SUGGESTIONS TO JUSTICE J S VERMA COMMISSION

SUGGESTIONS TO JUSTICE J S VERMA COMMISSION 

SET UP BY GOVERNMENT OF INDIA 

FOR REFORMS IN "SEXUAL ASSAULT" LAWS

Following is the letter sent by me to Justice J S Verma Commission from Roys' Law Firm :

Ref No. : RLF/12-13/101/C

Date : January 04, 2013

Hon’ble Justice J. S. Verma

Hon’ble Justice J. S. Verma Commission

Respected Sir,

1.      Following are our suggestions for changes in procedural laws and certain procedures relating to the offence of “Rape” as currently defined under Section 375 / 376A-D of IPC to achieve the following objectives:

A.     To instill confidence in the victim and ensure that there is greater reporting of “Rape” cases.

B.     To reduce the ordeal of the victims who chose to report “Rape” cases to bare     minimum.

C.       To increase the rate of conviction of reported “Rape” cases.

2.       We are not expressing any views on the following aspects which too require reforms / action:

a.      Substantive Law defining the offence of “Rape” and its punishment.

b.      Sexual Offences other than Section 375 / 376A-D of IPC like Sections 354 & 509 of IPC.

c.       Crime prevention measures to reduce incidents of Sexual Harassment.

d.      Enactments to tackle Sexual Harassment at workplaces.

e.      Psychological, legal and other assistance to victims of Sexual Offences from the incident till rehabilitation.

3.            Our suggestions are under three broad heads:

I.           Medical Examination of a “Rape” Victim

II.          Registration of an offence of “Rape”

III.        Trial Procedures in a “Rape” case

MEDICAL EXAMINATION

4.            In the absence of eye-witnesses and other evidence, the Prosecution Case in “Rape”, in most cases, is solely based on Medical Examination and oral evidence of the victim.

5.            There are several biological materials left in a victim’s body by the rapist apart from the body itself being a record of the assault. Proper Medical Examination helps to capture these materials and other records provided the same is done as early as possible without the victim using the restroom, bathing, combing hair, changing clothes and so on. Medical Examination Report can become clinching evidence against the accused leading to certainty in conviction.

6.            Unfortunately in India, Medical Examination hasn’t received the importance it deserves. The provisions of Section 164A of CRPC which provides for Medical Examination is grossly inadequate and ambiguous. There is no standard protocol for such Medical Examination and preservation of samples. The use and abuse of the “two-finger test” is well known. The availability of proper facilities for such Medical Examination and their efficacy also leaves a lot to be desired.

7.            Victims in India do not readily come forward to register a complaint of “Rape” and when they do so, due to lapse of time, the Medical Examination, even if conducted at the best possible place, may prove futile. Even if a complaint is registered immediately after an assault, due to lack of awareness, the victim may use the restroom, have a bath, comb hair, change clothes etc before approaching the Police. And in some cases, the Police, out of genuine concern or otherwise, may advise the victim to relax, use the restroom, change clothes etc.

8.            To start with, the Government must evolve a standard protocol for Medical Examination and preservation of samples and give it statutory recognition. This must take care of the international best practices and must be modified from time to time. The standard protocol for Medical Examination must obviously form part of medical courses across India.

9.            Next the facility of standard Medical Examination for “Rape” must be available like emergency medical treatment in the Emergency Ward of notified hospitals in India free of cost. The Government should invest necessary funds to equip these notified hospitals with standard kits for medical examination and preservation of samples. Medical Examination should be carried out only by a lady doctor and lady attendants and nurses.

10.       Immediately after an assault and even before she makes up her mind whether to file a complaint of “Rape” with the Police, the victim should have the option of undertaking a Medical Examination on her own in the Emergency Ward of a notified hospital. Medical Examination should be the starting point. This is the most crucial aspect of our suggestions. In India, victims contemplate hard before making up their minds to file a complaint of “Rape” and often do not find anyone readily available to confide in and seek guidance. Often they are mentally devastated. The immediate family members and friends also find themselves unable to take an immediate call. However all these need not and should not delay an immediate Medical Examination.

