Babri Masjid Dispute:Rule of Law and Building Confidence

The demolition of Babri masjid in Ayodhya on December 6, 1992, does not symbolise the extinction or abridgment of the right of the Muslims to freedom of worship, which they have continued to enjoy before, during and after the event even in Ayodhya. The event rather exposed the fragile state of rule of law in the country, wherein the majoritarian composition and attitudes of the police and security forces, and whose subservience to the political executive made it function as a partisan force in the service of ‘kar sevaks’. Earlier in 1990 under a direction from the then chief minister, the same PAC used excessive force against kar sevaks in the process of protecting the mosque. This illustrates the observation made by the Dharam Vira National Police Commission (1978-81) that the police in India is not organised for impartial law enforcement; it is rather a subordinate body for enforcement of the policy of the government of the day, which is generally based on cynical calculations of players of the power game. It is a great pity that the district administration perceives its role in terms of providing maximum satisfaction to the political executive even during intergroup conflict situations making it function on occasions in a partisan manner disregarding law, as did happen in Ayodhya. Because of this lack of independence of the police and the district administration from the politically motivated directions of the government, the pious resolution of the National Integration Council of the 1960s, reiterated in the prime minister’s 15-point programme for minorities (1983), that the D M and S P should be held responsible for prevention and timely control of riots can never get implemented.

The judiciary which is the only source of hope for the weak and vulnerable groups, has miserably failed to come to their rescue ever since December 1949-January 1950, when a one-sided attachment order was passed without removing the “idols of Shri Ramchandraji surreptitiously and wrongly put inside the (Babri masjid)” as reported by constable Mata Prasad and testified by the deputy commissioner of Faizabad, J N Ugra, in the written statement filed in the court on April 24, 1950 on behalf of the state of Uttar Pradesh. Muslim worship however came to a stop, and their dispossession was legally sanctified under the plea of apprehension of breach of peace under Section 145 of the Cr P C and Hindu parties were allowed limited right of worship under a subjectively defined status quo. On this judicial activism the BJP’s white paper on Ayodhya¹ makes the following observation: “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 December 22-23, 1949, the same law okayed it, and the same law enforcing court – 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.”

The following critique of the Supreme Court judgment in the Ayodhya case in 1994 by Soli J Sorabjee also needs attention. Referring to the legal sanction given in the majority judgment to the post-demolition makeshift temple with limited rights, on the ground that (for whatever reason) the worship in the mosque had come to a stop since December 1949, Sorabjee notes with distress that, “The majority judgment overlooks that the reason why the worship in the mosque had come to a standstill was the surreptitious entry into the mosque and placing of idols there in a clandestine manner. Indeed that was the unequivocal admission of the state of UP in its written statement solemnly affirmed in the suit”. Sorabjee, the present attorney-general, concludes thus: “The distressing part is that the majority judgment countenances a situation which was the outcome of an act of national shame. The minority community is understandably disappointed with the majority judgment.”²

Regarding the court order for opening the locks of the gate in 1986, the BJP’s white paper on Ayodhya notes with satisfaction that “within three days of the munsif court order, the district court passed an order directing the government of Uttar Pardesh to unlock the gate...” and that “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.” The white paper raises the question “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.”³

The impression that the course of law in Ayodhya in 1986 was not an independent act of the judiciary based on merits of the case gets further strengthened by Swaroopananda Saraswati, Shankaracharya of Dwarka and Jyotishpeeth, claiming during Kumbh mela that it was at his behest that prime minister Rajiv Gandhi got the lock opened for political considerations.⁴

The statements which are based on the perceived complicity of the judiciary with the executive and its acting under pressure, have not so far attracted the penal provisions under the law of the contempt of court. This perception of the role of the judiciary has contributed to the climate of impunity to the extent that VHP leaders have proclaimed their intention of enforcing their majoritarian will by force, disregarding the law, and have decided to go ahead with temple construction according to a schedule prepared by the ‘dharm sansad’ (religious parliament) held during Mahakumbh in Allahabad in January 2001. The forcible entry of VHP leaders into the prohibited area in Ayodhya on October 17, 2001 marks the beginning of the schedule which is planned to reach a climax on March 12, 2001. The parivar feels confident that as nothing happened when the structure was demolished with the active connivance of the executive, nothing will happen again, if the Ram temple is built. They have been reassured in this regard by no less a person than justice (retd) Devki Nanda Agarwal, a VHP stalwart.⁵

The incident of forcible entry of VHP leaders into the prohibited area in Ayodhya on October 17, this year also violated the law, in spite of the firm resolve of the NDA government as expressed by the prime minister in his Musings from Kumarakum on January 1, 2001 when he urged “not to remain silent spectators or adopt delaying tactics but to uphold the rule of law, should any organisation attempt to disturb the status quo.” This statement cannot be taken as an isolated case of mere lapse of the security personnel on duty, it rather neatly falls into the pattern political blessing, official connivance and police partisanship and impunity seen from 1949 to 1992.

