Teesta Setalvad


The September 30 2010 verdict in the Babri Masjid-Ramjanmabhoomi case, that began as a dispute over a title suit but escalated into a full blown politico-religious conflict— one that legitimized the criminal assault on a 450 plus year old mosque as also targeted minority life and property— has raised serious issues for the future of Indian democracy given the fact that the verdict was disproportionately based on issues of contested faith and disputed histories.


On December 6-8, 2010, a unique and well-planned three-day symposium organized in Delhi by SAHMAT, Communalism Combat and Social Scientist brought together academics, jurists and activists from different parts of the country to deliberate various aspects and fallouts of the verdict at length.


Commemorating the 18th anniversary of December 6, 1992, the symposium was jointly organized by SAHMAT, Communalism Combat and Social Scientist. Over 200 activists, lawyers, artists and academicians gathered to develop a deeper understanding of all the implications of the Ayodhya verdict. Over four dozen organizations represented by activists from Karnataka, Maharashtra, Gujarat, Madhya Pradesh and Uttar Pradesh participated in the deliberations. The assault on the Baba Boudhangiri shrine in Chikmagalur in Karnataka, the vigorous struggle against the divisive hate speech of Swami Adityanath in Gorakhpur in eastern Uttar Pradesh and other such struggles were also discussed and analyzed.


Over three days, many speakers made the point that the recent Ayodhya judgment is actually an assault on the Indian Constitution and the foundations of a secular democratic state. The Ayodhya verdict, moreover implicitly justifies the 1992 demolition of the Babri Masjid and related criminal acts and, if upheld, will have consequences for the future of democracy itself.


Systematic decimation of the basic rational principles of the rule of law laid down in the Indian Constitution, historiography, archaeology and logic are the critical features of the infamous Ayodhya verdict of September 30, said speakers Justice P.B. Sawant, Justice Hosbet Suresh, Justice SHA Raza,  Justice Rajinder Sachar, economist Professor Prabhat Patnaik, historians Professor Irfan Habib and Professor Shireen Moosvi, during the three-day symposium Faith and Fact: Democracy after the Ayodhya Verdict that concluded in Delhi today. Elucidating on the social composition of India’s judiciary as also the inability to bring to book corrupt, casteist and communal practices among Indian judges and lawyers, the discussions and analyses at the symposium also highlighted the need to draw attention to the politics within the judiciary.


Over three days of intense sessions at the symposium, the issues that were discussed included: the consistent failure of the criminal justice system, including non-investigation of the FIR registered on the vandalism of the Babri Masjid on the night of December 23, 1949; the systematic dilution of the criminal cases against the masterminds who instigated the criminal conspiracy behind the demolition of the Babri Masjid in 1992; and the motivated maligning of historians and archaeologists who testified with evidence during the pendency of the Ayodhya  dispute before the Lucknow Bench of the Allahabad High Court. All these were held to be the collective reason for the passage of a verdict that has seriously shaken the faith of the common Indian in the administration of justice.


The deliberate and conscious absence of any substantive mention of the criminal acts of 1949 and 1992 by the two majority judges while dealing with the title suit was, in the words of advocate Anupam Gupta, counsel for the Liberhans Commission for over 12 years, the singular injustice in this verdict. The judgment goes into thousands of pages over mythology and faith, but ignores the criminal incursions on the Babri Masjid under law. Even worse, the evidence presented by historians and archaeologists in court was formally recorded in monosyllabic answers to deliberately curtail and hide explanations that are critical in explaining historical theory and evidence. Today archaeologists and their publishers face contempt notices served by the Allahabad bench of the Lucknow High Court.


Inaugural Session:


Professor Prabhat Patnaik who spoke at the inaugural session outlined the keen need for institutions of democracy to justly adjudicate without being influenced by the politics of power, aggression and violence. The Judiciary especially in a seasoned democracy needed to stay aloof and distant from transparent efforts to influence courts in the deliverance of justice.


Flawed Historiography and Flawed Archaeology


Professor Irfan Habib, senior historian from the Aligarh Muslim University and world renowned expert on medieval Indian history presented a 96 page critique of Justice Agarwal’s 5,000 odd word judgement—The Judgement and the Lore of Ramjanmabhoomi–the Ayodhya judgement printed into a booklet by the Aligarh Historians Society.


Mr. Justice Sudhir Agarwal aims in his judgement to prove that the Babri Masjid was built not during the reign of Babur, in 1528, but only under Aurangzeb (died, 1707). Relying on a little known traveler Fr Joseph Tieffenthale who visited Ayodhya between 1740 and 1765 AD and quoting from him about the memory of the mosque being built over a demolished fortress called Ramcot (Tieffenthaler’s words), Justice Agarwal has rubbished the authenticity of the inscriptions over the mosque.


The Judge has interpreted the inscriptions as later forgeries made between say 1760 and 1810 despite these inscriptions having been accepted and relied upon as genuine by practically every historian and epigraphist until now, Fuhrer AS Beveridge and the Epigraphic Indica, Arabic an Persian Supplement, 1965 (an official publication of the Archeological Survey of India).


The Judge in his voluminous judgement uses harsh words to dismiss this official publication and the evidence brought in thereof on the inscriptions over the mosque entitled “Inscriptions by Emperor Babur.” Dr Z.A Desai, then Superintendent, Persian and Arabic Inscriptions, ASI and a great authority among India’s Arabic and Persian epigraphist edited this volume.


This inscription that remained in position at the entrance of the mosque until December 6, 1992 when the kar sevaks carried out their act of demolition and if it does not exist now it is owing to that criminal act. As to the significance of Tieffenthaler’s not mentioning the inscriptions, it needs stressing that in history negative inferences of this kind are hardly ever given credence. One famous example is of that other famous “intellectual giant and linguistic wizard”, Marco Polo’s failure to mention the hugely ancient Great Wall of China during his trials and subsequent writings If Applying the same logic that Justice Sudhir Agarwal has used in his argument, if one is ever asked to decide when the Great Wall was built, one should immediately say, after Marco Polo’s travels, i.e. after 1300 AD!


Justice Agarwal also here overlooks the fact that about ninety years before the Epigraphia Indica – A. & P. Supplement, 1965, both the gate and the pulpit inscriptions of the Babri Masjid had been mentioned in The Gazetteer of the Province of Oudh, edited by W.C. Benett, issued as an official publication in 1877-78, Vol.I, pp.6-7. Plate 1, Plate 2  Babri Masjid: Inscriptions and Date of Construction.


“In two places in the Babri Mosque”, it says, “the year in which it was built, 935 H., corresponding with 1528 AD, is carved in stone along with inscriptions dedicated to the glory of the Emperor.” It will be noticed that this is much older than Fuhrer’s reading of theinscriptions, but is quietly ignored in Justice Agarwal’s summary of the reports on the inscriptions (Para 1650). Benett’s statement is confirmed in H.R. Nevill’s Fyzabad District Gazetteer, with Preface dated 1905 (volume reprinted, 1920). On page 179 we are told: “The Mosque has two inscriptions, one on the outside and the other on the pulpit and bear the date 935 Hijri. Of the authenticity of the inscriptions there can be no doubt. Thus two official reports clearly say that the inscriptions on the entrance and the pulpit gave the date 935 Hijri (=1528 AD) and that they belonged to the reign of Babur. One of them goes on to attest their undoubted authenticity.


In reaching the conclusion over the allegedly later construction of the Babri Masjid, Justice Sudhir Agarwal ignores dealing with other crucial issues relating to the date of the building such as architectural design and technique of construction. In the critique presented at length by the Aligarh Historians Society what emerged was not only that a Judge of the High Cout has spent a substantive part of his 5,000 page judgement based on a narrow understanding of faith but worse has misrepresented historiography and archeology especially with relation to Indian medieval history a specific target by Hindu communal forces since the early 1900s.


The Judge’s remarks not only on Babur himself whom he views as  “a completely Islamic person”…who….” lacked tolerance to the idol worshippers” (Para 1563) is compounded by his (Judge Agarwal’s) distinctly flawed understanding of medieval Indian history as a whole which is also reflected in the judgment:


“Another surprising aspect was that the Indian subcontinent  was under the attack/ invasion by outsiders for almost a thousand or more years in the past and had been continuously looted by them. Massive wealth continuously was driven off from the Country.” (Para 1611)


This sentence suggests a rather one-sided view of the history of medieval India. Was India before the British ever governed from outside of it, from a place to which wealth could be continuously transferred? Whoever looted, whether Sultans or Rajas, lived within India and moreover the wealth stayed within.