11.       A victim who goes for a Medical Examination, should be given a computer generated number from a Centralised Nationalised Database after recording her details and scanning her finger-prints and other parameters. This computer generated number should be used for all proceedings in future which will ensure that the identity of the victim is never ever revealed even if prosecution is launched and the accused tried and convicted. This is the next crucial aspect of our suggestions. This will also instill confidence in the victim to take the tests and launch prosecution and thereby increase reporting of such cases. If the victim desires, she can keep the “Rape” attack a secret even from her own family members let alone the future husband, friends, neighbours etc, and yet the accused can be tried and convicted.

12.       A copy of the Medical Examination Report (which should contain only the computer generated number) should be given to the victim who can thereafter decide whether or not she should go ahead and file a complaint of “Rape”. If she decides to go ahead, the Medical Examination Report from a notified hospital should obviously be admissible in evidence.

13.       If the victim decides not to go ahead with a complaint of “Rape” the Medical Examination Report should never be disclosed by the hospital. The samples should be preserved for a specified period before being destroyed.

14.       The procedures for undertaking a Medical Examination along with other procedures to be followed by a “Rape” victim should be made into a Standard Manual and publicized and available in relevant websites. If possible there should be a help-line to advise victims. Victims must be encouraged to undertake a Medical Examination immediately after an assault.

15.       The victim should be allowed to be accompanied by a person of her choice, who could be a social worker or an advocate, throughout the process of Medical Examination.

REGISTRATION OF AN OFFENCE OF “RAPE”

16.       Police Stations must be equipped with sufficient lady officers, constables and volunteers to deal with a complaint of “Rape”. A specific area of a Police Station should be earmarked for dealing with a “Rape” victim. No male Police Officer should record a complaint of “Rape”.

17.       The lady officers in charge of dealing with “Rape” cases should not be given any “law and order” duties and should be sufficiently trained in investigation and prosecution.

18.       Any “Preliminary Enquiry” before lodging a FIR should be specifically prohibited. An FIR must be lodged immediately upon receipt of a complaint of “Rape” without noting down the name of the victim at that stage.

19.       Two types of victims would go to a Police Station. Firstly those who have already undertaken a Medical Examination. Secondly those who have not undertaken any Medical Examination.

20.       For those victims who have already undertaken a Medical Examination, the Police should accept the computer generated number of the hospital after proper verification and note the same in lieu of the name of the victim in the FIR. Thereafter, the Police should obtain the Medical Examination Report directly from the hospital.

21.       For those victims who have not undertaken a Medical Examination, the same must be compulsorily undertaken immediately after lodging of a FIR.

22.       Immediately upon lodging of FIR, the victim must be handed over a Standard Manual and taken for Medical Examination by lady constables or volunteers. The victim must be specifically told all the “Don’ts” before the Medical Examination like not using the restroom, not taking bath, not combing hair, not changing clothes etc.

23.       Upon Medical Examination following the Police Complaint, the computer generated number that is generated in the hospital should be used in lieu of the name of the victim in the FIR. The Police should also obtain a copy of the Medical Examination Report and give a copy thereof to the Victim.

24.       It should be open for a victim to take a Medical Examination on her own, ie without the assistance of the Police, after lodging of a FIR. The victim should hand over the computer generated number to the Police who should accept it after proper verification. Even in such cases, the Police should obtain a copy of the Medical Examination Report directly from the hospital.

25.       Under no circumstances should the name of the victim appear in any document. At every stage, the computer generated number of the hospital must be used.

26.       In the event a victim declines to undertake a Medical Examination, the fact must be recorded in prescribed form and manner before the In-charge of the Police Station. In such an event, there cannot be a computer generated number and hence the FIR should proceed with the actual name of the victim. This fact should be specifically stated in the Standard Manual and the victim made aware of this.

27.       One of the common apprehensions of a “Rape” victim which discourages her from coming forward to register a FIR is narration of the incident at multiple stages and reliving the trauma. This aspect is often misused by the Police to harass the victim at the instance of the accused. While the narration cannot be totally eliminated, the trauma can be reduced and the harassment eliminated by recording the statement only once before a lady Magistrate and treating the same as an “Affidavit in lieu of Examination in Chief” without the victim being required to go to Court for deposition.

28.       The victim should be allowed to be accompanied by a person of her choice who could be a social worker or an advocate, throughout the process of investigation.

