The Babri Demolition and the Judiciary: Ineptitude or Incompetence?

On the thirty-second anniversary of the shameful demolition of the Babri Masjid, we see that the Pandora’s box has been opened. There are several litigations by plaintiffs belonging to the majority community about alleged temples that are believed to have existed on the lands occupied by mosques and dargahs.

Sambhal and Ajmer Sharif are the latest instances. The Places of Worship (Special Provisions) Act, 1991, which put an end to all litigation concerning places of worship other than Ayodhya has been reduced to a dead letter. The oral observations of the Supreme Court in the Gyan Vapi case that the Act did not prohibit ascertainment of the character of a place of worship has created a new “curiosity” jurisdiction, which can now be readily invoked by those who want to find a temple under every mosque (Mohan Bhagwat’s caution notwithstanding).

But this is a matter which is pending in court where a petition by the Jamiat Ulama-i-Hind seeks directions from the Supreme Court for effective implementation of the Act.

The question we need to ask today is whether the demolition of December 6, 1992 could have been averted, and whether the demolition came about because of the Supreme Court’s abject failure.

In three meticulously curated volumes, the late A.G. Noorani documented the entire history of the dispute over the Babri Masjid and its eventual destruction in 1992, and the tortuous course of the civil and criminal litigations – there is a two volume set under the title, “The Babri Masjid Question, 1528-2003: ‘A Matter of National Honour’ ” (Tulika Books, 2003), and a third book titled, “Destruction of the Babri Masjid: A National Dishonour” (Tulika Books, 2014).

What is of special interest is his summary of the proceedings in the Supreme Court in the weeks and months prior to the demolition – writ petitions were pending in both the Allahabad High Court and the Supreme Court since 1991 pertaining to issues such as the acquisition of land in the area around the Babri Masjid and the proposed kar seva.

The case in the Supreme Court was by a bench of Justice M.N. Venkatachalaiah and Justice G.N. Ray. The former did most of the talking. By an order passed on the November 5, 1991, the Supreme Court had held the Government of Uttar Pradesh “fully responsible for the protection of the Ram Jamna Bhoomi – Babri Masjid structures”.

In view of frenetic activity happening at the spot, contempt petitions for violation of the court’s order of November 5 had been filed as early as in February and March 1992. But the court did not take matters to their logical conclusion. In the meantime, on July 9, kar seva for the construction of the Ram Temple had started, while the contempt petitions were pending before the Supreme Court, and this fact was brought to the court’s notice.

On July 15, the Allahabad High Court restrained the State and other parties from raising constructions on the land and directing that if there was any necessity for doing something on the land, the court’s prior permission would have to be obtained. On August 5, the Supreme Court appointed its own Registrar General and two technical experts to report inter alia on the nature, size, etc of the land and the nature of the works executed.

After considering the report of the experts, the court noted that “we have no hesitation in finding that there was massive work undertaken in violation of the court’s orders”. And yet nobody was convicted of contempt.

Prime Minister Narasimha Rao was of course a mute spectator. But the central government gave a clear picture of events on the ground in its affidavits and pleadings and asked the Court to step in to halt further activity.

Its principal law officers acted conscientiously.

In a written statement to the Court, the Solicitor General Dipankar Gupta stated: “In July the state government said that the congregation assumed such proportions that it was not found possible to stop the construction. The central government today says that stage should not be allowed to recur. Two things are required. One, that a congregation of that kind be not allowed. Two, machinery and materials of construction, it should be ensured, are not brought.”

But that day the court found it fit to grant “a last opportunity” to the state government to persuade the groups to defer the kar seva. Attorney General Milon Banerji strongly opposed the grant of any time, and said the state was only playing for time for men and material to arrive at the site.

He asked the court to do something on the same day since “one or two days may be absolutely vital”, and said that he was speaking “with the fullest sense of responsibility since reports showed that the situation was building to a boiling point.”

But believe it or not, Justice Venkatachalaiah asked the Attorney General if he had facts to show that the situation was deteriorating and he said “preparation is not an offence. Only on our fullest satisfaction before us that the state government has failed in its duty will we pass any orders. The locus penitentium is still not crossed by then. We will see when they do.” “When they do.”

Indeed they “DID”, and how they did! The court convened on December 6, 1992 after the deed was done. Justice Venkatachalaiah said “Unfortunately, we were not able to assess the magnitude of the problem. Only thing we can now do is to restore all the three domes at the earliest.”

Even the most charitable will find it difficult to say the court was naive. Ineptitude, incompetence and abdication would still be mild words to describe the court’s inaction.

Significantly, just a few days before the demolition, in another unrelated contempt case in which Justice Venkatachalaiah was on the bench, the Supreme Court had declared: “If a person committing such gross contempt of court were to get the impression that he will get off lightly it would be a most unfortunate state of affairs. Sympathy in such a case has no meaning. His action calls for deterrent punishment so that it also serves as an example to others and there is no repetition of such contempt by others.”

Soon after the demolition, in February 1993, Justice Venkatachalaiah became Chief Justice of India. The contempt petitions stayed in limbo. They were finally taken upon on the eve of Chief Justice Venkatachalaiah’s retirement by the same bench.

In an order of October 24, 1994, the bench said, quite apologetically: “It is unhappy that a leader of a political party and Chief Minister has to be convicted of an offence of contempt of court. But it has to be done to uphold the majesty of law. We convict him of the offence of contempt of court. Since the contempt raises larger issues which affect the very foundation of the secular fabric of our nation, we also sentence him to a token imprisonment of one day. We also sentence him to pay a fine of Rs. 2000”.

The secular fabric was affected, and yet, a “token “ imprisonment for one day! But the Chief Justice demitted office in a blaze of glory……

The author is a Senior Advocate of the Supreme Court.