Source: News Bharati English10 Jan 2016 13:17:24

Re-building the Shri Ram temple in Ayodhya - The legal case

 Full text of inaugural address at the two-day seminar titled "Shri Ram Janma Bhoomi Temple: Emerging Scenario"
Dr. Subramanian Swamy, PhD (Harvard) :President, Virat Hindustan Sangam And Former Union Minister for Commerce, law & Justice; Former Professor of Economics, IIT, Delhi and also the Convenor of the Legal and Parliamentary Cells of the Hindu Dharma Acharya Sabha


Sri Aurobindo said: "All great movements of life in India have begun with the new spiritual thought and usually a new religious activity". Even Jawaharlal Nehru ultimately at the fag end of his life acknowledged this truth in his foreword to one of Dr.Karan Singh book as follows: "It is significant to note that great political mass movements in India have had spiritual background behind them".

A society based on dharma is vitally needed at this moment in our history, because there is a dimension to the current national crisis, namely, the moral decay and the decline of character in our society which if not stemmed, will slowly poison to death our nation.

This decay and decline is visible in every aspect of our life—politicians defecting for office and cash, bureaucrats taking bribes, teachers selling exam questions, students passing by cheating, businessmen adulterating products, lawyers cheating clients, doctors betraying their patients etc. To some extent such degeneration is there in every society, but the alarming aspect in India is the pace of this decay and the spread of it. Consequent to this decay is the wave of dangerous cynicism amongst the youth.

This moral decay has to be stemmed. A renaissance of values in society has to take place. How will this renaissance come about? And which leader shall be its instrument? For this, a leader shall be one who is committed to an ideology and determined to implement an agenda for renaissance?

In India, the majority is the conglomerate Hindu community which represents about 80% of the total Indian population, while minorities are constituted by Muslims [13%] and Christians [3%]. Sikhs, Jains, Parsis, and some other small religious groups, represent the remaining four percent. But Sri Rama while revered by Hindus as an avatar, the other religious groups respect his nobility and moral courage. Thus Rama is an eternal national icon for all Indians.

Thus re-building Sri Rama Temple in Ayodhya becomes a national goal. It must however be accomplished legally and with maximum consensus. This Seminar is about how it can be accomplished. The re-building of the Rama Temple is part our renaissance. It means righting a historical atrocity.

True and devout Hindus believe that Bhagvan Sri Rama was born in Ayodhya, the then capital of a flourishing kingdom of the Suryavamsa dynasty. Rama is venerated as Maryada Pumshottam, and worshipped by Hindus of the north.

As an avatar of Vishnu, while it was first propagated by the Tamil saints known as Nayanmars and Alwars who composed many hymns and songs dedicated to his divinity, the North which later came to accept Rama as one, especially thanks to the saint Tulsidas, the fervour for Rama worship is much more. In that sense, Sri Rama was the first truly national king of India, supra region, supra vama or jati. That is why poet Iqbal called him 'lmam-e-Hind’.

The exact spot of the palace 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.

In fact, Baqi was a Shia Muslim, and hence he intended it to be a place for Shias to read namaz. Today, interestingly, it is the Sunni Wakf Board, which entered the legal dispute as late as 1961, which has been litigating in the court 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 wow [water pool]. That a Ram temple existed and or that there is a sacred spot known as Ramjanmabhoomi is attested by many ancient sources and by modern scientific methods.

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.

There are many commentaries on this visit which are a part of the Sikh scriptures. Guru Nanak himself records 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 fame as the place of "Ram Chandra’s residence which in Treta age combined spiritual supremacy and Kingship" [Tranlated by Col. H.S. Jarrett and published in Kolkata in 1891].

In Chapter X of the Report of the Archaeological 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."

Hindus throughout foreign occupation of India have deeply held as sacred that exact spot where the Babri Masjid once stood, as is recorded in many official and judicial proceedings. In 1885, for example, Mahant Raghubar 035 in 3 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 thus: “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.” Since the English as policy never sought to disturb the social status quo in India as evidenced, for example, on the ‘Sati' question, the Judge took the easy way out and dismissed the Suit.

It is now 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 that Babri Masjid structure once stood. Inscriptions found during excavations describe it as a temple of Vishnu l-lari who had killed the demon king Dasanan [Ravana].

