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Above: Antarrashtriya Hindu Parishad president Praveen Togadia leads a march/Photo: UNI

While the apex court has deferred hearing of this dispute, the saffron brigade has aggressively demanded legislative intervention to build the Mandir and thereby enjoy the political spoils

By Puneet Nicholas Yadav

In a few days, Diwali would have come and gone. Tall claims by garrulous leaders of the RSS-BJP combine who said that construction of a Ram Mandir at the site of the demolished Babri Masjid in Ayodhya would commence by Diwali, irrespective of the fate of the title suit’s proceedings in the Supreme Court, have once again fallen flat.

However, with the Supreme Court making it clear that resolving the decades-old land dispute in Ayodhya is not its priority, the demand from the Hindu right for building a temple dedicated to Lord Rama at his supposed janmabhoomi has reached a crescendo. As a desperate BJP seeks a renewed term at the centre and in several states during the forthcoming polls, its leaders have begun aggressively attacking the apex court, with party president Amit Shah himself leading the charge.

The Supreme Court’s bench headed by Chief Justice Ranjan Gogoi has deferred, till January at least, its pronouncement on when arguments in the Babri Masjid-Ram Janmabhoomi title suit can commence. The matter is unlikely to be resolved before the general election due in April-May 2019.

In their misplaced bravado, BJP motor-mouths and their compatriots from the extended parivar of the RSS and Vishwa Hindu Parishad (VHP) have urged Prime Minister Narendra Modi’s government to bypass the litigation process. They want an ordinance or a law passed by Parliament in the upcoming winter session to facilitate the construction of the Ram Mandir.

There is no denying that when it comes to turning an adverse situation to its advantage, the BJP trumps all its political rivals, especially the Congress. The delay in disposal of the title suit should have ideally been a setback for the BJP. Building a Ram Mandir has been the party’s long unfulfilled poll promise. Political expediency during the 2014 Lok Sabha campaign forced the BJP to make only a fleeting mention of the issue in the “cultural heritage” section of its manifesto. But the absolute majority Modi got in May 2014 emboldened his brothers-in-arms to make the Ram Mandir a frontline issue soon after the poll results.

The tectonic plates of India’s political landscape have shifted since then. The BJP no longer appears invincible. The Modi government’s repeated failures on the economic front, undermining of constitutional institutions and opaque decision-making have all given the Opposition enough ammunition to attack the BJP with. These can be seen in the fracas in the CBI and impropriety in the Rafale deal. And so, it mustn’t surprise any political observer that the BJP, under its electoral

pundit, Shah, is assiduously harking back to its “Mandir wahin banayenge” rhetoric. The electoral dividends of this communally polarising slogan are not lost on the Modi-Shah duo.

While Modi has maintained his characteristic silence on the Supreme Court’s decision, he has allowed Shah, his ministers and other members of the extended Sangh Parivar to go on a belligerent blitzkrieg against the judicial process. Shah, of course, is cleverer than the rest and is attacking the Court’s Sabarimala verdict instead of specifically addressing the Mandir issue.

Days after the Ayodhya hearing was deferred to January, with Chief Justice Gogoi being non-committal as to when the hearings would commence, Shah, on a visit to Kerala, offered his unsolicited advice (or diktat) to the top court. Addressing party workers and those opposing the landmark verdict that allowed women to enter the Sabarimala temple, Shah brazenly told the Supreme Court to “take only such decisions that are acceptable to the people”. The BJP’s political rivals have been claiming that the party wants to turn the Sabarimala quagmire into its Ram Mandir issue for southern India and so Shah was playing to the protesters in Lord Ayyappa’s gallery. But the timing of Shah’s message made it clear that he was simultaneously addressing a larger constituency—the Ram bhakts elsewhere in the country.

Others who joined this circus—RSS chief Mohan Bhagwat, BJP MPs Subramanian Swamy, Sanjeev Balyan, Vinay Katiyar, Giriraj Singh and VHP international working president Arun Kumar—were more indiscreet with their belligerence against the due process of law. They variously demanded either an immediate ordinance on building the Ram Mandir or legislation to the effect to be passed in the winter session. Giriraj Singh, a Union minister, went to the extent of issuing a veiled threat. He said that “Hindus are running out of patience” on the Ram Mandir issue and that he feared “what will happen if Hindus lose patience”.

