December 2014 10 December 2019

The Dispute Resolution

Dr Auriol Weigold FDI Senior Visiting Fellow

Key Points

 The commitment to a growing Hinduisation of India on the part of Prime Minister Modi’s government is illustrated in his party allegiances and his Election Manifesto programmes.

 The ownership of the site of a mosque at Ayodhya has been disputed

periodically since it was built in the sixteenth century.

 In its judgement, framed by Article 142 of the Indian Constitution, the Supreme Court found that there was extensive worship by Hindus in the then mosque’s outer courtyard, prior to the annexation of the area by the British in 1857.

 The judgement set out ‘on the balance of probabilities’ that claim was justified, but compensated Muslims with a grant of land at

Ayodhya for a new mosque to be built.

Summary

In examining the resolution of the lengthy dispute at Ayodhya in the state of , over the Hindu claim that a Ram Temple had existed on the site prior to the Moghul building of the Mosque in the sixteenth century, any analysis is governed by the right of the Indian Supreme Court to make and impose a finding backed by the authority of Article 142 of the Indian Constitution. Its finding on 9 November 2019 was not disputed by either party.

While disputes by right-wing Hindu parties and their supporters occurred from time to time over some 450 years with varying results, the ramping up of the dispute in the late 1980s that led to the unlawful demolition of the mosque in 1992 by religious “volunteers”

– kar sevaks – was the event that led to an unsuccessful law suit case in 2011 and, after months of hearings by the Supreme Court this year, culminated in a verdict in favour of the Hindu plaintiff, “Ram Lalla”, the infant form of the god Lord Ram, considered a “juristic person” in Indian law. While the arguments ‘on a preponderance of probabilities’ won the day, Muslims were granted five acres, almost double the size of the original mosque site, to build a new one.

As background to the dispute, this paper examines the BJP’s commitments to the religious right and Prime Minister Modi’s links with it across his political career. The long-disputed ownership of the site is also examined and includes the British decision in 1857 which held in place until 1949, post-Indian independence.

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Analysis

The Modi Government’s Commitment to an Increasingly Hindu India

There are many ways to commence an account of the more recent history of what became known as the Ayodhya dispute in December 1992, or the more colloquial Ram Temple issue. Another is the disturbing image published in late October this year before the Supreme Court verdict handed down on 9 November 2019, of a joyful photograph of Uttar Pradesh (BJP) MP, Sakshi Maharaj, under the heading ‘Ram temple construction will start by December 6’. His photograph epitomises the long-held philosophy of the BJP, supported by Prime Minister Modi and the , the party’s coalition partner since 1998, that a “Hindu India”, or , is their objective.

Both Ayodhya and Sakshi Maharaj’s electorate are in Uttar Pradesh (UP), in India’s north. While purely speculative, its capital, Lucknow, has Muslim memorial sites, and the Taj Mahal at , which was the second capital of Moghul Emperor, Shah Jahan, is also in UP. There have been several unsubstantiated claims in recent years that the Emperor had destroyed a Hindu temple to build his monument, claims rejected by the Archaeological Survey of India. Nonetheless, the ‘web of Hindu nationalist groups’ that support the BJP have established that ‘religious mobilisation around Mughal-era disputes’ resonates with many Hindu electors.

Along with other Hindu nationalist objectives, the BJP’s 2019 Election Manifesto stated that ‘We reiterate our stand on Ram Mandir. We will explore all possibilities … to facilitate the expeditious construction of the Ram Temple in Ayodhya’ (Cultural Heritage Section, № 01, p. 36).

Beyond the Supreme Court’s verdict and its finding in favour of the prior existence of the Ram Mandir, a question remains. What is next? Potentially discriminatory provisions cited in the 2019 Election Manifesto have already been acted on: the Assam National Register of

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Citizens, Amendments to the Citizenship Act, the Jammu and Kashmir Reorganisation Bill that repealed Articles 370 and 35(a) of the Constitution removing the region’s special status, the recent abolition of triple talaq divorce and, arguably, the starting point after Modi’s 2014 election, the build-up of “cow protection” violence.

Prime Minister Modi has a long history of involvement with organisations committed to nationalist, religious and traditionalist views of India’s future. As a child, he attended Rashtriya Swayamsevak Sangh (RSS) drill meetings and, as a young adult, became a full-time RSS activist. Before the RSS was banned, which occurred after the destruction of the mosque on the contested Ayodhya site, Modi had joined the BJP, which also advocates Hindutva. The party came to national notice in the late 1980s, when it led a movement to build a temple on the Ayodhya site, demolishing the sixteenth century mosque in December 1992, and starting religious riots that left many deaths and an unhealed division in Hindu-Muslim relations.

