Monday, October 4, 2010

How Lord Rama Himself became a litigant in reclaiming his birth place.(articles by Subramanian Swamy & Surya Prakash)

Fundamentals of Sri Ram temple 

By Subramanian Swamy 

03 Oct 2010 11:48:00 PM IST, New Indian Express



True and devout Hindus believe Lord Sri Rama was born in Ayodhya, the then capital of a flourishing kingdom of the Suryavamsa dynasty. Rama is venerated as Maryada Purushottam, and worshipped by Hindus of the north. As an avatar of Vishnu, he was first propagated by Tamil saints Nayanmars and Alwars; the north later came to accept Rama, especially thanks to the saint Tulsidas. In that sense, Sri Rama was the first truly national king of India, supra region, supra varna or jati. 


The exact spot where Rama was born has been and remains firmly identified in the Hindu mind and is held as sacred. This is the very area where stood from 1528 till December 6, 1992, a structure that came to be known as Babri Masjid, put up in 1528 by Babar's commander Mir Baqi.


Baqi was a Shia Muslim, and hence he intended it to be a place for Shias to perform namaz. Today, interestingly, the Shia clerics have made it clear to Hindu organisations that they would agree to have the site restored as a Ramjanmabhoomi. It is the Sunni Waqf Board, which entered the legal dispute as late as 1961, that has been claiming the title to the land on which the structure once stood. I call it a 'structure' since it cannot be strictly called a mosque by Sunni edicts — because it did not have the mandatory minarets and wazu (water pool). 


In Skanda Purana
(Chapter X, Vaishnav Khand) the site is vividly described. Valmiki Ramayana also describes it beautifully. Less than two decades before Mir Baqi carried out the horrible demolition of the Ram temple, Guru Nanak had visited the Ramjanmabhoomi and had darshan of Ramlala in the mandir at the spot. Guru Nanak himself records in 1521 the barbarity of Babar's invasions (in Guru Granth Sahib at p.418). In Akbar's time, Abul Fazal wrote the Ain-i-Akbari in which he describes Ayodhya as the place of "Ram Chandra's residence who in Treta Yuga combined spiritual supremacy and kingship" (Translated by Colonel H S Jarrett and published in Kolkata in 1891).


In Chapter X of the Report of the Archeological Survey of
India, NW, and Oudh (1889) it is mentioned (p.67) that Babri Mosque 'was built in AD 1528 by Mir Khan on the very spot where the old temple of Janmasthan of Ram Chandra was standing'.

It is recorded in many official and judicial proceedings. In 1885, for example, Mahant Raghubar Das in a Suit No 61/280 of 1885 filed in the court of the Faizabad sub-judge against the secretary of state for India (who was based in London), prayed for permission to build a temple on the chabutra outside the mosque. His suit was dismissed on March 18, 1886.


However, in his order, the sub-judge, an Englishman, stated: "It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindus. But as the event occurred 358 years ago, it is too late now to remedy the grievance." 
It is well-established by GPRS-directed excavations done under the
Allahabad High Court monitoring and verification in 2002-03, that a large temple did exist below where Babri Masjid structure once stood. Inscriptions found during excavations describe it as a temple of Vishnu Hari who had killed the demon king Dasanan (Ravana).


The Sunni Waqf Board does not accept these findings. It does not however matter if all this was indeed so or not, since under Section 295 of the Indian Penal Code(IPC) it is prescribed that 'Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons, with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both'.


That is, an offence under criminal law is committed if a body of persons hold something as sacred. It does not matter if the majority does or does not hold so. Nor can a court decide what is sacred and what is not. The offence under Section 295 IPC is cognisable and non-bailable, as well as non-compoundable. The fundamental question before us is: Can a temple and a masjid be considered on par as far as sacredness is concerned? Relying on two important court judgments that hold the field today, the answer is 'no'. A masjid is not an essential part of Islam, according to a majority judgment of a Constitution Bench of the Supreme Court.


In the famous Ismail Farooqui vs Union of India case (reported in (1994) 6 SCC 376), the Supreme Court had observed: 'It has been contended that a mosque enjoys a particular position in Muslim law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah…and any person professing Islamic faith can offer prayer in such a mosque, and even if the structure is demolished, the place remains the same where namaz can be offered'. (para 80).
The Constitution Bench rebutted this contention. The Bench stated: 'The correct position may be summarised thus. Under Mohammed law applicable in
India, title to a mosque can be lost by adverse possession…A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India'. (para 82).


Thus what was wrong in the demolition of the Babri Masjid on
December 6, 1992 was that it was unauthorised by law and hence a criminal offence. Otherwise any government depriving the Muslims of the Babri Masjid is within law, if the government decides to do so in the interest of public order, public health and morality (Article 25 of the Constitution). This is the position in Islamic law as well since in Saudi Arabia the authorities demolish mosque to lay roads. Even the mosque where Islam's Prophet Mohammed used to pray was demolished for a road to pass through! 


When I was Union law and justice minister, the question of the status of a temple — even if in ruins or without worship — had come up before me in November 1990 in a case of a smuggled out bronze Nataraja statue which was up for sale in London.
The Government of India, when Rajiv Gandhi was PM, decided to file a case in the
London trial court in 1986 for recovery. The Nataraja statue had by then been traced to a temple in ruins in Pathur, Thanjavur district. A farmer named Ramamoorthi had unearthed it in 1976 while digging mud with a spade near his hut.


When the news spread, touts of an antique dealer paid a small sum and smuggled it out to
London, where in 1982 they sold it to Bumper Development Corporation Private Limited. The corporation sent it to the British Museum for possible purchase. By then the Government of India asked the UK government to take action.


The Nataraja idol was seized by London Metropolitan Police, and thus the corporation sued the police in court for recovery but lost the case. An appeal was filed in the Queens Bench which was dismissed on
April 17, 1989. The Bumper Corporation went to the House of Lords. On February 13, 1991 when I was law minister, the judgment came dismissing Bumper's final appeal (see (1991) 4 All ER 638).


UK apex court upheld the Indian government's position that because of the prana prathista puja a temple is owned by the deity, in this case Lord Shiva, and any Hindu can litigate on behalf of the deity as a de facto trustee. The Bench consisting of Justices Purchas, Nourse and Leggatt concluded: "We therefore hold that the temple is acceptable as party to these proceedings and that it is as such entitled to sue for the recovery of the Nataraja." (page 648 para g).


Even if a temple is in ruins as the ASI had found, or destroyed as Ram temple was, any Hindu can sue on behalf of Lord Rama in court for recovery! No such ruling exists for a mosque. That is, the Ram temple on Ramjanmabhoomi has a superior claim to the site than any mosque. This the fundamental truth in the Ayodhya dispute. This truth will apply to Kashi Vishvanath and Brindavan temple sites as well. 





'Next friend' helped Ram claim rightful place
October 04, 2010   2:53:16 PM


Several commentators, who are not clued into the intricacies of Hindu law, have expressed surprise over the Allahabad High Court's verdict in the Ayodhya case, especially in regard to the juristic rights of the deities exercisable through a "next friend" and on the court's eventual conclusion that Ram Janmabhoomi constitutes the birthplace of lord Ram. Much of the confusion stems from a lack of understanding of the fact that a Hindu deity can sue and be sued and that the deity can seek relief in courts via a "next friend".

Of the four title suits that were decided by the Allahabad High Court in the Ayodhya case, only one suit filed on behalf of lord Ram was accepted by the court. All the other suits (filed by Sunni Central Board of Wakfs and others; Sri Gopal Singh Visharad and Nirmohi Akhara and Another) were dismissed. In the suit filed on behalf of lord Ram (Bhagwan Sri Ram Virajman & Ors vs Sri Rajendra Singh & Ors - OOS No. 5 of 1989), lord Ram was the first plaintiff (Bhagwan Sri Ram Virajman), the second plaintiff was Sthan Sri Ram Janma Bhumi, Ayodhya (the place known as Ram Janmabhoomi), and the third plaintiff was Deoki Nandan Agarwal, a retired judge who became the "next friend" of the deities in 1989. Following Agarwal's demise, the baton passed on to TP Verma and then on to Trilokinath Pandey, who was appointed the "next friend" of the deities by the Supreme Court.

KN Bhat, former Additional Solicitor-General who represented lord Ram and the Janmasthan — acting through the "next friend" Pandey, argued that a Hindu deity is a juristic person who can sue and be sued and can possess properties and that this is well established through judgements of the Privy Council and the Supreme Court; that the Janmasthan is itself a deity; and that the suit is not barred by limitation because the deity (lord Ram) is in the position of a perpetual minor. The final outcome of the case depended substantially on whether the court accepted these averments made on behalf of the plaintiffs.

Quoting from Mukherjea's Hindu Law of Religious and Charitable Trusts, the plaint said lord Ram was a "juristic entity" with a juridical status: "Its (the deity's) interests are attended to by the person who has the deity in his charge and who in law is its manager, with all the powers which would…be given to the manager of the estate of an infant heir. This doctrine…is firmly established." Such a deity, deemed to be a perpetual minor, can sue through a "next friend" appointed by the courts.

As regards lord Ram's place of birth, the contention was that Sthan Sri Ram Janmabhoomi (the place itself) was an object of worship as a deity by the devotees of lord Ram and it personified the spirit of the Divine. The Sthan (the place) was thus deified and had a juridical personality of its own even before the construction of the temple and the installation of the idol of lord Ram. According to the faith of the devotees, lord Ram resides at this place and can be experienced by those who offer prayers there. An idol is not necessary for invoking the divine spirit. Other examples of places sanctified by belief, even though there is no idol, are Kedarnath, Vaishno Devi and Gaya.

The plaint also quoted extensively from the Gazetteers to establish the fact that Hindu belief in regard to lord Ram's birthplace had been acknowledged by many authorities over several centuries. The evidence adduced on behalf of these plaintiffs included Ajudhia in Historical Sketch of Tehsil Faizabad by P Carnegy, Officiating Commissioner and Settlement Officer. Carnegy states that Janmasthan marks the place where Sri Ramchandra was born, and adds that "Ajudhia (Ayodhya) is to the Hindu, what Macca is to the Mohomedan, Jerusalem to the Jews….." These Gazetteers, written by British officers, are seen as having considerable evidentiary value.

The court upheld these contentions. It said that lord Ram and Ram Janmabhoomi, the place of his birth, were juristic persons and that the "next friend" of the deities was entitled to represent them. It said that the suit filed on behalf of the deities was not barred by limitation and that the premises in question (or any part thereof) is by tradition, belief and faith the birthplace of lord Ram. Justice Agarwal said that the area covered by the central dome of the disputed structure "being the deity of Bhagwan Ram Janamsthan and place of birth of lord Ram as per faith and belief of the Hindus, belongs to plaintiffs (Suit 5) and shall not be obstructed or interfered in any manner". Justice Sharma also concluded that lord Ram's place of birth was a juristic person and a deity and that the Archaeological Survey of India had proved that the disputed structure was built after demolition of a "massive Hindu religious structure". Justice SU Khan also opined that Hindus treated/believed that the birthplace of lord Ram is situated in that area and granted the place where at present the idol is kept in a makeshift temple.

In his judgement, Justice DV Sharma said he agreed with Bhat's argument that the deities "are like infants" and they are juristic entities and have juridical status. He said an idol is a juristic person. "It is not a property that can be shifted to another place." One of the contentions of the defendants was that the deities could not have a special status because their pran pratishtha was not done. Justice Sharma rejected this argument, saying, "They were properly worshipped for the last many decades." As regards the birthplace of lord Ram, the plaintiffs had contended that the Janmasthan is "an indestructible and immoveable deity" who has existed throughout ages. The judge rejected the Muslim claim of adverse possession and said such a claim can be made in respect of properties dedicated to a deity but not where "the property itself is the deity".

Given the eventual outcome of this long-drawn dispute, devotees of lord Ram owe a debt of gratitude to Deoki Nandan Agarwal, whose efforts from 1989, when he became the "next friend", have in many ways clinched the issue in favour of lord Ram and Ram Janmabhoomi.


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