The prime minister who might well be feeling let down, as well as all the other players of the political game who are making an issue of the incident of October 17, should realise that irrespective of pious intentions, the institutional machinery for impartial, effective and humane law enforcement for prevention and speedy control of any inter-community violent conflicts simply does not obtain in the country. The fragility and malfunctioning of institutions of rule of law in India, has led to a denial of equal protection of the laws to all poor citizens and weak and vulnerable groups. It has been, however, most blatantly denied to Muslims especially in Ayodhya and related cases from 1949 till date including during major riots in 1980s and 1990s that have occurred since the Meenakshipuram conversions, which gave impetus to the Vishwa Hindu Parishad and other wings of the Sangh parivar to mobilise Hindu solidarity, towards all of which Indira Gandhi lent a helping hand. In his deposition before Liberahan Commission L K Advani has admitted that their late entry in the Ram temple campaign owed itself to their realisation of its potential for mobilisation of Hindu nationalism, which was lately being capitalised upon by the Congress.⁶ This phase of competitive Hindu nationalism within the Hindu ruling spectrum of varying shades, has brought untold misery to minorities, which has also been aggravated by the absence of an independent and competent impartial law-enforcement institutional mechanism.

It is distressing to note that during the last two decades while one finds human rights groups and individuals committed to secular humanist values taking pains to document and expose failure of the police and the political executive, the bureaucracy and the media during communal conflicts and violence, no sustained effort has been made by them to reform the system – setting attainable goals. Legal administrative measures and policies that need to be adopted for prevention and control of communal conflicts have been suggested by the National Integration Council (1961), National Police Commission (1978-81), prime minister’s Fifteen Point Programme on Minorities (1983), the IOS 1993, the Citizens For Democracy and Centre for the Study of Society and Secularism (1994), and the Minorities Council (1996), and even by the National Commission For Minorities, (1999). Studies by N C Saxena (1983) and V N Rai, Human Rights Watch/Asia and the Amnesty International have also been publishing reports and recommendations.⁷

Remedial Measures

At present Muslims continue to be underrepresented at all levels and ranks of the police. In spite of periodic official directions for special recruitment of minorities, no appreciable progress has been made in this regard. V N Rai, (I G, B S F) and justice Tarkunde⁸ hold the opinion that the objective of adequate representation of minorities in the present circumstances cannot be achieved without fixing a quota. It needs to be kept in view that in certain states like Uttar Pradesh, the numerical ratio of Muslims in the police was reduced under unstated official policy (once the late Nikhil Chakravarty told me that the PAC, notorious for its anti-Muslim bias, was designed by then UP chief minister G B Pant to deal with the Muslims from whom he apprehended trouble after partition). The issue of adequate presence of minorities, especially Muslims, in the law-enforcement has not been addressed by the human rights movement, nor by the secular political class, because of ‘secular-communal’ fixation. Whatever opinion one may hold about how to ensure the fair share of minorities in other sectors of the public life, their presence in the police is required to enable it to more impartially enforce law, by neutralising its own biases, and by inspiring greater confidence in the communities that it wants to serve. It needs to be noted that in the UK without fixing any ethnic quota departments, especially those involved in policing, have been given targets spread over periods of three, five and ten years, for adequate recruitment of ethnic minorities.

It needs to be noted that one of the thrusts of the recent Durban Declaration and Programme of Action is for states to create a diverse police force free from discrimination and intolerance, recruiting personnel from all groups including minorities in the entire criminal justice system.

The issue of quota reservation for minorities in the police and other wings of law-enforcement system should be addressed as part of the broader issue of democratic governance and rule of law for ensuring to minorities security of life, property and places of worships, delinking it from what is perceived as ‘communal reservation in public services’. Such reservation, though may have legitimacy for integrating backward minorities like Muslims into the national mainstream and their modernisation by expanding the space available to them in the common national domain. Greater the opportunities for participation of Muslims in the common national domain, greater their sense of belonging and stakes in its stability.