The BJP were briefly in power in 1996 under Prime Minister Vajpayee, but won the general election in 1998. His government collapsed again but came back to power as part of a coalition, the National Democratic Alliance (NDA) in 1999. The Congress Party, with its United Progressive Alliance (UPA), won government in 2004 and retained it until Modi led the BJP to a landslide victory in 2014 and again in 2019.

In the intervening years, Modi had pursued his own political career and was a controversial Chief Minister of Gujarat State for more than a dozen years before winning government with a popular and moderate Election Manifesto in 2014. Modi’s track record on Hindutva- oriented domestic reforms belies his business-friendly, globalised foreign policy message which can appear at odds with his established nationalistic base. ‘The RSS did not take it well … when Modi suggested that India needed to build toilets before temples’.

The question awaiting an answer is how far, if at all, has Modi moved from his base? India has seen deepening societal and communal divisions before and after independence, but the Ayodhya verdict, which awarded Muslims adjacent land while giving the disputed site to Hindus, is, arguably exceptional and perhaps indicative of future Supreme Court decisions on religious disputes.

The Ayodhya Site’s Provenance Long Disputed

The Ayodhya dispute, which stretches back over centuries, has been one of India’s ‘thorniest’ court cases. Ayodhya today is dotted with small Hindu temples and one significant site without a building. Historical accounts point out that for centuries a mosque, the Babri Masjid, stood on this site. The first emperor of Moghul India had ordered it built and it was completed in 1529. Moghul entitlement to the site had been disputed more or less forcibly over time by a nationalistic Hindu wing that claims it as the birthplace of the Hindu god, Ram.

In a brief reprise of Hindu ownership claims, clashes over the temple-mosque site were noted in the late 1850s by the British, over the period that encompassed the Indian Uprising and British Crown control of India. The clashes then were dealt with by permitting Muslims

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to worship within the mosque, which was built in the inner courtyard, while the Hindus were allowed to worship in the outer courtyard. The British ruling appears to have persisted, and has been occasionally recognised, but, some nine decades later, when India became independent, hardline Hindus were again active and, in 1949, placed idols of Ram and Sita within the mosque. Prime Minister Nehru demanded to no avail that they be removed and, after a lawsuit, the gates were locked, with the idols left inside. Out of bounds, as it remained for quarter of a century, the (VHP) again raised it as a Hindutva campaign in 1984, gathering right-wing religious vigour, the year Prime Minister Indira Gandhi was assassinated.

History fuelled legend and, as indicated, there are many accounts of the slow-moving escalation of the dispute over the centuries to the eventual destruction of the Babri Masjid on 6 December 1992 by kar sevaks. Kar sevaks volunteer their services freely for a religious cause. In a very different example from their action at Ayodhya, kar , or voluntary work, was done by Sikhs to repair the Golden Temple at Amritsar following military operations against Sikh separatists within the temple complex in 1984. In 1992, however, kar sevaks were organised by the VHP to plan to construct a Ram temple on the site. The VHP is a right- wing Hindu organisation, its beliefs based in . Still active, it has been classified by the CIA as a militant religious organisation, taking part locally in today’s cow protection issues and forced religious conversions.

Ayodhya was the destination of a rath yatra, or procession, which embarked on a 10,000- kilometre journey from the south towards Ayodhya. Organised by L.K. Advani, a BJP leader, BJP, VHP and RSS senior delegates met at the site to offer prayers and announced a kar seva, its purpose clear, but the location of the new Ram temple to be built, undisclosed. When the kar sevaks’ intention to demolish the mosque became clear, despite official protests, a large crowd gathered, accompanied by media. The India Today Magazine, issued on 31 December 1992, provided a graphic description of the demolition that, in any analysis of the force of Hindu nationalism and the threat to Indian secularism, is informative and memorable. A dramatic extract: ‘… at the dawn of that Barbaric Sunday, few among the moderates or … the large media contingent …’ expected that they would see at the end of the day ‘[a] red cloud of dust … all that remains of the myth of Hindu tolerance’. It is the now-empty site noted above.

The Ayodhya Verdict

As context, an earlier court case brought before the regional High Court in Allahabad in 2010, eventually ruled that the site, comprising 2.77 acres (1.1209 hectares), should be split into three equal parts for the then three contestants: Muslims; Hindu sadhus (holy men), who had originally claimed the site in 1959; and “Ram Lalla”, the infant form of the god, Lord Ram, considered then a ‘juristic person’ in Indian law. At less than an acre each, challenges were mounted and sustained. Taken up by the Supreme Court, hearing the claims played out over months, it found on 9 November 2019, in favour of Ram Lalla as a proxy for the right- wing Hindus, handing over the full site, but decreed that the Modi Government must allocate five acres in Ayodhya for a new mosque to be built. The decisions have been accepted.