29.       After recording of her statement, if the victim is required to attend the Police Station for further investigation, the same must be for valid reasons to be recorded in writing and must be by summons in writing. The victim may require any such summons to be served upon the person referred to in the preceding paragraph.

30.       The victim should not be confronted by the accused at any stage of investigation.

31.       The publication of the name of a victim of “Rape” or publication of the details of the crime in a manner from which the identity of the victim can be ascertained whether in media or social media or in any other forum or should be a punishable offence.

TRIAL PROCEDURES IN A “RAPE” CASE

32.       Charge-sheet in “Rape” cases should invariably be filed within 60 days.

33.       The computer generated number of the hospital should be used in lieu of the name of the victim. In fact, the name of the victim should not appear in any Court Record from the Trial Court to the Supreme Court.

34.       The victim should be allowed to be represented by an advocate at all stages from the Trial Court to the Supreme Court. All summons to her should be served upon such advocate. The advocate of the victim should be allowed to make oral and written submissions at the final hearing.

35.       As stated earlier, the statement recorded before the Magistrate after lodging of FIR should be treated as “Affidavit in lieu of Examination in Chief” without requiring the victim to depose in Court.

36.       Another common apprehension of a “Rape” victim which discourages her from coming forward to prosecute an accused is cross-examination. The same obviously cannot be avoided. However the trauma can be reduced.

37.       The cross-examination of a “Rape” victim must be invariably before a lady Court Commissioner. Apart from the public prosecutor (who to the extent possible should be a lady advocate for the purpose of cross-examination), the investigating officer, the advocate of the victim, the advocates of the accused and the accused, no one else should be permitted in the room.

38.       The Court Commissioner should ensure that the victim is not confronted by the accused at the time of cross-examination (taking care to ensure that the right of the accused to brief his advocate is not impaired). Under no circumstances, the accused should be allowed to cross-examine the victim directly. If possible, video-conferencing should be used to isolate the victim from the accused and their advocates.

39.       The cross-examination must be conducted in a time bound manner so that the victim is not inconvenienced.

40.        The trial in “Rape” cases should be concluded within six months of filing of the charge-sheet. Written permission of the Principal Judge should be sought for any extension beyond six months and written permission of the Chief Justice of the High Court should be sought for any extension beyond one year.

41.       Any interim proceedings initiated by the Accused including any under Sections 397 and 482 of the CRPC before High Court should be concluded within a period of two months.

42.       All appellate proceedings before the High Court following an order of conviction by Trial Court should be concluded within a period of six months and shall be in camera.

43.       All appellate proceedings before the Supreme Court following an order of the High Court upholding the conviction of the Trial Court should be concluded within a period of six months and shall be in camera.

44.       The publication of the details of the proceedings from the Trial court to the Supreme Court in a manner from which the identity of the victim can be ascertained whether in media or social media or in any other forum should be a punishable offence.

45.       There should be a prohibition for compounding of the offence at any stage except upon an application by the victim when she desires to marry an accused.

SUMMARY OF SUGGESTIONS

46.       In the background afore-stated, the summary of the main suggestions can be set out as follows:

I.       Standard Protocol for Medical Examination and statutory recognition thereof

II.  Widespread availability of infrastructure for Medical Examination and preservation of samples at notified hospitals

III.  Enabling independent Medical Examination by victim before FIR and admissibility of Report as evidence

IV.  Identification of victim by computer generated number of the hospital conducting Medical Examination from FIR till Supreme Court

V.       No Preliminary Enquiry before FIR

VI.     Mandatory Medical Examination after FIR if not conducted earlier

VII.  One time recording of victim statement before Magistrate post FIR and treating it as “Affidavit in lieu of Examination in Chief”

VIII.   Charge-sheet, Trial, High Court Appeal, Supreme Court Appeal and Interim Proceedings to be made time bound

IX.    Cross-examination of victim before lady Court Commissioners without being confronted by accused

X.     Total prohibition on publication of the identity of the victim and details of the crime or proceedings from which identity can be ascertained 

47.       Effective Medical Examination and improved quality of oral evidence of the victim would increase the rate of conviction in “Rape” cases.