The Sunni Wakf Board does not accept these findings as of any meaning or of any consequences. It does not however matter if all this was indeed so or not, since under Section 295 of the Indian Penal Code[l PC] 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 defllement 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. Only a body of persons can identify what is sacred. The offence under Section 295 IPC is cognizable and non-bailable, as well as non-compoundable.

The fundamental question before us is thus this: 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 India’s Supreme Court.

In the famous Ismail Farooqui vs Union of India case[reported in (1994) 6 SCC 376], the Supreme Court 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 stating: " The correct position may be summarized thus: Under Mohammed law applicable in India, the title to a mosque can be lost by adverse possession...A mosque is not an essential part of the practice of the religion of lslam 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, any Government depriving the Muslims of the Babri Masjid by an order of acquisition 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]. The position in Islamic law is even clearer: in Saudi Arabia the authorities demolish mosque to lay roads and build apartment building. Even the mosque where Islam's Prophet Mohammed used to pray was demolished l But then what of a temple? is it in the same category as the mosque in our jurisprudence? When I was Union Law and Justice Minister in 1990-91, this question of the status of a temple-even if in ruins or without worship--had come up before me in a case of a smuggled-out bronze Nataraja statue which was up for auction in London.

Earlier the Government of India, when Rajiv Gandhi was PM, had 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, in Thanjavur district. A farmer named Ramamoorthi had in 1976 had accidently unearthed it while digging mud with a spade near his hut.

When the news spread, touts of an antique dealer by name Ahmed Hussein reached him and paid a small sum and smuggled it out to London, where in 1982 they sold it to Bumper Development Corporation Private Limited. In turn the said Corporation sent it to the British Museum for appraisal and possible purchase. By then the Government of India was onto it and asked the UK government to take action.

The Nataraja idol was seized by London Metropolitan Police, and thus the Bumper Development Corporation sued the Police in court for recovery but lost the case. An appeal was filed in the Queen’s Bench [i.e., our High Court level] which was dismissed on April, 17 1989. So, the Bumper Corporation went to the House of Lords [our Supreme Court level]. On February 13, 1991 when l was Law Minister, the judgment came, which is truly landmark, dismissing Bumper’s final appeal [ see (1991) 4 All ER 638].

The House of Lords upheld the Indian govemment’s position that because of the pram prothista 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 defacto 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].

Thus, even if a temple is in ruins as the ASI had found the Thanjavur temple or destroyed, as Ram Temple was in the Babri Masjid area , any Hindu can sue on behalf of Lord Rama in court for recovery I No sud": ruling exists for a mosque for the simple reason that a mosque is just a facilitation centre for reading namaz, and has no essentiality for Islam religion. it can be demolished and/or shifted as any building can and are being so today in Arab countries and Pakistan.

That is, the Ram Temple on Ram Janmabhoomi has an overriding claim to the site than any mosque. This fundamental truth in the Ayodhya dispute. This truth will apply, for example, to Kashi Vishvanath and Brindavan temple sites as well.



Therefore, what should be the road map or blueprint for our government to deliver on the BlP’s 2014 Manifesto promise? The following steps may be taken by 2016 to re-build the Ram Temple in Ayodhya and fulfil the commitment to the electorate:

(i) appoint a former Chief Justice of India, such as for Cll S.l-l. Kapadia as the Executor. The office of the Executor may liaise with a designated Minister such as General V.K. Singh.

(ii) The designated Minister may issue Notice to the Babri Masjid Muthwali who is a hereditary supervisor, and is living in India, asking him to formally agree to withdraw his claim to the Ramjanmabhoomi, and offer him an alternative site for a Masjid to be built at public expense, across the Saryu River.

(iii) Call a meeting of Islamic clerics, Indian and foreign, and seek their endorsement. The Supreme Court may then be approached for disposing off all pending SLPs and Writ Petitions.

(iv) If such an endorsement is not forthcoming then the Government should move an enabling Bill in Parliament and have it passed.

(v) Create a Ram Temple lie-Building Committee on the Somnath temple model, with Shri Ashok Singhal of Vi-iP as Chairperson.

(vi) Begin construction of the Ram Temple on an auspicious date in 2016. But in the meantime there is no need to torture and humiliate the bhaktas and devotees who come to worship at the present makeshift Ramlala Mandir. They get no basic facilities of drinking water, shoe/chappal racks, toilets and parking spaces. Yet a whopping entry fee is collected from the devotees.