While calls for an ordinance or legislation may make for good newspaper headlines, noisy television debate and toxic political pow-wow, executing them isn’t tenable for the government. The reasons for this are many. Any such attempt would strengthen the impression that the Modi government has no respect for judicial processes as the title suit is already sub judice. Issuing an ordinance now, when the winter session is less than two months away, would also trigger a barrage of criticism from the Opposition.

The BJP still doesn’t have a majority in the Rajya Sabha and so, despite its brute strength in the Lok Sabha, it will not be able to have a bill on the issue passed by Parliament. Bringing an ordinance or a bill so late into its five-year term will also open the Modi-Shah duo and the BJP to the criticism of using Lord Rama purely for electoral gains. Congress leader P Chidambaram and his party colleagues have already taken this line by asserting that the BJP remembers Ram Mandir only once every five years. Also, the BJP leadership has, in its poll manifesto and campaigns till 2014, repeatedly said that it would accept the Court’s verdict on the title suit.

Further, an ordinance or bill, will be immediately challenged in the Supreme Court and will most likely be struck down as void. This is because, as per the Acquisition of Certain Area at Ayodhya Act, 1993, the centre is only entitled to be a statutory receiver of the disputed land and must maintain the status quo that existed when this legislation was passed. The Supreme Court, while hearing the challenge to the Ayodhya Act, had upheld this status of the centre in the M Ismail Faruqui verdict of October 24, 1994.

The Ismail Faruqui verdict is also crucial to the current slugfest as it laid out a problematic and somewhat uncalled for observation: “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in open… there can be no reason to hold that a mosque has a unique or special status higher than that of the places of worship of other religions in secular India to make it immune for acquisition by exercise of sovereign or prerogative power of the state…”

This was challenged in the Supreme Court and a reference for clarification by a larger (seven-judge) bench was sought on the observation that a mosque was not integral to Islam and hence, not a prerequisite for offering of prayers. However, a three-judge bench headed by then Chief Justice Dipak Misra (days before he demitted office on October 2), upheld the Ismail Faruqui judgment in a 2:1 verdict and refused to refer it to a larger bench. That the apex court up­held the assertion that mosques were not integral to Islam was immediately lapped up by the Ram Mandir campaigners and triggered the current demands for an ordinance or legislation to build a temple at the disputed site.

Ayodhya case: Such a long journey

1528: During the reign of Mughal Emperor Babur, a mosque, the Babri Masjid was built in Ayodhya on a site which many Hindus consider the place of birth of Lord Rama. The Babri Masjid was named after Babur.

1853: First recorded violent clashes broke out at the religious site.

1859: The colonial British administration created fences to separate worship places; Muslims were allowed to use the inner court while the Hindus used the outer court.

1949: Idols of Ram Lalla are placed surreptitiously under the central dome. The government proclaimed the site a disputed area and locked the gate.

1950: Gopal Simla Visharad filed the first suit in a Faizabad civil court for rights to perform puja of Ram Lalla. Paramhansa Ramachandra Das also  filed a suit for continuation of puja and keeping idols in the structure.

1959: Nirmohi Akhara filed third suit.

1961: UP Sunni Central Wakf Board filed fourth suit.

1984: Vishwa Hindu Parishad (VHP) formed a committee to liberate the birthplace of Lord Rama and build a temple.

1986: Muslims also formed the Babri Mosque Action Committee after the district judges issued an order to open the gates of the mosque and allow Hindus to worship there.

1989: The newly-elected Rajiv Gandhi government allowed the VHP to perform shilanyas for the Ram Temple on the disputed land. The VHP laid the foundation to build a Ram Temple adjacent to the disputed mosque site.

1989: The four suits pending were transferred to the High Court.

1990: The then BJP president, Lal Krishna Advani, took out a cross-country rathyatra to garner support for a Ram temple at the site. He was arrested in Bihar on October 23. The BJP withdrew its support to the government.

