In the last paragraph of his article, “Ayodhya and the challenge to equality” (February 7, 2019, The Hindu), Sukumar Muralidharan writes: “The BJP government has demanded that the Supreme Court unfetter a large part of the land held in trust pending final settlement of the case.” I do not know how he came to this conclusion. The truth of the case is available in the September 27, 2018 judgment of the Supreme Court, delivered by Justice Ashok Bhushan. It states: “As a consequence of the events at Ayodhya on 6.12.1992, the Central Government decided to acquire all areas in dispute in the suits pending in the Allahabad High Court.”
Disputed and undisputed land
The Narasimha Rao government’s decision is embodied in the Acquisition of Certain Area at Ayodhya Act, 1993. The area where the Babri Masjid once stood is just 0.313 acres. This Act was upheld, except for one unrelated subsection, by a Constitution Bench in 1994. The government, by the Act passed, also acquired the 67.703 acres owned by various Hindu entities, which surrounded the 0.313 acres, now called the “disputed” area. The undisputed area of 67.703 acres now largely belongs to the Ram Janmabhoomi Nyas Samiti, which is a party in the pending appeals in the Supreme Court.
The Sunni Waqf Board is the opposite party. Its suit claiming title to the disputed land (and not to the Masjid) was dismissed by the Allahabad High Court on September 30, 2010. The court held that where the central dome of the Babri Masjid stood is indeed, according to faith, the birth place of Lord Rama and belongs to him, with the Ram Janmabhoomi Nyas Samiti as trustees.
As for the undisputed 67.703 acres, the Constitution Bench in 1994 held that the Indian government, which had nationalised the land, was free to utilise it as it wished. But Rao told the court through his Solicitor General that his government would hand over the land to the Hindus if it was determined that there was a “pre-existing temple”. This was also the proposal made during Prime Minister Chandra Shekhar’s tenure when I, as Minister of Law and Justice, negotiated with Syed Shahabuddin, who was then Chairman of the Babri Masjid Action Committee. Shahabuddin also told me that if it was proved that there was a pre-existing Hindu temple, he himself would lead the demolition squad to the Babri Masjid. Had Chandra Shekhar’s government lasted longer, this is what would have happened since Rajiv Gandhi was also in favour of building a Ram temple.
In 1994, the Supreme Court directed the Allahabad High Court to verify using scientific methods whether the Babri Masjid was constructed after a pre-existing temple. The High Court asked the Archaeological Survey of India to do this. Two archaeologists, B.B. Lal and K.K. Mohammed, in 2002 deployed scientific tools and concluded that there was indeed an extensive temple complex in ruins under the site where the Babri Masjid had stood. The court accepted this finding and relied on the same in its 2010 judgment. It is this judgment that the Sunni Waqf Board has appealed against in the Supreme Court.
There is nothing to “unfetter” — there is no stay today against the government handing over 67.703 acres of land to the Ramjanmabhoomi Nyas Samiti. The 1994 judgment did not place any fetter. The fetter was “engineered” by the Atal Bihari Vajpayee government in 2002. The interim order of the Supreme Court of 2002 stayed the giving away of 67.703 acres. As Justice Ashok Bhushan noted in 2018, the interim order was superseded by a final order of the apex court stating that the stay was “operative until the disposal of the suits” in the Allahabad High Court. Hence it is no longer operative today.
Two questions remain. One, why give to the Ram Janmabhoomi Nyas Samiti the 67.703 acres and why not to the other owners who were there prior to government nationalisation? This is because, except the Samiti, all the others accepted compensation from the government after nationalisation. Two, why did the BJP go back to the Supreme Court for getting land which is now unfettered? It did so after receiving bad bureaucratic advice to play safe. We have lost an opportunity again.
Mr. Muralidharan has not only exhibited ignorance of these facts but has confused the issue with the irrelevant consideration of secularism. Only fundamental rights in the Constitution matter, not Western-borrowed concepts. The word secularism does not figure in any of the Articles of the Constitution. It was grafted during the Emergency in the Preamble, along with socialism. The two words are comatose today since nobody in the mainstream knows what they mean.
Subramanian Swamy is Member of Parliament and a former Union Law Minister