The Hindu : Auctioning Ayodhya

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Friday, Feb 21, 2003

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Auctioning Ayodhya

By Rajeev Dhavan

What we are faced with is a game of legal cowardice, communal complicity and breach of trust by the Union Government.

THE VAJPAYEE regime's intervention in Ayodhya constitutes a grievous breach of trust of the legal confidence reposed in the Union Government by both the Supreme Court and Parliament. Following the destruction of the Babri Masjid on December 6, 1992, an unequal status quo in favour of the Hindus was imposed on the disputed site and surrounding areas by permitting prayers at the makeshift temple constructed on the ruins of the mosque. By section 3 of the Acquisition of Certain Area at Ayodhya Act 1993, all these lands were transferred to and vested in the Union Government. Without distinguishing between the `disputed and undisputed' areas, the statute preserved the status quo on both.

But once this land was acquired, what was the Union Government to do with it? The answer to this lay in section 6, which empowered the Government to vest the land in some other authority or trust subject to such conditions which the Government might lay down. Taken to its logical conclusion, this was an awesome provision. I distinctly remember when I was arguing the Babri Masjid case in 1994, Chief Justice Venkatachaliah — then presiding over the Constitution Bench hearing the case — asked me what I thought of this massive empowerment in the Central Government to do what it liked. I replied: "If this power is taken literally, it empowers the Government to conduct a political auction to give the land to the highest political purchaser whom the Government wanted to favour". Could the Union Government convert its trusteeship over the acquired land into a political auction? The Chief Justice's response to me is now firmly in the judgment.

The position of the Union Government was that of a statutory receiver. No political auctions were countenanced. The Union as `receiver' could not play to the political gallery. As far as the disputed site was concerned, the Government had simply to wait for the decision of the legal dispute. For the rest of the area the Government's ownership was absolute. To use the Court's own words, "The status of the Central Government as a result of the vesting... is, therefore, that of a statutory receiver in relation to the disputed area, coupled with a duty to manage it and administer the disputed area maintaining status quo therein till the final outcome of adjudication of the long standing dispute relating to the disputed structure at Ayodhya. Vesting in the Central Government of the area in excess of the disputed area is, however, absolute". The words are clear. The Government's ownership of the disputed area is transitional and subject to the final determination. However, contrary to what is being argued now, the Government's ownership of undisputed area is — and I repeat — absolute.

An impression has gained ground that the undisputed area can be returned any time on the basis of the kind of political auction that the Vajpayee Government wants to be free to conduct. In actual fact, the `Hindu' owners of the undisputed areas failed in their argument that the acquisition of their lands was not necessary. Justifying the acquisition of the undisputed land that belonged to the Hindus, the Court accepted that this was "...to ensure that the final outcome of the adjudication should not be rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in the case Muslims are found entitled to the disputed site. This obviously means that in the event of the Muslims succeeding... their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed areas by exercise of rights of ownership of Hindu owners of the adjacent properties". Nothing could be clearer. The acquisition of the undisputed properties was necessary and had to wait the resolution of the legal dispute. In fact, the Court made it even clearer still that even the acquisition of the `Manas Bhawan' and the `Sita ki rasoi' was legal and proper. Any other course of action would be unfair to the trust reposed in the Union Government.

The idea that the undisputed land could somehow be released in advance of the legal dispute being resolved is a complete misnomer. In fact, the Court clearly indicated that the Hindu owners of the undisputed land could stake a claim for its return only after it had been found to be superfluous and, therefore, "unrelated to the purpose of the acquisition". That stage can only be reached once the legal dispute is resolved. On March 13-14, 2002, it was argued that a premature transfer of the undisputed `Hindu' owned lands could be made. Never was an interpretation so hopelessly misplaced. In fact, in the very sentence that was relied upon, the Court reiterated that the acquisition of these excess lands was absolute "subject to the duty to restore it to the owner if its retention is found to be unnecessary, as indicated". And, what had been indicated is clear. No land can be returned until the dispute is resolved so that the victory of either party is not thwarted by pre-emptive action.

What remains a matter for concern is not the letter and spirit of a judgment that leaves little room for mischief. On his retirement from the National Human Rights Commission (NHRC), Chief Justice Verma not only made it clear that his `Hindutva' judgment was misused but also that his Babri Masjid judgment did not permit the undisputed lands to be transferred to the Hindus prematurely. No doubt, this clarification has no authoritative value. But, at the same time, it cannot be ignored.

Both the Ayodhya Act of 1993 and the Babri Masjid judgment expect the Union Government to act in a fair and just manner. From 1994 to 2002, there was no dispute whatsoever on the meaning of the Supreme Court's verdict. It was at the Kumbh Mela at Allahabad in January 2001 that the Sants and VHP made an unequivocal threat to build by March 2002 on the site itself. As a neutral `trustee', Mr. Vajpayee's Government should simply have declared that no question arose at all of either returning any of the acquired land or building on any or all of it. Instead, the Union Government played with the issue and let it develop into a full-blown crisis in March 2002. In the hearings of March 13-14, 2002, the Attorney-General, Soli Sorabji, batted for the Government while supposedly acting as the amicus curiae of the Court in his own right. Having allowed the crisis to be created, the Union Government dragged the Court into resolving it. The Court stepped into the fray to once again impose the unequivocal status quo intended by both Parliament and the Supreme Court. A year later, the Government has allowed — even encouraged — another crisis. Now, it is acting in an even more obscure manner. It has not filed an application which states its own views. It wishes to exploit a pending case and pass on the problem once again to the Court. In its application, the Government says: "...(T)he continuing state of uncertainty is not in the public interest". But, there is no uncertainty other than that created by the Government itself, the VHP and other members of the Sangh Parivar. Nothing prevents the Government from saying that there is no uncertainty and solemnly promising to preserve the status quo.

The Government has simply caved in to its fundamentalist political support. What we are faced with is a game of legal cowardice, communal complicity and breach of trust by the Union Government. It seems to have forgotten that the trust reposed in the Union Government over Ayodhya is not a political toy to incite communalism but a sacral duty to be fair to all.

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