48.       The ordeal of the victim is reduced to the bare minimum as the involvement of a victim of “Rape” from the time of the assault till the upholding of conviction by the Supreme Court is restricted to the following steps:

I.           Medical Examination

II.          Lodging of FIR

III.         Recording of Statement by Magistrate

IV.         Cross-examination

Further there is no scope for disclosure of the identity of the “Rape” victim at any step. Further the prosecution from the Trial Court to the Supreme Court would be concluded in a time-bound manner.

The above as a whole should instill confidence in “Rape” victims and increase reporting of “Rape” cases.

49.       General Suggestion: It may be worthwhile to de-link the “Sexual Assault” offences against women as may be redefined by this esteemed Commission from the IPC and codified as a separate law along with all procedures and ancillary and miscellaneous provisions in respect thereof so as to serve as a “One-Stop Law”. It may not be relevant for an effective prosecution but may just give the issue the importance it badly needs. Further such a law may be handy for educating women about their rights upon an unfortunate incident of “Rape”.

Regards,

For Roys’ Law Firm

Anirban Roy

Advocate

Along with:

Advocate Rahul Mhaskar                &        Advocate Ratnarani Roy

Anirban Roy

                                                                                                January 04, 2013

Email: anirban@royslawfirm.com

Twitter : @AnirbanFromRLF

Facebook: Anirban  FromRlf

TO UPHOLD "SECULARISM" IN INDIA - RAM MANDIR WAHI BANAO

TO UPHOLD “SECULARISM” IN INDIA

RAM MANDIR WAHI BANAO

(MAKE RAM TEMPLE AT THAT SPOT AT AYODHYA)

By Anirban Roy, Advocate

A.  Introduction

1.           Constitution of India enjoins the State to be “Secular” i.e. be impartial to all religions and not grant preferential status to any religion. Although the term “Secular”, in the sense it is used in our Constitution, cannot be extended to individuals, it is freely applied to individuals. A person who strongly talks about any religion is perceived to be “Non-Secular”. A person who either is an atheist / agnostic or doesn’t openly talk about any religion or talks sweetly about all religions or denounces any kind of religious talks as ancient / medieval is “Secular”. (I have penned down more thoughts on this aspect in my earlier blog India is “Secular”. Indians can be “Communal”.)

2.   “Ayodhya Ram Mandir Movement” (ARMM) by its very name is “Non-Secular” in the eyes of “Seculars”. It doesn’t stop at that. It is also perceived to be a futile movement to correct and avenge a perceived wrong of the medieval era. It is also perceived to be a movement to foment trouble and usurp the rights of others. And so on.

3.      After December 06, 1992, when the “Babri Masjid” (as majority of the “Seculars” call the structure in India) was pulled down, the arguments against the ARMM grew stronger. Two decades after December 06, 1992, the same arguments against the ARMM are heard and many, who think we have moved far too ahead for such unimportant issues, call for concentrating on more important and better things in life like corruption and economic development.

4.    A majority of the protagonists of the thoughts in the preceding two paragraphs and such similar thoughts have sketchy details of the ARMM or have not been able to appreciate the Movement in its proper perspective. Some obviously speak out of compulsions.

5.    I was never a protagonist of radical Hinduism or Hindutva (as radical Hinduism is erroneously called). However in the late 80s, freshly out of college, I was impressed by whatever was being said about the ARMM although I never played any direct or indirect role in support of the Movement. In the totality of circumstances, I perceived December 06, 1992 as an inevitable accident resulting from an administrative failure. The riots and loss of lives that followed were obviously traumatic and filled me with a lot of bitterness. Eventually, with other pressures of life, I gradually forgot about the ARMM.

6.   The 20^th Anniversary of December 06, 1992 on December 06, 2012 (mourned / celebrated depending upon one’s perceptions) brought back the ARMM into my focus and I re-visited some of the issues.

7.           Today, two decades later, I am more balanced and I strongly feel that we should move on. Move on and forget December 06, 1992. Move on with the ARMM and construct a Ram Mandir at that very spot where it was intended.

8.           The above would undoubtedly be an outrageous suggestion for “Seculars” and I have a lot of good friends who are “Seculars”. Some of them would even dismiss the same as an archaic thought. However let me try my luck and share my thoughts with those “Seculars” who are under no compulsion to oppose the ARMM. I wish to clarify at this stage that I am personally not a protagonist of the ARMM.

