RSS chief’s comment is a way of influencing the Supreme Court on Ayodhya dispute: Justice AM Ahmadi

Appointed to the Supreme Court in 1988, Justice AM Ahmadi became the 26th Chief Justice of India in October 1994 and held the post until March 1997. He was one of the five judges who heard a landmark case pertaining to the Ram Janmabhoomi-Babri Masjid dispute. It involved two significant matters that arose from the state’s action after the Babri Masjid was reduced to rubble on December 6, 1992.

Following the demolition, the central government issued an ordinance to acquire 67.7 acres of land in Ayodhya, including the 2.77 acres on which the mosque stood. When the ordinance was later turned into the Acquisition of Certain Area at Ayodhya Act, its constitutionality was challenged in what came to be known as the Ismail Faruqui case.

In addition, a Presidential Reference was made to the Supreme Court, asking for its opinion on “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid in the area on which the structure stood”.

Both these matters were heard by a five-member bench which included Ahmadi. The Presidential Reference was unanimously rejected. The Act was upheld, barring one section. But it wasn’t a unanimous decision, with Ahmadi and Justice SP Bharucha’s minority judgement declaring both the Reference and the Act unconstitutional.

Seated in his stylish study, Ahmadi flipped through a voluminous book to read the minority judgement before framing his replies as

he spoke to Scroll.in a week before the Supreme Court begins hearing the final arguments on the Ram Janmabhoomi-Babri Masjid title suit on December 5. Excerpts from the interview:

Why did the five judges unanimously reject the Presidential Reference?
All five of us were of the view that it wasn’t possible for us to find out whether a Hindu temple existed before the Babri Masjid was built. It wasn’t a reference made on a point of law. It was a reference that could only be determined on the basis of facts. Even otherwise, who was to dig up the place where the Babri Masjid stood to determine whether a temple existed prior to it?

I suppose the issue of competence would have also cropped up.
We would have had to engage archaeologists and historians like Prof Irfan Habib (laughs). Historians disagree with each other, don’t they?

I remember commentators at the time saying the Presidential Reference was biased. Their point was that the Reference should have said “a structure” instead of stating “a Hindu temple or any Hindu religious structure”.
The Reference didn’t have to say it was a Hindu structure. The minority judgement that Justice Bharucha and I delivered went into this issue. Look up Para 133. We said, “The dispute, it will be remembered, was that a Rama temple had stood on the disputed site and it was demolished to make place for the disputed structure (Babri Masjid); the question posed, however, is: Was there ‘a Hindu temple or any Hindu religious structure’ on the disputed site? Secondly, the salient fact as to whether the temple, if any, was demolished to make place for the disputed structure is not to be gone into.”

In other words, we were being asked to give an opinion on whether there existed a temple or a Hindu religious structure, not whether a Rama temple existed. However, the cause of the dispute was that a Rama temple had been demolished to build the Babri Masjid in 1528 AD. It was akin to shifting the goalpost, so to speak.

Could we say that it was on the issue of secularism that you and Justice Bharucha disagreed with others on the Acquisition of Certain Area at Ayodhya Act, popularly known as the Ayodhya Land Acquisition Act?
Secularism was one of the issues on which we differed with the majority opinion. But the acquisition of land in Ayodhya also denied Muslims the legal argument that the site of the Babri Masjid belonged to them because it had been in their adverse possession over a number of years.

It was an argument the Muslim minorities were making then. The acquisition denied them this argument as the Act vested the ownership of the 67.7 acres with the central government. The Babri Masjid is one of title dispute – that is to say who owned it.

What do you mean by adverse possession?
It is claimed that the site of the Babri Masjid is the birthplace of Lord Rama. But through centuries, the Babri Masjid had been there. The mosque’s existence was known. But no action was taken through all those years. Therefore, the Babri Masjid belonged to Muslims because it had been in their adverse possession.

Adverse possession was the argument made to rule against the claim of Muslims over the Shahidganj Gurdwara in Lahore.
This is bound to happen as we are a very old civilization. Layers upon layers of human construction stretching across centuries took place. That is why there are limits to how far back in the past you can go to claim ownership rights.

