LUCKNOW, Uttar Pradesh — Zafaryab Jilani, a lawyer from Lucknow, said he was hoping for a peaceful resolution, as the country holds its breath for the Supreme Court of India to settle a property dispute which has plagued Hindus and Muslims for 70 years.
The senior advocate has represented the “Muslim side” in the Babri Masjid-Ram Janmabhoomi title suit for the past 33 years. Five judges of the Supreme Court are expected to deliver a verdict before Chief Justice Ranjan Gogoi retires on 17 November.
The Hindu side claims the land on which the Babri Masjid once stood is actually the site where Hindu god Ram was born in the temple town of Ayodhya in present-day Uttar Pradesh. The Muslim side says that a general named Mir Baqi constructed the mosque during the reign of Mughal emperor Babur in 1528 and it has been with the Sunni Muslims ever since then. The Hindu side says that Mir Baqi demolished a temple devoted to Ram in order to build the Babri Masjid. The Muslim side says there is no evidence to show a Ram Temple existed at the same spot or that it was demolished.
Hindus litigating against the 16th century mosque was never just a property dispute even when it made its way into India’s court system in 1949, but it was in the 1980s that the Congress Party and the Bharatiya Janata Party (BJP) communalized the issue. The demand to construct a Ram Temple on the spot where the Babri Masjid stood became the launch pad and mainstay of BJP’s rightwing politics. It eventually led to Hindu mobs demolishing the mosque with iron rods and sticks on 6 December, 1992. More than 2,000 people were killed in the bloodshed which came after the demolition.
Jilani was the lead counsel for the Sunni Waqf Board in the Allahabad High Court and has argued the case in the Supreme Court. Senior advocate Rajiv Dhavan’s side is the lead counsel for the “Muslim parties” in the Supreme Court.
The religious site has become a fixture in the imagination of millions of Hindus and Muslims in India. If he is at all nervous about the verdict, Jilani never let on while speaking to HuffPost India, this month. But neither did he soft-pedal is implications.
Jilani explained why he believes the Supreme Court is holding the future of India in its hands. “We are fighting for the rule of law and rule of democracy, not just for one mosque. If we surrender, no mosque will be secure in the country and no minority community will feel safe. We are not just fighting for a piece of land,” he said.
“If we surrender, no mosque will be secure in the country and no minority community will feel safe.”
When the Babri Masjid-Ramjanmabhoomi title dispute comes up, people think of Hindu mobs demolishing the mosque in 1992. But the property dispute is a much older dispute between three parties.
This dispute started in 1949 when idols were placed inside the mosque on 22-23rd December 1949. We claim the mosque to be a mosque which has been in our possession and use since 1528. Hindus claimed it after 1949 after the idols were placed. That was the first suit filed by the Hindus. Then, Nirmohi Akhara claimed that it was never a mosque and that it was always a temple and they filed a suit in 1959. Then, Bhagwan Shri Ram Lalla, through the Vishwa Hindu Parishad, filed a suit in July 1989 and they for the first time said there was a janmasthan (birth place) below the middle dome where Lord Rama was born. This theory was brought only in 1989.
The demolition of the mosque is of no legal relevance to the title suit.
No relevance at all.
One can also say the demolition is of no relevance, but has all the relevance. The country is waiting for the Supreme Court verdict because Babri Masjid was demolished in 1992.
You are right. The demolition of the Babri Masjid may have no legal relevance, but it has every relevance as a social and political issue. Property has its own relevance when it is worshipped by someone. In this case, it is worshiped by both communities. For one community, it is a place to worship Allah by way of namaaz. Another community worships it as a place of the birth of Lord Rama. Therefore both communities worship there. It is not a simple property. It is a property that one community claims to be a mosque and another community claims to be a janmasthan.
“The demolition of the Babri Masjid may have no legal relevance, but it has every relevance as a social and political issue.”
Where did the legal proceedings stand when the Babri Masjid was demolished?
The matter was in the (Allahabad) High Court. The hearing on the point of acquisition of 2.77 acres of land by the Kalyan Singh government were concluded. The hearing of the main suit was to start. The judgment in the acquisition case was pronounced on 11th December and a note was given by the judge, saying we were not expecting this and that the jinn has come out of the bottle or something like that he mentioned. With respect to the acquisition, the judge questioned the motivation, calling it anti-secular and ultra vires.
Hypothetically, say if the Supreme Court decides against the Muslim parties — the demolition of the Babri Masjid is such an overwhelming event in our minds — the verdict for many Muslims would register as a Hindu mob breaking a mosque and prevailing. But the Supreme Court could also rule for the Hindu side based on merits of the title dispute.
The Supreme Court’s decision has to be based on evidence — not aastha. The case has to be decided on the evidence of the title and possession. If it is decided only on the ground that crores of Hindus believe — this will be totally against the law of the land. Only in this context can it be said that the Supreme Court gave the land to those who demolished the mosque. Otherwise, if the Supreme Court decides on the basis of evidence… and accused of 1992 will still get punishment. That is a separate case.
“The Supreme Court’s decision has to be based on evidence — not aastha.”
As a lawyer, you can rationalise this. You are also Muslim.
The case of the Muslims is based on very strong evidence. There is hardly any difference in my comments as a lawyer and as a Muslim.
You will read the judgment and see whether it is based on the evidence. But for the vast majority of Muslims — in the hypothetical situation in which the verdict goes in favour of the Hindu side — will it not be frightening?
Muslims believe in a judicial system. Our faith is that if there is a dispute between two parties then it should be decided by a qazi, even in the days of the Prophet and the Caliphs. Today, in India, the courts are in place of a qazi. In Islam, whatever is decided by the qazi is accepted. That is why all the Muslim bodies have decided that we will contest up to the Supreme Court, then whatever the Supreme Court decides, we will respect it. This has been said for the past 15 years or more. That is why there will be no difficulty in persuading Muslims if the judgment goes against them. But we can react only after going through the judgment. Whether it is in our favour, against us, partly in our favour and partly against us.
Given the demolition of the Babri Masjid and the bloodshed that followed. Given the religious polarisation which has happened since the Modi government came to power in 2014. Will a judgment against Muslims reinforce a feeling of being betrayed and getting treated like second class citizens.
I agree this will be disheartening. People will be apprehensive. As a representative of the Muslim community, I can only say that people may feel betrayed but we will have to reassure them they are not second class citizens. It depends on the reasoning of the Supreme Court judgment.
How do you remove the politics from your mind while arguing the case?
I don’t find anything in a democracy to be apolitical. We are fighting for our constitutional rights, not for one mosque. And the Constitution of India is secular. The Constitution of India provides equality to people of all religions. The Constitution of India provides superiority to the Supreme Court and the High Court. We are fighting for the rule of law and rule of democracy, not just for one mosque. If we surrender it, no mosque will be secure in the country and no minority community will feel safe. We are not just fighting for a piece of land.
“We are fighting for our constitutional rights, not for one mosque.”
You say no mosque will be secure. You just talked about how this case needs to be decided on the basis of the evidence by all sides in a property dispute. Why the need to draw such dire inferences?
I’m telling you why we have fought. We don’t know what will be the judgment. We have given it in writing to the Supreme Court that your judgement will be for the future of India. Your judgment will be for the defence of secularism and democracy in this country.
“Your judgment will be for the defence of secularism and democracy in this country.”
But if the judges are going to decide on the basis of evidence — and say the Hindu side has made a more convincing case — why is the outcome be linked to the fate of secularism and democracy?
Without seeing the judgment how can I say whether it is based on evidence or aastha. There is nothing like the aastha of judge. Judges have no aastha. If the judges decide this case on the basis of aastha then it will not be in the interest of the country. If aastha takes the place of evidence then what will be the rule of law? Everywhere aastha will come. Tomorrow, there will be aastha of this teele vali masjid. The case is pending. Then there will be aastha about Kashi Vishwanath. Aastha is nothing which can be said to be constitutional in our mind. Aastha cannot replace equality before the law. These are very important issues that need to be decided by the Supreme Court.
“If aastha takes the place of evidence then what will be the rule of law?”
Please go on.
This country is going to be defended equally by Muslims. We never feel that we are at the mercy of Hindus. We feel that we are living in India in our own right. Our forefathers have laid down their lives for independence. We do not feel inferior to any Hindu in any way. The future depends on this judgment. The country wants a judgment that will strengthen its future not weaken it. If rule of law is threatened then the future of India will be threatened. Whatever is decided by the Supreme Court will determine whether secularism remains or not. These are all offshoots of the judgement. It is a very important judgement.
“This country is going to be defended equally by Muslims. We never feel that we are at the mercy of Hindus.”
If this is a title dispute then why the need for the Allahabad High Court to ask the Archaeological Survey of India (ASI) to examine if there was a temple under the mosque. How is it relevant?
That is true but the issue raised was whether a mosque was constructed after the demolition of a temple. The ASI did not say anything about the demolition or about a Ram Temple. It only said somethings have been found which resemble the temples of northern India.
But how is it relevant if this is a property dispute?
The need was because one side alleged there was a temple and it was demolished. The procedure of civil law is if facts are alleged by one side and denied by the other side, the issue is framed. The issue was framed whether a temple which was demolished for the construction of the mosque. Therefore evidence had to be provided on this issue.
But if this a property dispute, all the Sunni Waqf Board needs show is that the mosque was its property in 1949 when the Hindu parties went to court or say a hundred years before that. What would be a reasonable time frame? It does not have to be 1528?
That we have shown. But apart from that we have shown so many things to counter the claims from the other side. The court has to decide all the issues in one suit. If one party claims something, then the issue is framed and has to be decided along with the other issues.
The case which was filed by the Vishwa Hindu Parishad in 1989 was prepared by a very learned man i.e. Lal Narayan Sinha, who was a former Attorney General of India under the Congress regime. He asked how can we explain away 400 years of possession by Muslims. He said set up a deity and that deity was in existence prior to 1528 because a deity is supposed to be a minor under the law. His concept is deity is always a minor and so there is no law of limitation for a minor. He said that previously there was a temple of Lord Rama which was demolished by Mir Baqi in 1528 but Hindus continued their worship despite the demolition and so the deity continued.
“The future depends on this judgment.”
So the Hindu side says that Muslims never had ownership of the land.
They say that deity was the owner.
What is the kind of evidence you have presented in this case?
There were four kinds of evidence. One is religious-mythological evidence. That consists of two Ramayanas. One by Valmiki and the other is the Ramcharitmanas which was written by Goswami Tulsidas around 1560 in the regime of Akbar. No one can dispute that there was no one more devoted to Lord Ram than Goswami Tulsidas. There was no sense in believing that Goswami Tulsidas would not have complained about the demolition of any temple or pointed out the specific birthplace of Lord Ram if it was known prior to his writing. We asked witnesses whether Somnath temple is more important or the Ram Temple. They all said Ram Temple. The point is that Somnath temple is mentioned in all the books of history and no book of history mentions the Ram Temple and its demolition.
Then, there are books of history. The earliest book of history written after 1528 is the Ain-i- Akbari during the regime of Akbar. Akbar was undoubtedly a secular emperor. Nobody can say he was communal person. There are two or three chapters on Ayodhya, Rama, Krishna. But in none of the chapters is there a mention of the demolition of a temple or place of birth of Lord Rama. There is mention of the demolition of a temple in Varanasi i.e. Kashi, then why not Ayodhya. If Hindus believed that this particular spot — under the middle dome — was Rama’s birthplace, it would not have been missed by Abul Fazl (who wrote the Ain-i- Akbari).
Then, there are other historical books — William Finch in 1608 and Niccolao Manucci in 1655, which make no mention of a temple or its demolition. The only book that refers to the demolition of the temple is the travellers account of Tiefenthaler in 1786. He was a traveler from Austria who wrote about the locals saying was a temple but it was demolished by Aurangzeb. This was presented by the other side.
Did you read all these books? Are these available for the public to read? Where.
Yes and yes. In the market. The William Finch account is one of the traveller accounts collected by William Foster. The book is known by William Foster. The Tiefenthaler book is said to have been translated in English, but it was only available in French. The translation was done by the Government of India.
There is only one Muslim judge on the five-judge bench. It feels like there has to be one token Muslim judge. Should there be more?
I cannot comment on that. We believe a judge is a judge. His religion is not a part of his judgment.
Has the Congress been worse for the Babri Masjid-Ram Janmabhoomi dispute or the BJP?
The difference is that Congress itself does not get involved in defending the culprits and committing brutalities.
But the locks of the Babri Masjid were opened for Hindus to pray under the Rajiv Gandhi government?
At that time, locks were opened by the order of the court (Faizabad District Court) and that was played by Arun Nehru who was the minister of internal security, who brought Rajiv Gandhi to power, who later joined the BJP. Arun Nehru deceived Rajiv Gandhi. Rajiv Gandhi himself admitted this to us so I cannot disbelieve him.