1991: The Kalyan Singh government in UP acquired 2.77 acres land in the area and gave it on lease to the Ram Janmabhoomi Nyas Trust. The Allahabad High Court stopped any permanent construction activity in the area.

1992: In July, several thousand kar sevaks assembled in the area and the work for maintenance of the temple started. This activity was stopped after intervention of the prime minister. Meetings started between the Babri Masjid Action Committee and VHP leaders in the presence of the home minister. On October 30, the Dharam Sansad of the VHP proclaimed in Delhi that the talks had failed and kar seva will resume from December 6.

Dec 6, 1992: The Babri Mosque was demolished by a gathering of near 200,000 kar sevaks. Communal riots across India followed.

Dec 16, 1992: The Congress government at the centre, headed by PV Narasimha Rao, set up a commission of inquiry under Justice Liberhan.

1993: The government took over 67 acres of land around the area, sought the SC’s opinion on whether there existed a Hindu place of worship before the structure was built.

1994: The case was sent back to the Lucknow Bench of HC.

Feb 27, 2002: The VHP declared March 15 as the deadline to begin construction of the Ram Temple. Hindu activists returning from Ayodhya on a train were attacked in Godhra. Nearly 58 people were killed.

Mar 2002: 1,000-1,500 people were reportedly killed in the riots following the Godhra incident in Gujarat.

Apr 2002: The Lucknow bench of Allahabad High Court of three judges began hearings in the case.

Jan 2003: Archaeologists started a court-ordered survey to find out if a Ram Temple existed on the site.

Aug 2003: The survey found evidence of a temple beneath the mosque. However, Muslim groups disagreed with the findings.

Sept 2003: A court ruling charged seven Hindu leaders and said they should stand trial in the demolition case. However, no charges were brought against LK Advani on the ground that the case related to the volunteers who had razed the mosque. The same was upheld by Allahabad High Court in 2010.

Nov 2004: A UP court ruled that the previous ruling exonerating Advani should be reviewed since he said in October 2004 that his party was unwaveringly committed to building the Ram Temple.

July 2007: The apex court refused to admit a review petition on the case.

July 2009: The Liberhan Commission filed its report on the Babri mosque demolition—17 years after it was set up.

Nov 2009: The commission’s content was made public, which led to a huge uproar in the parliament as the report named many leading BJP politicians.

Sept 2010: Allahabad High Court’s ruling gave one-third possession of the site each to Muslims, Hindus and the Nirmohi Akhara.

By a 2-1 majority verdict (in the bench of Justice SU Khan, Justice Sudhir Agarwal and Justice DV Sharma), plaintiffs representing Lord Rama, the Nirmohi Akhara and the Wakf Board were declared joint title-holders of the property. The bench asserted that the portion under the central dome of the demolished three-dome structure where the idol of Ram Lalla had been kept in a makeshift temple was the birthplace of Lord Rama “as per faith and belief of the Hindus”.

2010: The Allahabad High Court upheld the decision of the trial court to drop the charges against Advani.

Dec 2010: The Akhil Bharatiya Hindu Mahasabha and Sunni Wakf Board moved the Supreme Court, challenging part of the Allahabad High Court’s verdict.

2011: The CBI appealed against the High Court order against dropping of charges against Advani. Advani and others sought dismissal of the CBI petition, citing delay as the reason.

May 9, 2011: The Supreme Court stayed the High Court order splitting the disputed site in three parts; remarked that the HC verdict was surprising as no party wanted a division of the site.

Mar 21, 2017: The Supreme Court said charges against senior BJP leader Advani and other leaders cannot be dropped and that the case may be revived. The apex court said the Ram temple is a sensitive issue and should be settled out of court through discussion between the two sides.

Dec 1, 2017: Thirty-two civil rights activists file a plea challenging the 2010 verdict of the Allahabad HC in the title suit.

Feb 8, 2018: The SC starts hearing the appeals in the title suit.

Apr 6: Rajeev Dhavan files a plea in the SC to refer the issue of reconsideration of the observations in its Ismail Faruqui judgment of 1994—mosque isn’t integral to Islam—to a larger bench.