Dr S. Ali Nadeem Rezavi’s erudite presentation on the evolution of mosque architecture over the several hundred years of Mughal rule shows a distinction in the architecture between the times of Babur and Aurangzeb. It can easily be established, by the style and technique employed in a building, whether it was built in the pre-Mughal or early Mughal times or later.


The Babri Masjid is recognizably built in the Sharqi style of architecture (seen noticeably at Jaunpur) with the characteristic form given to the propylon. The domes though large are very heavy. This style became obsolete soon after; and well before Aurangzeb’s time, light (even bulbous) domes with free standing minarets became the hall-mark of a mosque.


One of the most critical failures of the entire process of litigation undertaken over several decades by the High Court was brought out eloquently by eminent historian Dr Shireen Moosvi who pointed out how the process of recording evidence by the court, from expert historians and archaeologists had been reduced to a farce. Propositions of historiography and archeology, often rather complex, needed to be answered/explained in a couple of sentences. Yet the court by insisting that such expert witnesses testified only in monosyllabic “yes” or “no” reduced the business or process of recording expert evidence within the court to a farce.


In Indian criminal law too, each witness has a right in law to record explanations after his/her answer and the high court’s refusal to allow this basic legal process has subverted the course of justice. Two publications Archaeology After Demolition, Archaeology after Excavation authored by world renowned archaeologist D. Mandal faced contempt proceedings initiated by the very bench that delivered the Ayodhya verdict. The deliberate act of the higher judiciary in curtailing the academic thought and freedoms of independent historians and archeologists on a highly charged politico-religious conflict fomented to garner votes, albeit by using a colonial and archaic Contempt of Court’s Act was evidence if any needed of the sinister politics behind the process of justice subversion in this case.


Whereas Justice Agarwal has high praise in his judgment for the team of ASI officials set up by the BJP driven NDA regime in destroying valuable portions of the historical Babri Mosque including what survived after the demolition, the Justices have failed to go into the politics behind this excavation unleashed by a virulently communal BJP led NDA regime in which the architect of the bloody rath yatra (that has been castigated by Justice Liberhans in his report) LK Advani, a man thereafter to become India’s home minister and deputy prime minister and Murli Manohar Joshi the Minister for Human Resources Development who both played pivotal negative roles.


Far from questioning the politics behind the motivated excavations, the Judge reposes full trust in the ASI’s subsequent doctored report that has also not in full form been made available for study by experts. Professor Irfan Habib pointed out that the present government at the Centre was complicit in allowing a flawed report of the Archaeological Survey of India (ASI) to stand.


1949, 1992—Indian Systemic Response to Illegal Acts


Advocate for the Liberhans Commission for  about a dozen years, Anupam Gupta spoke passionately about the history of this litigation that had failed conspicuously to deal with the illegal actions of criminal trespass into the mosque on the night of December 23, 1949 and placement of the Ram Lalla idols within, an action that could not be reversed despite repeated written communications and directives of India’s first prime minister Jawaharlal Nehru to the SP KKK Nayyar who thereafter joined the Jan Sangh, the precursor to today’s BJP. He was strongly critical of he judgment of Justice Agarwal that could spend over 5,000 pages on the mythological aspects of Lord Ram’s birth but had no space nor concern for the criminal actions of 1949 and 1992. The FIR for criminal trespass lodged reluctantly by the SP at the time and the conduct of the District Magistrate PP Pandey who thereafter also joined in the political frenzy for demolition of the mosque has never been investigated by law enforcement agencies.


During the much publicized and widely watched kar seva of December 6, 1992 that took place in violation of undertakings made before India’s Supreme Court by then Uttar Pradesh Chief Minister Kalyan Singh, interestingly the frenzy displayed by kar sevaks under the leaderships of LK Advani, Murli Manohar Joshi and Uma Bharati – that was also celebrated by media men Chandan Mitra and Swapan Dasgupta present at the spot—did not extend to destroying the idols placed surreptitiously within in 1949. These were carefully removed and brought back four days later to the spot after the demolition was complete.


The role of then central government headed by prime minister Narasimha Rao who had deployed central paramilitary forces to the spot who stood by and watched as a mob unleashed criminal acts was also commented upon by speakers.