B.  Basis of the ARMM

9.           Briefly stated, following were the essential features of the ARMM:

a.       That Bhagwan Shri Ram was born at the spot or in or around the spot where the “Babri Masjid” stood.

b.           That an ancient temple of Bhagwan Shri Ram once stood at the spot where the “Babri Masjid” stood. This ancient temple of Bhagwan Shri Ram was demolished by the Moghuls in the 16^th Century.

c.            That a dome was constructed by the Moghuls over the remnants of the ancient temple of Bhagwan Shri Ram and converted into a mosque called the “Babri Masjid”.

d.           That the mosque was never a mosque as understood in the tenets of Islam. And even assuming that the structure was a mosque, it ceased to be a mosque.

e.           That since the spot where the “Babri Masjid” stood was sacred for the Hindus, the structure of “Babri Masjid” be shifted to an alternate site and a grand Ram Mandir be constructed at the spot where the “Babri Masjid” stood.

10.      Let us now briefly examine each of these aspects individually. However none of the above aspects could be viewed in isolation and had to be necessarily considered in totality to ascertain the merits of the Movement.

Birth Spot

11.     Some strongly believe that Bhagwan Shri Ram is a mythological figure who couldn’t have been born. Let alone be born at a particular spot. Accordingly, according to them, there is no merit in the contention that Bhagwan Shri Ram was born at or about the place where the “Babri Masjid” stood.

12.      However there are others in India who believe otherwise and they are equally entitled to their beliefs. They may be wrong in their beliefs (although the issue is beyond proof or determination) in which case it would be a myth but they are entitled to myths as well. Every religion, be it Hinduism, Christianity or Islam, has its myths and its followers are entitled to myths.

13.      India is a deeply religious country and it would continue to do so for a long time to come. Majority of the Indians are Hindus and Bhagwan Shri Ram occupies a prominent place in the lives of many of these Hindus. Two of the prominent festivals of Hindus namely Dussera & Diwali are related to events connected with the life of Bhagwan Shri Ram. Not too long back, we had people garlanding and worshipping their TV Sets during the telecast of the Serial Ramayana.

14.  We cannot deny the belief / myth of those who firmly believe that Bhagwan Shri Ram was born at the spot where the “Babri Masjid” stood nor can we denounce or ridicule them.

15.      However merely on the basis of their belief / myth, the protagonists of the ARMM couldn’t have demanded the construction of a Ram Mandir at the spot where the “Babri Masjid” stood. Had they claimed the “Babri Masjid” spot solely on the basis of their belief / myth that Bhagwan Shri Ram was born there, we would have probably told them “Look we respect your belief / myth but we cannot snatch away someone else’s land for your belief / myth. That would be Land Grab. Sorry”. But the Birth Spot belief / myth was just one aspect of the ARMM. It had to be combined with other aspects and couldn’t be viewed in isolation.

Ancient Temple & its Demolition

16.      Today it is an undisputed position that an ancient temple of Bhagwan Shri Ram stood at the spot where the “Babri Masjid” stood. This is not a myth but a fact. The same has been verified by independent archeological surveys and by the Judiciary. It is beyond the scope of this blog to get into the details.

17.      There are two different expert views on demolition. The first is that the ancient temple was demolished to build the “Babri Masjid”. The second is that the ancient temple was already reduced to ruins and the “Babri Masjid” was constructed over those ruins. However the prior existence of the ancient temple is not in dispute in either of the two views.

18.   The Birth Spot belief / myth when combined with the fact of prior existence of the ancient temple makes a stronger case for a Ram Mandir at the spot.

19.      Some may argue that even if it were so, making a temple at the spot would have been an attempt to correct and avenge a wrong of the medieval era. It is not so as there were other aspects.

Structure wasn’t a mosque and / or ceased to be one

20.      The pillars / foundations of the “Babri Masjid” had features which are contrary to / opposed to those found in mosques. It seemed that those were the pillars and foundations of the ancient temple giving credence to the theory that the ancient temple was demolished to construct the “Babri Masjid”. However what was more important is the fact that the structure wasn’t a mosque as per the tenets of Islam and had no significance for the Muslims.

