next three plus years to force the government to do so or wield a solid Hindu vote so that in the next general election a Hindu Front supported by the Hindu Dharmacharyas, VHP and RSS can obtain an absolute majority in the Lok Sabha.   

The writer is a former Union law minister

Faith as basis of the Ayodhya judgement is perfectly justified. The government should be forced to bring an amendment to bar the construction of any structure other than those connected with the Ram temple at Ayodhya
Subramanian Swamy Chennai

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