Journalist Manoj Mitta detailed the deliberate dilution of the criminal cases related to the demolition of the Babri Masjid in 1992 especially by the NDA regime. Of the 49 FIRs lodged at the time, 47 related to attacks on journalists. Of the other two, one related to the FIR related to criminal conspiracy and mob attack on the mosque in which LK Advani and Murli Manohar Joshi had been named as the masterminds behind the mob attack and the second related to the venomous hate speeches delivered before, during and after the act of demolition by them. During the five years of the NDA regime, the central government deliberated deleted names of the three top leaders of the BJP as master conspirators now arguing that a headless mob had performed the illegal act. The two cases are now being heard separately, deliberately weakened by partisan interference by the executive.


Interestingly, the Supreme Court has itself not pursued the contempt case against the top leadership, national and state of the Bharatiya Janata Party that consciously and shameless broke their undertakings to the apex court in the country.


A screening of Ram ke Naam with a discussion by filmmaker Anand Patwardhan brought live to the audience aspects of the narrative that had been deliberately made to vanish from the public consciousness and criminal and other proceedings in our courts. The sudden, brutal and unexplained murder of Baba Laldas in 1993 –the court appointed Mahant of the Disputed site after he had openly criticized the politics of the VHP and BJP, was one. Another was the similarly mysterious murder of an IAS officer carrying valuable documents from the Faizabad Collectorate to the Liberhans Commission in the late nineties. None of these crimes have been investigated.


Voices From Faizabad Ayodhya


Acharya Jugal Kishore Shastri and Magsassay award winner Sandeep Pandey spoke at length on the manner in which democracy dissent and syncretic worship had been stifled at Ayodhya. The murder of 17 Muslims on December 6, 1992 while the demolition was on has gone uninvestigated, as has the deliberate arson of over 300 Muslim homes and businesses while the Babri masjid was being brought down in 1992.


Politics of the Judiciary


Justices PB Sawant retired from the Supreme Court, Justice Hosbet Suresh retired from the Bombay high court and Justice SHA Raza from the High Court, Allahabad and Lucknow spoke extensively on the politics within the higher judiciary related to the Babri Masjid Ayodhya dispute as also majoritarian Hindutva politics in general and its influence over the judiciary and executive.


A panel that dealt exclusively with the implications of a spate of election petitions emerging from Maharashtra/Bombay High Court in the late 1980s elucidated how in one of these, a bench of the Supreme Court had legitimized a politico-religious movement Hindutva and deliberately confused it with Hinduism, thereby consciously or unconsciously according judicial weight to the politics of aggressive majoritarianism symbolized by the emergence of the Bharatiya Janata Party (BJP) with over 90 seats in India’s Parliament.


Election Speeches made by Shiv Sena leaders Subhash Desai, Ramesh Prabhoo and Manohar Joshi, during state assembly elections, invoking a politically aggressive Hindutva and accompanying these with derogatory statements against India’s religious minorities had been uniformly held by the Bombay high court to violated sections of the Representation of People’s Act, ie were held to be misusing religion for political ends. Unfortunately however while upholding the high court rulings in two of the cases, the Supreme Court, in Manohar Joshi’s case legitimized the election of the man who by then had become Speaker of the Lok Sabha.


Since then, in two cases, Abhiram Singh v/s CD Commachen and Ors and another, the Supreme Court, holding that these contentions made in the Hindutva Judgement (December 1995) need to be placed before a Constitution bench, five member or seven member and re assessed. However the apex court has since not found time to constitute the larger constitution benches for these cases. Advocate BA Desai from Mumbai who was instrumental in getting one of these cases referred for review before a constitutional bench attended the symposium and spoke at length on the distinction between Hindutva and Hindusim.


Teesta Setalvad, co-editor Communalism Combat presenting her conclusions in a paper Hate Speech and Indian Courts pointed out how the judiciary in general but the higher judiciary in particular had been markedly lax in developing a sound jurisprudence on hate speech. Offences under Indian criminal law related to sections 153a, 153b, 505 and 295 of the CRPC and relate to words and speech, written or oral meant to foment violence and hatred against sections of the population.


