Why Supreme Court should maintain the status quo on Ayodhya land

The Ram Mandir-Babari Masjid land dispute is back in focus once again. With the BJP facing a strong challenge from the Opposition in the forthcoming Lok Sabha polls and most opinion surveys predicting a hung parliament, the saffron party knows that it will have to do much more than mere optics. Construction of the Ram temple has been a part of the BJP’s manifesto for long.

Having failed to deliver on its core promise so far, and being seen not doing enough to resolve the Ayodhya dispute after raising the tempo for temple in recent months, could possibly dent the party’s fortunes in the fast approaching general elections. Therefore, the timing of the government’s decision to petition the Supreme Court (SC) to release ‘excess’ or ‘superfluous’ land acquired under the Acquisition of Certain Areas of Ayodhya Act, 1993, near the disputed site needs to be seen through the prism of electoral compulsions.

The Centre filed an application before the SC on January 29, asking permission to restore the non-disputed land acquired by the government in Ayodhya to the relevant owners/occupiers: the Ram Janmabhoomi Nyas, a trust that will oversee the construction of Ram temple, which owns 42 acres of the 67.7 acres of land around the disputed temple-mosque site.

January 29 was also the day when the SC’s Constitution bench assigned to hear the main title dispute over the site was scheduled to conduct its first hearing in the matter; but the hearing had to be postponed because of unavailability of Justice S A Bobde. The delay in hearing the case has led to discontent in the RSS and its saffron affiliates. The BJP government has been facing the heat from its right-wing supporters ever since the SC refused an early hearing in the Ayodhya title dispute case last year and posted the matter for January 2019.

Since then, the case has been delayed over the constitution of the bench, the latest being the cancellation of hearing on January 29. Law Minister Ravi Shankar Prasad’s statement that the Ayodhya matter must be heard without delay is a clear pointer to the desperation in the government and simmering dissatisfaction in the BJP, which is keen on exploiting the Ayodhya issue to its advantage once again.

The Centre’s application has been filed in relation to the SC judgment of March 31, 2003, when a five-judge bench held that the status quo should be maintained with regard to the land (67.7 acres) acquired by the central government in Ayodhya, pending the final disposal of the title suit which was then before the Allahadbad High Court. The Allahabad High Court judgment, in which a three-judge bench ruled that the disputed 2.77 acres of Ayodhya land be divided into three parts, with each one-third going to Hindu Maha Sabha for the construction of Ram temple, Sunni Waqf Board and Nirmohi Akhara, was subsequently challenged in the SC.

While the legality of acquisition of 67.7 acres of land first through an ordinance and later by an act of 1993 was challenged in the SC, a Constitution bench of the apex court not only upheld the land acquisition in the Ismail Faruqui judgment of 1994 but also ruled that returning the excess/superfluous land would happen once it was decided what to do with the disputed site. Since the SC’s Ismail Faruqui judgment held that the excess/superfluous land had been acquired only to ensure that whoever succeeds in the main title dispute is not denied access to the disputed site a the title suit regarding the disputed land is still pending, the exact area needed to ensure access to the disputed site is yet to be decided.

Thus, the arguments made in the Centre’s application regarding permission to return excess/superfluous land to the relevant owners don’t stand legal test, given the fact that all subsequent orders of the apex court over the years have maintained that status quo should be maintained on all acquired land till the title dispute is decided. The SC has also clarified this as recently as in September 2018.

Maintaining status quo on Ayodhya land is important because promises have not been kept in past. Let’s cut back to 1991: immediately after coming to power in Uttar Pradesh, the BJP government under Kalyan Singh acquired 2.77 acres of land around the Babari Masjid. Soon the government reportedly started demolishing ancient structures built on the land, leaving the mosque untouched.

The demolition stopped only after the SC intervened in the matter. Subsequently newspaper reports suggested that construction work had begun in the outer compound of the premises, in direct violation of the SC orders. The work stopped only after the SC ordered suspension of all work on the site in July 1992. On October 30, 1992 the Vishwa Hindu Parishad announced that kar seva would begin next to the disputed site on December 6.

In November, the Kalyan Singh government had assured the National Integration Council that the ‘entire responsibility for the protection of the disputed structure is ours.’ By November, kar sevaks started pouring in by the thousands on the disputed site. Fearing the worst, the Narasimha Rao government moved a petition in the SC for ownership of the land to be transferred to the Centre, so that it would have the right to protect the Babari mosque. However, the BJP government in UP assured the SC that it would protect the mosque.

The court believed the Kalyan Singh government. But on December 6, 1992, the entire mosque was brought down. What followed was violence and communal riots in several parts of the country. Can the apex court trust the BJP now when the party went back on its promises to the court in 1991 and 1992? The fall of Babari mosque helped the BJP rise to power in a big way; it is once again latching on to the temple issue for the same reason.

In an interview with ANI on January 1, Prime Minister Narendra Modi had said his government would wait for the judicial outcome before deciding on the next course of action. So, what has prompted the government to change its approach? Is it the fear of losing the next elections? Two recent surveys have predicted that the BJP-led NDA could end up 35 to 40 seats short of a majority. Independent psephologists like Yogendra Yadav and others believe that there is a fair chance that the NDA could perform even worse than that.

A L I Chougule is an independent senior journalist.

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