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A former judge of the High Court of Punjab and Haryana, Justice K. Kannan, has noted that there is an ‘overarching power given only to the Supreme Court’ (Article 142 of the Constitution), that allows the power to do ‘complete justice’ in cases before it. He goes on to suggest that the power gives preference ‘to equity over law’ and is a ‘justice-oriented approach’, rather than one based on the ‘rigours of the law’. Justice Kannan argues that in the outcome there is neither ‘victor nor vanquished’. While the Muslim claim was overturned, it was compensated, but any analysis must consider the encouragement for the Hindu right wing in any further claims of this nature.

Article 142 (1) concerns the ‘Enforcement of decrees and orders of Supreme Court …’ and states that ‘The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause of matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India ….’

The lengthy judgement, drawing here on Sections 795-798 in Part P, P2 Conclusion on Title, illustrates Justice Kannan’s argument that the Supreme Court powers to preference ‘equity over law’ and a ‘justice-oriented approach’ – and leaves open the question about interpretations of equity and justice.

Brief extracts from the Sections of the judgement flagged above may raise questions about the absence of the ‘rigours of the law’. It argues firstly, in Section 795, that the law ‘provides the edifice’ on which multicultural India rests and, by determining their limits (a proviso that may lack clarity), the grounds on which ‘multiple strands of history, ideology and religion can compete’. By determining their limits ‘this Court … must preserve the sense of balance that the beliefs of one citizen does not interfere with or dominate the freedoms and beliefs of another’ (p. 920). The judgement goes on to say that under the Constitution citizens of all faiths are ‘both subject to the law and equal before the law’, that the Constitution does not make distinctions between one religion and another, and that all forms of belief are equal (p. 920). That is, all citizens are subject to the law, and all religions are equal.

In Section 796, the task before the Court is set up: ‘The dispute is over immovable property’. In deciding its title, ‘the court applies settled principles of evidence’ to judge which party has established its claim to the ‘immovable property’ (p. 921).

The judgement, as set out in the following two sections (797 and 798), states that, ‘on the balance of probabilities’, there is evidence to show that worship by Hindus in the outer courtyard (of the mosque) continued uninterrupted by the British decisions in 1857. ‘Their possession … stands established …’ (p. 921). In respect of the inner courtyard, the Supreme Court found that there is evidence ‘on a preponderance of probabilities’ to establish worship by the Hindus before the British intervened in 1857, and that ‘The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857’, nor since the date of the mosque’s construction in the mid-1500s (p. 921).

The history of the use of the courtyards is further detailed but it is noted that ‘the entire structure of the mosque was brought down in a calculated act of destroying a place of

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worship’ and that ‘Muslims have been wrongly deprived of a mosque … constructed well over 450 years ago’ (p. 922).

In what may be seen as an amelioration of its finding, the Supreme Court ruled on the allotment of another site to the Muslims, ‘necessary because … on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus stands on a better footing than the evidence adduced by the Muslims’ (p. 923).

Arguments continue over previous and subsequent pages about Muslims’ entitlement, framed around an argument that they had not abandoned their mosque, but that justice must prevail as arrived at by the Supreme Court, under the powers given in Article 142 of the Constitution, cited above.

In conclusion, while the claims and counter-arguments about original possession of the site are embedded in the Supreme Court’s judgement, the ruling that Hindus may now build a temple where the Babri Mosque stood until 1992, meets the intention expressed in the BJP’s Election Manifesto barely six months ago. The Supreme Court’s finding, however, is beyond dispute, governed as it is by the Indian Constitution. Another key step in Modi’s nationalist agenda is now within reach. Smaller steps to topple lesser Muslim monuments may proceed in the current electoral term, adding, pro tem, to a Hindu India.

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About the Author: Dr Auriol Weigold is an Adjunct Associate Professor at the School of Government and Politics, Faculty of Business, Government and Law at the University of Canberra. She has been a Fellow and Honorary Fellow at the Australian Prime Ministers Centre at Old Parliament House, Canberra, between 2010 and 2015, publishing on Australian and Indian prime ministerial relationships. In 2016, she spent a period as a Guest Scholar at the Indian Institute of Advanced Studies at Shimla. Previously, she was Convenor of the BA International Studies at the University of Canberra and an Editor of the South Asia Masala weblog, hosted by the College of Asia and the Pacific at the Australian National University. In 2008, she published her first book: Churchill, Roosevelt and India: Propaganda during World War II. Since then, she has co-edited and contributed to two further books. Her research interests include the Australia-India bilateral relationship, India’s energy and security needs, and Indo-British relations in the 1940s.

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