The Bombay High Court’s justification of Bal Thackeray’s ranting in Saamna in 1992-1993 at the height of the post Babri masjid violence, wherein they justified the venom used against India’s Muslims on the grounds that “the words were under anti national Muslims” was not corrected by the Indian Supreme Court (JB De Souza and Dilip Thakore v/s State of Maharashtra). Setalvad pointed out how a nationwide campaign urging the Supreme Court to review its decision to dismiss the special leave petition backed by 30,000 signatures was also ignored by the Indian Supreme Court. A campaign by citizens in May 2007 after Varun Gandhi’s venomous speeches made during the Uttar Pradesh state elections also resulted in no effective curbs on the candidate, by the Election Commission. Not only did the candidate win from Pilibhit constituency in Uttar Pradesh but neither the political class nor the executive nor the CEC nor the judiciary pursed any logical steps to ensure that he or his part paid, punitively for the hate and venom used by him during elections in 2007. Advocates Prashant Bhushan, Supreme Court , Mihir Desai, Bombay High Court and Ravi Kiran Jain, Allahabad High Court made pertinent references to the reluctance of the judiciary to intervene effectively in these matters.


A landmark judgment passed by a larger, nine member bench of the Indian Supreme Court (Justices Pandian, Ahmadi, Kuldip Singh, JS Verma, PB Sawant, K Ramaswamy, SC Agarwal, Yogeshwar Dayal and Jeevan Reddy) had in 1994 itself –in SR Bommai v/s Union of India, the case that dealt with the dismissal of the BJP governments by the Centre following the demolition of the Babri Masjid on December 6, 1992 and nationwide violence against minorities— has held secularism to be the basic and inalienable feature of the Indian Constitution. However this judicial landmark was ignored by the Hindutva judgment passed a year later in 1995.


Fallout of the Politics of Faith


Participation of vibrant panels of speakers from the states of Karnataka, Madhya Pradesh, Gujarat, Maharashtra and Uttar Pradesh gave grass root level insights into the fallout of the politics of faith since the late 1980s and early 1990s.


The serious contestation over the Baba Boudhangiri shrine in Chikmagalur district of Karnataka has been averted by a vibrant movement of the Karnataka Communal Harmony Forum since 1998 (Karnataka Komu Souharda Vedike). A decade after mass mobilizations at the district to contest the violent mobilization by the BJP and rest of the sangh parivar, the Veddike and Citizens for Justice and Peace had moved the Supreme Court against the illegal actions at the local level. Though the Supreme Court had granted a stay on these acts, subsequent moves by the government of Karnataka and the collectorate of the district where the shrine is located that amounted to contempt had not been seriously or severely commented upon by the Supreme Court.


This and other matters filed under the Places of Worship Act, 1991 have failed to evolve a robust jurisprudence with the reluctance of the higher judiciary to curb and censure criminal and illegal acts. Teesta Setalvad pointed how, in May 2003 Communalism Combat had reproduced exclusively a list of 30,000 temples listed and mentioned by both the Bharatiya Janata Party and the Vishwa Hindu Parishad (VHP) to capture, illegally seize 30,000 shrines that are currently minority or syncretic places of worship.


In Varanasi on December 29.2002 the BJP MP Vinay Katiyar who built his political career through the Bajrang Dal demanded that Muslims hand over the Kashi and Mathura Mosque to the VHP-Bajrang Dal. Thereafter on March 1, 2003, in Badohi Uttar Pradesh and again on March 10 2003 Praveen Togadia, international general secretary of the VHP repeated the threats with more potent venom. The RSS too, through its spokesman, MS Vaidya declared its full support to the VHP plan to “free” the Kashi/Mathura shrines. Renowned historian KM Shrimali elaborated how the Baba Ramdev shrine in Rajasthan has been taken over by right wing majoritarian politico-religious groups. Setalvad pointed out how the Piarana Dargah in Gujarat is in a similar way the target of communal forces.


A vibrant citizens initiative from the minority community since 2005 has managed to curtailed the hate speech of Swami Adityanath in Gorakhpur. Advocate Assad Hayat and Parvez Parvaaz spoke about their successful efforts to get the judicial order of registration of an FIR against the virulent godman who has had to rush to the Supreme Court for a stay order.


The intellectually stimulating and rich discussions over three days covered professional historiography, archaeology, activism, legal and judicial precepts and the rule of law. The real motive and intent behind the politics of the Ramjanmabhoomi movement was not for a temple in the name of Lord Ram, but to misuse the language and discourse of faith to politically mould the country academically and otherwise into a majoritarian state.

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