The question is whether these restrictions are violative of the fundamental rights of worship under Article 25 of the Constitution, subject of course to reasonable restrictions of public order, health and morality, and also of fundamental right to hygiene [AIR 1952 SC 196 & AIR 1999 SC 92]

This Hon'ble Court [in the Farooqui case :( 1994) 6 SCC 361] had permitted worship in the makeshift temple of Ramlala, subject to maintaining the status qua in the disputed site.

But what is the scope of this direction to maintain status quo is, has also been made clear by this Hon’ble Court [(1994) 6 SCC 361 at 394], i.e., the mandate given to the Receiver in Section 7(2) of the Acquisition of Certain Areas at Ayodhya Act[1993l to ensure that status qua as of January 3, 1993 in the disputed area is maintained. The area of dispute has been defined with clarity in the aforesaid judgment in para 24 on page 395.

But in the name of maintaining the status quo, the Receiver and the UP administration have imposed the most unreasonable and arbitrary restrictions on the worship itself, tantamount to sacrilege, and causes gross inconvenience to the lakhs of devotees coming from all over India for darshan.

That whether the present restrictions are beyond this Hon'ble Court’ 5 mandate was gone into by a Special Bench of three Hon'ble judges of the Allahabad High Court on the Writ Petition No. 3067 of 1994 filed by UN. Agarwal, praying for modification of unreasonable and arbitrary restrictions on devotees placed by the Receiver on the access to, and worship of the Ramlala idol at the temple in the disputed area.

The Hon'ble High Court while allowing the Writ Petition, passed an order [vide Order dated February 23, 1996] detailing the various necessary modifications in the restrictions. This was stayed by this Hon'ble Court on a petition filed not by the Receiver, but by an interlocutor in Syed Hashmi in 1996. I have challenged this by way an Interlocutory ApplicationlIA].

The issue in this IA thus arises from this stay or injunction granted by this Hon'ble Court in 1996, and which injunction is continuing till date.

In my affidavit I have therefore prayed that the injunction on the directions of the Allahabad High Court Special Bench be vacated because the present restrictions imposed by the Receiver are arbitrary, unreasonable, oppressive and violative of Article 25 of the Constitution.

In fact even the Hon'ble High Court observed that the Receiver implicitiy admitted the same. In a nutshell, it is an admitted fact that there is a makeshift Ramlala Mandir, on the site of the Ram Chabutra which site was for centuries inside the perimeter of the now demolished Babri mosque.

This Hon’ble Court had [vide (1994) 6 SCC 361] appointed a Receiver for the disputed area but permitted the continued worship at this temple, subject to maintaining status quo as of January 3, 1993.

In the name of the status quo, the appointment receiver has imposed restrictions on the access to the temple and the mode of worship.

The Hon'ble three judge Bench of the Allahabad High Court, after hear a Writ Petition,  passed a detailed Order in February 1996 holding these restrictions as arbitrary and

Unreasonable, and directed the Receiver to implement restrictions which the Hon'ble Bench stated to be reasonable.

While the Receiver did not appeal against that Order, an intervener filed in 1996 filed a SIP and got an ad interim injunction which continues today. No proceedings thereafter till I revived the issue by way of an IA in 2009.

The question is whether the restrictions on worship and access imposed by the Receiver bear any nexus to the scope of status quo in the area of dispute, and whether these restrictions are violative of the fundamental rights of worship under Article 25 of the Constitution,subject of course to reasonable restrictions of public order, health and morality, and also of fundamental right to hygiene [AIR 1952 SC 196 & AIR 1999 SC 92].

What the scope of this direction to maintain status quc is, has also been made clear by this Hon'ble Court [(1994) 6 SCC 361 at 394], Le, the mandate given to the Receiver in Section 7(2) of the Acquisition of Certain Areas at Ayodhya Act[1993] to ensure that status quo as of January 3, 1993 in the disputed area is maintained. The area of dispute has been defined with clarity in the aforesaid judgment in para 24 on page 395.