The other human rights issue that needs attention is that of ending impunity, being enjoyed by perpetrators of massacres which is universally acknowledged as a source of recurrence of violence, which makes victims seek desperate remedies, taking on occasions recourse to terrorism. This chain of violence and counter-violence has been testified by justice Sri Krishna who gave his definitive opinion about the serial bomb blasts in Mumbai in March 1993 that they were a reaction to the totality of events in December 1992 amd January 1993 in Ayodhya and Mumbai “by angry, frustrated and desperate young Muslims keen to seek revenge for the perceived injustice done to and atrocities perpetrated on them or to others of their community”. Justice Sri Krishna noted that, “the Muslims perhaps felt that the government and the police, instead of protecting their interests, had actually acted against their interests by joining hands with communal elements which took a lead in the riots. A large number of Muslim youths came to entertain this firm belief.”⁹

The issue of impunity being enjoyed by perpetrators of communal violence, cannot be delinked from the general issue of the reform of the criminal justice system and rule of law. However the course of law in Ayodhya from December 1949 till date deserves to be reviewed as a case apart. It is not only a case of delay, but there is also a perception of distortion and lack of fairness and even of will to deliver speedy justice, which has caused what the apex court itself called an act of national shame.

Human rights groups like PUCL, PUDR and the People’s Human Rights Commission, which have thoroughly documented the failure of the political, administrative and police departments of the law-enforcement system, need to subject to critical scrutiny the role of the judiciary collectively in the Ayodhya-related cases, with a view to ascertaining what has made the VHP, Bajrang Dal and the Shiv Sena bold enough to claim that they can defy law with impunity. If the issue is not urgently addressed, the threat of the Sangh parivar to arm millions of kar sevaks and gradually build pressure through periodic celebratory Hindu mass mobilisations, is likely to be countered by terrorist acts from desperate, frustrated and misguided youths from among the victim minority groups.

Not by Force Alone

The very reason for their insistence on building the Ram temple at the very site where the Babri masjid stood, lies in their basic motivation of revenge. There is therefore no chance of any dialogue over Ayodhya with any credible Muslim section if the Hindu religio-cultural space continues to be wrongly monopolised by the Sangh parivar. The problem with non-Sangh Hindus has been that they do not seem to know their mind, or at least are not ready to clearly spell out what they would like Muslims to do. The only time one such Hindu i e, Rajmohan Gandhi, advised Muslims to relocate the masjid, Muslims did not respond – for the reason that ‘secular’ politicians had developed a stake in Muslims taking a hard line. The only time three wise Muslim intellectuals offered to talk to Advani over Ayodhya, the latter backed out of his call for dialogue over only one temple, instead of three (a letter was sent to Advani in this regard by Badr-ud-din Tyabji, colonel B H Zaidi and Saiyid Hamid on August 23, 1990)¹⁰ which remained unanswered.

Any Ayodhya cell in the cabinet secretariat, or secret talks with stray Muslim individuals or even groups is not going to yield any result. The solution lies in non-Sangh Hindu community leaders and intellectuals and enlightened Muslims – from among the ulema as well as intellectuals – to take the initiative for dialogue in a spirit of mutual respect and goodwill. Both groups should be so intellectually equipped as to be aware of the history of Hindu-Muslim discord over ethno-religious issues, and its adverse impact on community relations. They should also have the right vision of a harmonised Hindu-Muslim relations under a plural cultural set-up wherein legitimate communitarian values are accommodated and civilisational aspirations of the two fulfilled without any clash. I am sure it lies in the realm of the possible. Those taking initiative for such a dialogue should be men and women with the courage of conviction to be able to take apparently unpopular decisions over all contentious issues including cow and ‘Bande Mataram’ in the larger interest of the communities and the country.

The government, especially the present one led by the BJP, cannot assume the role of the promoter of dialogue. It can and should take measures for reform of the system, as pointed out above, with a view to assuring the minorities that their security would not be under threat. It should also make minorities, especially Muslims, develop greater sense of belonging by expanding avenues and opportunities of their participation in the national life. Such ‘appeasement’ of minorities is a necessary condition for creating an atmosphere conducive to a fruitful dialogue over Ayodhya and other issues. The enlightened sections of the Sangh parivar should have the vision and insight to understand that such confidence building measures (CBM), like Urdu script getting its due recognition and the community’s right to separate family laws, cannot undermine those ‘Hindu interest’ that they are seeking to protect and promote.

A necessary component of CBM is destigmatisation of Muslims for imagined sins of the past including partition, and their consequent negative stereotyping and treatment as a suspect community, all be replaced by their treatment as normal Indians. This would require a commitment to educate and sensitise the average Hindu for inculcation of positive humanist attitudes. Muslims will have to reciprocate by “de-stereotyping” the ‘kafir’ and treating Hindus as normal humans and fellow countrymen, with whom best of relations are recommended by Islam, thereby ruling out any perpetual confrontation including armed struggle, howsoever desperate they might feel on occasions.

