The Rashtriya Swayamsevak Sangh and its family compris-
ing the Bharatiya Janata Party, the Vishwa Hindu Parishad,
Bajrang Dal and others managed to bring down the Babri
masjid in 1992 through a clever use of administrative control,
legal duplicity, the complicity of the Congress-led central govern-
ment of the time and with the exercise of goondaism. The de-
struction of the Babri masjid was a defning moment in a dispute
that caused extensive damage to the secular and democratic
foundations of India’s state and society. It has been nearly two
decades since the destruction of the mosque and, even today,
many of the wounds have not healed.
It was for these and related reasons that there was much ex-
pectation and a fair amount of trepidation about the eventual
judgment of the Allahabad High Court on the suits fled before its
Lucknow bench to decide the owner of the land where the Babri
masjid once stood. The expectation was that the Allahabad High
Court would deliver justice to the minorities by undoing the
usurpation of their mosque and thus help restore the faith of
Indian citizens in the rule of law, not to mention, secularism.
And it is for these very reasons that the judgment the court
fnally delivered on 30 September fails on almost all counts. Even
though the majority judgment has tried to be “fair” and has given
each of the claimants an “equal” share of the disputed land, it has
erred by treating the trespasser, transgressor and aggressor on the
same footing as the victim. It is well known that a strictly “neutral”
legal position, without giving any weightage to the political and
social contexts of the claims, always favours the aggressor and the
stronger party. It is essential, and by now an accepted part of juris-
prudence worldwide, that such neutrality leads to further victimi-
sation of the weak and oppressed. It is strange, to say the least, that
the judgment has taken cognisance of the contested “fact” that fve
centuries ago the mosque was built after breaking a temple, but has
been blind to the very recent demolition of the mosque in contempt
of court. The judgment has accepted the faith claims of the Hindu
litigants going so far as to put a legal stamp on the violent takeover
and destruction of the mosque, and the installation of a makeshift
“temple” at the spot. On the other hand, the judgment has been
totally blind to the faith of the Muslim side and their claims to their
place of worship, which was so brazenly usurped and then destroyed.
It is not apparent that the biases contained in the judgment are
based on a deliberate attempt to discriminate against the Muslims.
Far from it, since the court has gone out of its way to accommodate,
in a manner that it may think is “fair”, the claims of the Sunni Wakf
Board and has given it an “equal” share in the property. It is for the
frst time since the mosque was snatched from the Muslims of
Ayodhya in 1949 that the court has given them legal title to that land,
even if one small share. (The fact that the Sunni Wakf Board has
legal title to a part of the disputed land and can build a mosque on
its land may seem like no small matter, given that just a few years
ago Hindutva groups had been insisting that no mosque will be al-
lowed inside the town of Ayodhya. But the Hindutva groups are
even now asking for this land for the temple and have proposed that
their Muslim “brethren” support the construction of a temple indi-
cate that court ruling or not they will not countenance the estab-
lishment of a new mosque at Ayodhya.) It is evident from histori-
cal records that both Muslims and Hindus of Ayodhya have consid-
ered the building and areas around the Babri masjid to be sacred
and have used these areas in common before the disputes arose in
the 19th century. Therefore, it is correct for the court to give them
an equal share in the property, since the disputants are not in a po-
sition to use the area in common. Whether two-thirds for the Hin-
du claimants and one-third for the Muslims is equal and fair is de-
batable, but this situation has arisen since the court has agreed to
include the interloper – the pan India Hindutva movement – as a
valid claimant to the property. This has happened since much of
the Hindutva understanding of Indian history and culture have,
over time, become part of our “common sense”.
Of the three judges, justice B V Sharma’s judgment reads more like
the submission of a lawyer arguing the case for Ram Janmabhoomi.
The judgments of justice Sibghat Ullah Khan and justice Sudhir
Agarwal, though they have made an attempt to fnd an amicable
solution, remain coloured with the biases listed earlier. That these
biases appear inbuilt into their understanding and “common
sense” is what makes them so much more disturbing. It is because
the fnal order is based on such an understanding that the sense of
justice appears missing from it. Communal harmony and the
rights of the citizens, especially those from the minorities, cannot
be achieved as long as our understanding is handicapped by preju-
dices and predispositions which tilt towards the majority commu-
nity’s self-conceptions. It is for this reason that the verdict of the
Allahabad High Court has failed to achieve justice. It is now up to
the Supreme Court of India to restore the foundations of justice.
9/10/ 2010)
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