The actual disputed site on which the Babri Masjid stood was 1,480 square yards in area.
This would amount to less than many houses in Delhi and elsewhere. Clearly, no mandir of any consequence could have been built there. True, the legal dispute sprawled to the 2.77 acres taken over by the state under the Acquisition of Certain Area at Ayodhya Act, 1993. But the actual size was just 1,480 square yards.
One might legitimately argue what the controversy was about. The temple necessarily had to be built on the surrounding land already owned by the Sangh parivar, where the Ram Mandir now sprawls over a huge area, not in dispute. Nor can it be said that the inner sanctum representing Lord Ram’s birth was placed exactly where the masjid was – as vehemently argued before the Supreme Court.
Incidentally, the Archaeological Survey of India (ASI)’s report to the court stated that it could not be conclusively said that Babur destroyed the temple to build a mosque.
The history of the contestation dates back to 1857-8. It was futile to examine whether Muslims had possession before 1857. We must presume that they did.
The Hindu counter trespass in 1857-8 found an encroachment to parts of the site. In 1885, the Commissioner’s Court authoritatively held that the Muslims had title, and the Hindus had, at best, a prescriptive right to worship.
Throughout the latter period, Muslims had access to the masjid even though attempts were made in 1935-6 to damage the mosque. The Hindus had to pay for the repair which was made by Muslims. This attempt to take the masjid by force and injure it was nothing new and culminated in its destruction in 1992.
Also read: Four Decades of Milking a Deity in Ayodhya
If the Hindus continued to pray to the idol which – according to the Hindus – miraculously appeared in December 1949, it was due to court orders and could not give them title which was equally miraculously given to them in November 2019 by the final judgment of the Supreme Court. If the judgment is taken at face value, the masjid was destroyed in 1992 on Hindu land.
The verdict of the Supreme Court in 2019 was shaky. Suit no. 5 was filed in 1989 and clearly outside limitation – even if we take December 1961, when the Sunni Board filed its case claiming title, as the start of the dispute. The limitation period is 12 years.
Yet, according to the Supreme Court, the Hindu suit of 1989 was well within limitation. The Supreme Court’s justification was that by virtue of the deity not being party in the earlier suits, its interests were not being adequately protected in the earlier suits including those initiated by the Hindu parties.
But the Mahant’s case of 1959 was to defend the Hindu cause, and did not claim title and was declared outside limitation. In a terse summation on the 1989 suit, the Supreme Court declared that the “reasons which weighed with Agarwal J. (in the High Court), as summarised above, commend themselves for acceptance”.
Never was the question of limitation so sparsely disposed of. Nor can it be said that the title and possession were not with the Muslims at the time of trespass in December 1949, as advocate Zafaryab Jilani convincingly demonstrated to the court.
Thus, the Supreme Court decision was an expensive farce. The farce was exacerbated recently by the Supreme Court in not applying the Places of Worship (Special Provision) Act, 1991 to the present case involving the Gyanvapi mosque in Varanasi. In its Ayodhya judgement of November 9, 2019, the Supreme Court had said the 1991 Act
“… enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution.
The Places of Worship Act imposes a non-derogable 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, 1991 is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”
Also read: Why the Places of Worship Act Must Be Preserved
If this was what the 1991 Act said according to the Supreme Court, what happened to all this in its application in the controversies over Varanasi and now Mathura?
So many things in the Babri decisions were fudged, even though the 2019 judgement was seen as liberation. We can re-write history but not ignore its fundamentals.
The political appropriation of Lord Ram in Ayodhya is a thorn in the side of our governance. It is true that we do not follow the strict American doctrine of separation of state from religion. But India does not reject that doctrine. If we follow the doctrine of principled equality, Modi’s token visit to Muslim sites does not make the cut.
We have to realise that India is not a Hindu state fuelled by Hindutva. The Supreme Court was wholly wrong when it ruled in 1995 that Hindutva is not an appeal to religion in elections. This aggressive Hinduism is a step towards the Hinduisation of India, which is not an exercise in secularism but a political declaration.
Unfortunately, the Supreme Court has been complicit in this process, but it must otherwise also realise that it is unconstitutional to support a Hindu elected dictatorship.
The Babri case and its inelegant aftermath have witnessed a crack in our polity.
Celebrate Lord Ram by all means, but using the state to spend from its coffers in this celebration is far from appropriate, because it is dangerously divisive, as indeed was the rath yatra to claim these 1,480 square yards for which history was defiled and a tradition of healthy secularism abandoned.
Let people develop this site not through politics. Will the same hype accompany the masjid in Ayodhya when it is built?
India is the most diverse country in the world, more than many continents. It is this diversity that makes us unique. To abandon it destroys the India that is to be treasured.
Rajeev Dhavan is a senior advocate in the Supreme Court. He has represented Muslim parties in the Ram Janmabhoomi-Babri Masjid title dispute in the Supreme Court.