21.      Further, as the history of events (narrated later) would show, from 1935 onwards, no prayers were ever offered in the “Babri Masjid” and accordingly, as per the tenets of Islam, the “Babri Masjid” ceased to be a mosque.

22.      Since the “Babri Masjid” was not a mosque and in any event was not being used as a mosque, it made the case for a Ram Mandir at the spot stronger. It is just that the Muslims had to be persuaded to view it in proper perspective.

Shifting of the “Babri Masjid”

23.      The ARMM did not seek a simplicitor demolition of the “Babri Masjid” since it was not a movement to avenge a wrong. It was an essential aspect of the ARMM that the existing “Babri Masjid” structure would be shifted to an alternate site.

24.      How does one shift a structure as huge as the “Babri Masjid”? It is said that technology was available for such shifting and such shifting was often done even in Arab countries.

25.      As per Muslim Law, a mosque is just an ordinary property and the sole claim to that property is that of the Mutawalla. The Mutawalla of the “Babri Masjid” stayed 10 miles away from the spot and had no objections to the shifting of the structure to a place near the place where he stayed.

26.      For those doubting the availability of the requisite technology for shifting, there was an answer. Since no prayers were being offered at the “Babri Masjid”, there couldn’t have been any emotions attached to that structure. It would have been fine even if the structure had been pulled down, most respectfully, and a new structure made at an alternate site, most respectfully.  

27.      What is most important was that the acquisition and shifting of the structure was desired to be done, not forcefully but, by appropriate legislations.

C.  Rival Positions

28.      In light of the essential features of the ARMM, the following position emerged in respect of the claims of the Hindus and the Muslims.

29.      For the Hindus, it was a claim for a spot, sacred to them based on their belief / myth about their most prominent deity, where an ancient temple of the deity once stood and which temple was pulled down to build just a structure which structure was now proposed to be respectfully and by appropriate legislations shifted to an alternate site with the consent of the person legally treated as owner of the structure. And the claim was endorsed by several Hindus across India.

30.      As far as Muslims are concerned, since a mosque to a Muslim is not the same as a temple to a Hindu, there was never an issue with Muslims across India. It was at the most an issue with the local Muslims. But even with local Muslims it ought not to have been an issue. Firstly, no prayers were offered there since 1935 and accordingly, the mosque had no significance even for the local Muslims. Secondly, no disrespect was being shown to the structure so that it could even remotely offend them. Thirdly, they would have got a new mosque to pray.

31.     Thus the Muslims had nothing to lose by the ARMM. The Hindus had lot to gain.

More importantly, it was an ideal opportunity for the Muslims to show their generosity and magnanimity towards the Hindus. Such a glorious gesture would have strengthened the bond between the two communities across India.

D.  Was the ARMM “Non-Secular”?

32.      Since the term “Secular” as applied to people, political parties, movement etc. is not well defined, I would avoid using it in relation to the ARMM but, viewed objectively, there seemed to be nothing outrageous about the ARMM. It wasn’t a movement to correct or avenge a wrong of the medieval era but a more positive movement. It wasn’t a movement to usurp someone else’s rights but an endeavor to redefine the rights in a mutually beneficial manner.

33.      I am sure, if viewed in proper perspective, most of my “Secular” friends would agree with the perception that the ARMM wasn’t a “Non-Secular” Movement. However some of them may still say “Fine, the ARMM wasn’t “Non-Secular” but it wasn’t necessary either. There were more important issues to deal with”.

E.  Was the ARMM “Necessary”?

34.   Everything in life is not about material things and religion is and will continue to be an integral part of the lives of Indians and till we reach a stage where we eschew everything religious, an issue like ARMM can never be unimportant.

35.    Further, the ARMM isn’t a movement that sprang out of nowhere in the mid 80s. It was just an organized form of a movement which started long back may be as far back as the demolition of the ancient temple and the construction of the “Babri Masjid”. This is evident from the history of events.