It was still the Rajiv Gandhi government.
Of course. Yes, he admitted it. Narasimha Rao was also responsible for demolition. We have always held Congress responsible. Even in 1949, when the idols were placed, Pandit Jawaharlal Nehru said remove them but they could not do it. But the BJP decided in its 1989 session that we will fight for it. Congress never decided that it would fight. Congress has been responsible, not as a party but as individuals. The BJP has been involved as a party. That is the main difference. The BJP perpetrates it. Congress gets something done and then come out saying that it is wrong.
“Congress has been responsible, not as a party but as individuals. The BJP has been involved as a party.”
You did not seem very invested in the mediation process.
The mediation process was nothing but an attempt to get us to surrender. This has always been the practice. It was useless because we would not surrender. We will abide by the judgment of the Supreme Court. That is not surrender. That is respecting a judgment which is binding on all people. Surrender means today this mosque is surrendered and tomorrow some other land mass is surrendered. We cannot surrender. It is not our property. It is the property of god almighty according to our faith. We have no right to surrender, sell or gift it.
“The mediation process was nothing but an attempt to get us to surrender.”
Why do you think the case that was moving so slowly for so long moved so quickly in two months?
It should have and we fully agreed with it.
You don’t think the Modi government pushed for it?
I don’t think so. I think the Chief Justice (Ranjan Gogoi) himself has done it and done it correctly. Someday this case had to be decided so why not today. This was the best period. The country was not going to face a (general) election. The Chief Justice has done the right thing. He completed the hearings within 40 days. He has taken a historic step.
How does it feel to have waited so long and then for things to move so quickly?
Somebody always has to take that decision. Even in the Allahabad High Court, most of the judges used to say this case will never be decided. One person came — Justice Sudhir Agarwal. Agarwal said openly in court — look here my term is up to 2020 and I will go after deciding this case. That was his declaration. We all felt that he will be able to decide it. I really wanted this case to be decided in my lifetime. This was my desire.
“I really wanted this case to be decided in my lifetime.”
Did you feel that it would not be decided in your lifetime?
Before the Chief Justice took the decision for a final hearing, yes I did.
You have fought this case for 33 years. How will you feel if you lose?
How did I feel on the day the Babri Masjid was demolished? Very strongly.
Please go on.
I’m always ready for any consequence — whether it goes in our favour — ready, whether it goes party in our favour — ready, whether it goes against us — ready. It is our firm faith that we can only make efforts, the rest is up to god.
You are not a very emotional person.
What was the most difficult time during the decades long litigation?
Only the day of the demolition.
In terms of the case.
The most difficult day was when Dr. Rajeev Dhavan had informed the court that he would not be the lead counsel from the Muslim side — somebody else will argue it first and then he would join. He was not feeling well. This was on the 21st or 22nd of August. Then, I decided to argue it myself.
Why was that difficult. You had argued in the Supreme Court and the High Court before.
I told Dr. Dhavan that whatever you say will carry more weight because of your eminence, you performance and your past. I have not argued in the Supreme Court daily, Dr. Dhavan has been arguing constitutional matters daily. On account of that impact, I wanted him to argue. And when it came to reading evidence, placing documents, I was ready.
Of all the time you have spent on the case — arguing the entire matter before the Allahabad High Court — you say that day was the most difficult.
As far as I remember. That day I had to shoulder the responsibility in the last stage of the case before the Supreme Court.
“That day I had to shoulder the responsibility in the last stage of the case before the Supreme Court.”
This case been part of your life for 33 years. Are you relieved it is coming to an end?
I cannot say what is going to happen without knowing the verdict. If it is finished — god willing in a satisfactory manner — then I will feel relieved.
Has the Babri Masjid-Ram Janmabhoomi dispute case come to define you?
I can’t say that. Others can can say it.
How do you get along with the lawyers of the Hindu side?
Always cordial. After the arguments closed, the reception for my son’s marriage had taken place. At least three of four counsels came. Mr. Raghvendra (Singh), who is also the UP advocate general, Mr. Madan Mohan Pandey, who represents the Vishwa Hindu Parishad, Mrs. Ranjana Agnihotri, the lawyer for Shankaracharya (Swarupanand), and Mr. H.S. Jain, the lawyer for the Hindu Mahasabha. I also tell people the Muslim side was represented by Hindu lawyers. That is the greatness of the country that we want to maintain.