The argument of adverse possession doesn’t just apply to historical monuments. For instance, if your property is in the possession of someone else and you have kept quiet for 12 years, then you lose your right. The other person acquires it by adverse possession.

Why did you and Justice Bharucha feel the Act violated the Constitution?
Para 138 of our judgement explains why. You see, Section 7(2) of the Act said while managing the acquired property, the central government shall ensure that the position existing before the commencement of the Act in the area on which the disputed structure stood was to be maintained. We argued that before the commencement of the Act the disputed structure had been demolished, the idols had been placed on the dispute site and the puja thereof had begun. Section 7(2), thus, perpetuated the performance of puja on the dispute site.

From there we went on to say, and I cite from the minority judgement, “No account is taken of the fact that the structure thereon had been destroyed in a most reprehensible act.” In fact, we quoted from the central government’s White Paper on Ayodhya to reiterate, “The perpetrators of the deed struck not only against a place of worship but at the principles of secularism, democracy and the rule of law.”

Why did the minority judgement conclude that the Act condoned “the reprehensible act” of destroying the Babri Masjid?
After citing from the White Paper on how the Babri Masjid was destroyed, Justice Bharucha and I stated in Para 140, “When...adherents of the religion of the majority of Indian citizens make a claim upon and assail the place of worship of another religion and, by dint of numbers, create conditions that are conducive to public disorder, it is the Constitutional obligation of the State to protect that place of worship and to preserve public order, using for the purpose such means and forces of law and order as are required. It is impermissible under the provisions of the Constitution for the State to acquire that place of worship to preserve public order.”

We then concluded: “To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the Constitution.”

Both you and Justice Bharucha thought the Presidential Reference too went against secularism.
That was because both the Act and the Reference favoured one religious community and disfavoured another. Secularism is one of the important principles of the Constitution, and if you are violating it, then you are acting against the Constitution.

In hindsight, do you think the Supreme Court misread the situation in the weeks before December 6, 1992? After all, there was an application asking the court to disallow the assembly of people for performing karseva.
If (then Chief) Justice (MNR) Venkatachaliah had not allowed “symbolic karseva”, the Babri Masjid would perhaps still be standing. It wouldn’t have been demolished. Instead of injuncting against the karseva, which was what the application was for, relief was given to the opponent. Justice Venkatachaliah permitted symbolic karseva.

What did symbolic karseva mean?
Well, he did not define the term “symbolic”. That is why they took advantage of it and brought hordes of people, with implements such as crowbars, to Ayodhya and pulled down the Babri Masjid. Nobody could stop them, not even the police. Once the idol was installed on the site, the government acquired the land and maintained status quo prior to the acquisition. So the puja has continued.

Coming to the present, how do you react to Rashtriya Swayamsevak Sangh supremo Mohan Bhagwat’s recent comment that only a Ram temple will be built in Ayodhya?
It wasn’t the opportune time for Bhagwat to make the statement. When the matter is already posted for hearing, it gives a wrong impression that a message is being conveyed to the bench before it sits down to hear the matter. Bhagwat could well have avoided saying that only a temple will be built in Ayodhya.

Bhagwat forgets that the central government gave an undertaking to build both a temple and a mosque in Ayodhya. When we were hearing the challenge to the Ayodhya Land Acquisition Act and the Presidential Reference, we specifically asked for a clarification from the learned solicitor general. He gave this clarification: “The government is committed to the construction of a Ram temple and a mosque, but their actual location will be determined after the Supreme Court renders its opinion on the Presidential Reference.”

So there is a commitment from the government that both a temple and a mosque will be built in Ayodhya.

Should we see Bhagwat’s remark as a way of intimidating the bench?
I would say Bhagwat’s statement is a form of influencing the outcome of the hearing on the Ayodhya matter. Decency demands that a person should wait for the hearing, participate in it whatever his or her point of view maybe.

Does his remark constitute contempt of court?
He should have avoided making the statement. Some may view Bhagwat’s remark on Ayodhya as putting pressure on the bench which is to hear that matter. But it can’t be stretched to say his remark constitutes contempt of court. However, it is for the court to decide whether Bhgawat’s remark constitutes contempt.