The role of facilitators and promoters of dialogue has to be played by the statutorily empowered Community Relations Commission (CRC) as proposed in the NCM report on Communal Riots: Prevention and Control (1999), which has found acceptance of the National Commission to Review the Working of the Constitution. The CRC is envisaged as a body comprising eminent social scientists, jurists, and experts in community relations and conflict resolution along with distinguished publicists entrusted with the responsibility of prevention and resolution of all inter-community conflicts through dialogue. In the event of failure of dialogue the CRC will be empowered to initiate legal action against all hate speech and actions. The CRC will function in liaison with the civil society’s organisations at district, state and national level.

One such organisation named Inter-Community Peace Initiative (ICPI) has already been constituted, whose mission statement includes commitment to cultural pluralism, upholding rule of law and promoting dialogue between communities on divisive ethno-religious issues.

Let the CRC be established with such eminent members whose integrity and sagacity is unquestionable, and who enjoy the confidence of minorities. The CRC in liaison with bodies like the ICPI may be in a position to bring about conciliation of the communities without any sense of humiliation or unfairness to the either party. Those involved in law and law-enforcement will not be abdicating their role. There may be complementarity of roles on an issue like Ayodhya. There may be appointed a tribunal or arbitration council by the consent of the parties.

It all depends on whether the political parties in the government and the opposition and the non-Sangh Hindus and non-political Muslims, especially enlightened ‘ulema’ and intellectuals feel the urge to take bold initiatives for a peaceful and just order in India wherein the rightly prioritised interests of all communities may be protected.

It is rather depressing to see non-Sangh Hindus, especially Gandhians, not playing an organised active role. It is no less depressing to see Muslim community obsessed with ‘legalism’ of a variety which will not yield any positive results in terms of their cultural and religious rights or economic, social and political rights even if they win the legal battle in the long run (very very long run). Will those who stand for genuine Hindu religious values and civilisational aspirations, as creatively interpreted by Vivekananda and others, get activised? Will Muslims develop a better sense of history and rightly prioritise their own collective goals and interests? Can they be inspired by a more inclusive vision of their own future in India than mere second rate legalists are capable of?

Notes

1 BJP’s white paper on Ayodhya And the Rama Temple Movement, BJP, April 1993, p 152.
 2 Readings on Minorities: Perspectives and Documents, Vol I, Iqbal A Ansari (ed), IOS, New Delhi, 1996, pp 174-75.
 3 BJP’s White Paper on Ayodhya, op cit, p 155.
 4 The Times of India, New Delhi, January 22, 2001.
 5 The Times of India, New Delhi, January 19, 2000.
 6 The Times of India, New Delhi, May 15-16, 2001.
 7 (i) Second and Sixth Reports of the National Police Commission, Government of India, August 1979-81; (ii) Prime Minister’s 15-Point Programme on Minorities, 1983 (PM’s letter dated May 11, 1983 to the home minister and other members of the council of ministers regarding problems of minorities); and (iii) N C Saxena’s Inquiry Report on Meerut Riots, September-October, 1982.
   (iv) V N Rai, Combating Communal Conflicts: Perceptions of Police Neutrality during Hindu-Muslim Riots in India, LBS National Academy of Administration, Mussoorie, 1996.
   (v) NCM study by N C Saxena, 1983.
   (vi) Amnesty International’s Report on Allegations of Extra-Judicial Killings By The PAC In And Around Meerut, May 22-23, 1987, AI Index: ASA 20/06/87/Distr:SC/PO/CD/GR.
   (vii) Iqbal A Ansari, Ayodhya: The Failure of The System of Law – Enforcement, IOS, Seminar ‘Beyond Ayodhya’ January 1993.
   (viii) Report of the Seminar on ‘Communal Riots and the Role of Law – Enforcement Agencies’ organised by CFD and CSSS, Bombay, January 1994.
   (ix) Amnesty International’s Memorandum on The Police Procedures and Practices in India and The Bombay Riots, 1992-93, January 1994, AI Index: ASA 20/29/94
   (x) Human Rights Watch/Asia Report Communal Violence and Denial of Justice In India, 1996.
   (xi) Communal Riots, the State and Law In India, Minorities Council, IOS, New Delhi 1997.
   (xii) NCM Report Communal Riots: Prevention and Control, Minorities Council, New Delhi, 1997.
 8 Tarkunde, V M: ‘Communal Harmony: A Multi-Pronged Approach’ in Communal Riots, the State and Law In India, Iqbal A Ansari (ed), IOS, New Delhi, 1997 pp 35-38.
 9 Report of the Sri Krishna Commission, Vol I, Ch VI, p 45.
10 From Conflict to Conciliation, Inter-Community Peace Initiative, New Delhi, p 17.