IV- At the outset, it may usefully also be recognized that pair: to Ramlala at the disputed site has already been permitted in a restricted form by this Hon’ble Court {(1994) 6 SCC 361 at 406 para 47 and at 409 para 53}. It was held in the said judgment {para 53 at 'C’} that: "However, confining the exercise of the right of worship of the Hindu community to its reduced form within the disputed area as on 7-1-1993, lesser than that exercised till the demolition on 6-12-1992, by the freeze enacted in Section 7(2) {of Act No.33 of 1933} appears to be reasonable and just in view of the fact that miscreants who demolished the mosque are suspected to be persons professing to practice Hindu religion. The Hindu community must, therefOre, bear the cross on its chest for the misdeed of miscreants reasonably suspected to belong to their religious fold”.

This author does not challenge the vires of directing a restricted form of worship, but only the unreasonable restrictions in the name of security and status quo imposed on devotees to perform the restricted worship. At some stage, I however reserve the right, on some other appropriate occasion, to challenge the judicially delivered dictum that the Hindu oommunity’ must bear the cross" for the Babri Masjid demolition. Thereby, it is obvious that Hindus are not treated evenhandedly: it is pertinent to note that there is a reasonable primafacle presumption that the Babri Masjid itself (and indeed a large number of mosques all over India) was constructed after the original temple was demolished by Muslims.

Specifically, re: the Babri Masjid, this is a finding of a Commission of archeological experts that was set up on the directions of the Hon’ble High Court , and this forms part of the proceedings record in the main title suit in progress before the Lucknow Bench of the Hon'ble High Court. But it would be very wrong from that, to extrapolate that the Muslim community must therefore “bear the cross on its chest for the misdeed of miscreants reasonably suspected to belong to their religious fold".

Most recently this author had visited the Ram Janma Bhoomi shrine; and he had been appalled at the unnecessary hardships and indignities to which devout Hindu pilgrims are being subjected by crude police procedures, whereby devotees are denied even the performance of archakas at the temple. Full details of the harassment and denial of amenities, are in and have been commented on in the Allahabad High Court judgment.

Clearly by all objective assessments, these measures are unreasonable restrictions on the right to the permitted worship. 0n making enquiries, this author was told that these were inevitable under the status quo orders of this Hon’ble Court and that these must last while the suits thereon were heard in the Hon’ble High Court.

In the matter of Dr. M. Ismail Farooqui etc. Versus Union of India and others {(1994) 6 SCC 394}, this Hon'ble Court has held that a mosque is not an essential or integral part of lslam.

Hence, a mosque can be demolished in certain circumstance under secular law, and some other site can be used for reading namaz {para 70, 78,8: 80}.

That is not the position vis a vis a temple in which the idol has been consecrated by prana prathista puja and built according to agama shastras. The Rama idol on the chabutra (the chabutra was built within the complex during Akbar‘s regime) is one such consecrated idol.

Also notable historians have held that the temple earlier to that, of which remains are still there in the archeological records, must have been built in the days of Raja Vikramaditya of Ujjain, hence of heritage value besides being an essential part of Hindu religion.

Re—building a Sri Rama Temple legally and by consensus building amongst the vast majority of the people, will have a profound implication for Indian society. Therefore under law the Union Government can acquire the Babri Masjid site by a public notification, and urge the Muslim community to agree to shift the building of a new masjid to some other site well beyond and across the Saryu River.

It is important to note here that as of now there are eight mosques in Ayodhya area which the ASI has taken over since these had no one coming to read namaz. Hence what use will another mosque be?

Hence the national response to the judgment of Lucknow Bench of the Allahabad High Court allotting one-third of the Ramjanmabhoomi to the Sunni Wakf Board to build a mosque in the area near the  Ramlala temple should be a resounding “No” l A temple cannot be equated to a mosque in either its immutability or its divinity. The masjid in Islamic law is just a building to facilitate reading of namaz, which anyway can be read anywhere.

Nor can we Hindus by the back door allow aggression and atrocity of demolishing temples be rewarded in any manner. Therefore, as with the Shah Bano case precedent, Government should bring an amendment to the Acguig'm'on of Qgrtain Areas of Ayodhyg & of 1993 to bar constructing any structure other than those connected with a temple for Sri Rama. That will be the fit atonement of the so-called secular people of our nation for tacitly tolerating for so long the demolition of Ram Temple on the orders of Babar of Afghanistan.

Thus, if the Sri Rama Temple issue is settled legally and by such an overwhelming consensus, then it would trigger a renaissance in the Indian cultural ethos, and lead the nation to gradually but inexorably define a Virat Hindustan Identity for all Indians.

The nation would then become united as never before.