When you were hearing the Ayodhya Land Acquisition Act and the Presidential Reference, did you feel under pressure?
All five of us were at ease hearing it. There was no difficulty. Though I had differences of opinion with my colleagues, I had no hesitation in penning down with Justice Bharucha the dissenting judgement.

This is the 25th year of Babri Masjid’s demolition. Now that you are long retired from the Supreme Court, what does the demolition symbolise to you?
It symbolises that the secular character of the country is affected by events such as the demolition of the Babri Masjid. India is one country which has followers of all leading religions of the world.

Hindus, Muslims, Buddhists, Sikhs, Parsis, and...
We have Jews as well. You name any religion and we have it in India. Yet all live under the umbrella of the Indian Constitution. That idea is getting fractured. It is not a happy sight to see followers of two major faiths being in perpetual conflict over a long period of time.

Could the judiciary play a role in resolving this conflict?
The judiciary can make an attempt.

Like?
The chief justice who retired earlier this year at one point in time said he was prepared to negotiate…

You obviously mean Chief Justice JS Khehar. But he backed out because there was an outcry against his offer to negotiate between the two contending parties in the Ayodhya dispute.
The other day I asked Justice Khehar about his offer. He said he hadn’t offered to negotiate. What he had said was that if anyone wanted his help to negotiate the Ayodhya dispute, he was prepared to do so; that an outcome through negotiations was possible and it could be tried.

Is that because a lot of people would think a judge is capable of taking a balanced view of things, of being impartial?
That is right.

Does the fact that Justice Khehar is neither a Hindu nor a Muslim matter?
That doesn’t matter. When a judge hears a dispute, he will go by what is placed before him.

Does a judicial verdict on disputes involving two religious communities provide a healing touch or only ends up widening the gulf between them?
I think everyone can see what it (Ayodhya dispute) has led to. In a way, it only widens the gulf. From what we have seen of the Ayodhya dispute, the rift between communities has only been widened.

Has the Allahabad High Court judgement on Ayodhya widened the gulf? (The verdict divided the disputed land into three parts, a relief the litigants had never asked for.)
Yes, it has.

I think it was Mahatma Gandhi who said that when two individuals take their dispute to court, the person who loses nurses disappointment and hurt. Does his remark apply to disputes such as that of Ayodhya?
It does. In a case involving two individuals, it is just one person who is disappointed. But here you have two vast communities involved in the dispute. Crores and crores of people are affected.

So Justice Khehar’s offer was the right way to go about things – settle the Ayodhya dispute through negotiations rather than a judicial verdict?
He was possibly thinking that a solution (out of court) was possible. I am sure he must have had something in mind. Otherwise he wouldn’t have uttered those words. But the introduction of the third person…

Who?
I think the entry of Subramanian Swamy disturbed the equilibrium and led to Khehar backing out. (Senior Bharatiya Janata Party leader Swamy filed an application asking the Supreme Court to allow “rebuilding of the Ram temple” so that he could exercise his right to worship Ram Lalla.) Any person can say his right to worship is affected. Some Muslims can get up and say their right to offer prayers is affected. It is better for politicians to stay aloof from this dispute.

Were you ever approached to help negotiate an out of court settlement to the Ayodhya dispute?
No, not when I was in the Supreme Court. But after retirement, when Atal Bihari Vajpayee was prime minister, he called me over. He said he was sure the Muslim community would listen to me. I said I didn’t know that, but considering he was saying it, I accept it might be so. Vajpayee asked me to hammer out an agreement over Ayodhya.

I asked him, “What proposals do you have in mind?” He said, “No, I don’t have proposals. But just go ahead and talk.” To which, I replied, “If I go and talk to Muslims without a proposal, I will lose all credibility. They will say I just talk in air.”

Vajpayee was a liberal. He had a situation to deal with, something he had inherited. I did tell him to think of two-three proposals and, after getting his party’s approval, to let me know. Nobody contacted me thereafter. The whole thing fell through.

Ajaz Ashraf is a journalist in Delhi. His novel, The Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid.