By
Subramanian Swamy
New Indian Express
http://expressbuzz.com/edition/print.aspx?artid=212086
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, morality if the government decides to do so in the interest of public order, public health and (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).
The 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.