Sept 27: SC declines to refer the Ismail Faruqui verdict to a larger Constitution bench; says title suit proceedings can commence on October 29.

Oct 29: Three-judge SC bench headed by CJI Ranjan Gogoi says decision on when arguments in the title suit may commence and which bench would hear them to be taken in January 2019.

These temple votaries also made the mischievous argument that while a temple dedicated to Lord Rama must be made on his birthplace, a mosque that has, even in the Supreme Court’s opinion, no particular relevance in Islam can be demolished and shouldn’t be resurrected.

However, those demanding the Ram Mandir skipped that portion of the verdict by Chief Justice Misra’s bench which was inconvenient for their cause. The verdict in M Siddiq, which had challenged Ismail Faruqui, said unambiguously: “The disputed area is vested in the Central government as a statutory receiver with a duty to manage and administer it in the manner provided in the Act maintaining status quo… to take all necessary steps to implement the decision in the suits and other legal proceedings and to hand over the disputed area to the party found entitled to the same on final adjudication made in the suits.” This line makes it clear that the status quo on the disputed land cannot be changed, even by an ordinance or legislation.

Surely Modi, Shah and the battery of seasoned lawyers within the central government know that there is no way of subverting the legal process to expedite building of the Ram Mandir. So why is the BJP indulging in this charade? The answer lies in political chicanery. A senior BJP leader told India Legal: “We all know that we have to wait for the Supreme Court’s verdict and can’t do anything at the janmabhoomi until then. Ram Mandir is an emotive issue and if we can convince our voters that the wait for it is nearly over, then all other issues being raked up by the Opposition—Rafale, unemployment, communal violence, notebandi, etc—will become redundant.”

Asked if the voters may call the BJP’s bluff, the leader said: “This is all a matter of convincing the people. If the government brings a Bill, we know it will be stalled in the Rajya Sabha and we can then tell the people that while we were ready to even take on the Supreme Court, the anti-Hindu Opposition parties led by the Congress failed them. If an ordinance is brought and struck down by the Court, we will still succeed in reinforcing our intent on building the temple.”

Congress leader and senior advocate Kapil Sibal, who got trolled for urging the top court earlier this year to defer the title suit’s hearing till next year but finds himself vindicated by Chief Justice Gogoi’s recent order, believes that the BJP has tied itself in knots. “It is now clear that the BJP only wants to use the Ram Mandir as a vote-winning issue. The Congress has repeatedly said that it wants a legal resolution to the matter, but the BJP has no respect even for the judicial process. It did nothing on its Mandir promise during its earlier stint at the centre (1999-2004) and has suddenly remembered Lord Rama now after being in power for four and a half years. The people can see through such ploys. You can’t use a fake promise to your advantage indefinitely,” Sibal told India Legal.

That the Ayodhya dispute was always a political and not legal one has been clear ever since the saffron front began asserting its electoral ambitions—first in its Jan Sangh avatar and later as the BJP. The Congress party can deny it with all its collective fury and embarrassment, but it has some hand in the way things are now. The fact that the dismissible rants have turned into a deafening cacophony stems from a decision the Rajiv Gandhi government took. On November 9, 1986, it allowed the shilanyas of the Ram Mandir at the disputed site. Further, then Prime Minister PV Narasimha Rao’s foolishness failed to prevent the demolition of the Babri Masjid by kar sevaks on December 6, 1992.

Now, as the polls near, the BJP can aggressively reignite communal passion with its Mandir politics and temple-hopping, janeu dhari (the one who wears a Brahminical thread) Congress president Rahul Gandhi can tell Hindu voters that he is the “better Hindu”, irrespective of what his gotra may be.

The Ram Mandir, for now, is no closer to becoming a reality than it was when the Allahabad High Court gave a please-all verdict on September 30, 2010, to divide the disputed 2.77-acre land in Ayodhya equally between the three feuding claimants with Ram Lalla (the infant Lord Rama) himself being one of the petitioners.

The Supreme Court now stands as the final arbiter, preventing any attempts at a hostile takeover.

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