History of Events

36.   It is outside the scope of this blog to set out every event in history related to ARMM but some the relevant ones may be set out as follows:

a.           The demolition of the ancient temple and construction of the “Babri Masjid” is believed to have happened in the 16^th Century. There are historical accounts of several armed struggles by Hindus to reclaim the land since then.

b.           There are also historical accounts of “Pujas” and “Ram-Navami” being held in the area outside the structure. The Hindus had never given up hope for reclaiming the structure.

c.            The first legal action was possibly taken in 1885 when the Faizabad District Judge granted a status-quo in respect of the structure.

d.           Riots reportedly took place in the area around 1935 and the British Government acquired the structure. No namaaz was offered thereafter by the Muslims inside the structure.

e.           On the night of December 22 and 23, 1949, an idol of Bhagwan Shri Ram was placed inside the structure under the dome which used to remain locked. As a result of this, iron gates were constructed around the sanctum sanctorium. However “Pujas” commenced and continued to be performed in respect of the idols.

f.             In January 1950, the first two suits in respect of the structure were filed by two Hindus seeking “Puja” rights and an injunction not to remove the idols. Injunction as prayed for was granted and operates till date. Thus from 1950, the “Babri Masjid” had been a de-facto temple apart from being a mosque, if at all.

g.           In 1961, the Sunni Waqf Board filed suits to challenge the 1949 events.

h.           Despite directions by Allahabad High Courts, the aforesaid suits filed by Hindus and Sunni Waqf Board were not heard for decades.

i.              Around 1984, frustrated at the delay in resolution of the disputes, the ARMM took birth. A RamJanmabhoomi Liberation Front was formed by the Sadhus from across India to press for a solution to the nearly four decade old problem.

j.             In October 1985, the Sadhus gave a call for opening the locks of the structure by March 1986.

k.           On February 01, 1986, the District Magistrate (read Rajiv Gandhi Government at the Centre) ordered opening of the gates of the structure and further ordered that there should be no hurdle in “Darshan” and “Puja”. This single event gave sanctity to the ARMM and once again (after the injunction order in 1950 as set out above) gave endorsement and recognition to the fact that the “Babri Masjid” was a de-facto temple.

l.              Soon thereafter, the Allahabad High Court transferred to itself the suits relating to the structures pending before the Civil Courts since 1950 and began hearing thereupon.

m.         Around the same time, on November 10, 1989, with the consent of the Allahabad High Court, Shilanyas was allowed to be performed outside the structure for construction of a grand temple of Bhagwan Shri Ram as a part of the ARMM.

37.      The sequence of events set out hereinabove shows that the ARMM did not spring out of nowhere one fine morning. It had been there for decades if not for centuries. It is most unfortunate that for four long decades, a local issue couldn’t be resolved locally. It was a collective failure of Executive, Legislature and Judiciary.

38.      An issue which had been pending for four decades had to be confronted and solved. It defies all logic to even suggest that it ought to have been ignored till eternity. The ARMM pushed for solution of the four decade old problem and there was nothing wrong in this and on the contrary, this grants further legitimacy to the Movement. In fact, with the ARMM, things began to move.

39.      All that was required to resolve the issue (which was allowed to grow and become stronger over time by inaction) was quick disposal of the suits relating to the structure and / or a legislation to acquire the structure by the State and /or efforts and initiatives by the State to get the two communities together to find a mutually beneficial solution. But that was not to be on account of needless opposition and politicization.

F.  Opposition & Politics

40.    In 1986, possibly as a counter-blast to the ARMM and to oppose the same, the “Babri Masjid Action Committee” was formed by Muslim leaders across India. Muslims across India were made to believe that the “Babri Masjid” was a mosque and it would be an act of sacrilege to build a Ram Mandir at Ayodhya by demolishing it. A local issue was made national (which eventually went international). In the totality of facts and circumstances, the rationale for such an opposition is not comprehensible.

41.      In 1989, the Bharatiya Janata Party took up the ARMM as an election issue. In 1990, Shri LK Advani embarked upon a Rath Yatra from Somnath to Ayodhya to spread awareness on the issue. The Rath Yatra was stopped at Samastipur and consequently, the Bharatiya Janata Party withdrew support to V P Singh Government. The issue became the topmost issue at the national level.

42.      With opposition and politicization of the issue, rhetorics and provocative speeches started all over India and an atmosphere of hostility was created.

43.      Kar Sevaks or volunteers of the ARMM got aggressive. On October 30, 1990, the structure was partially damaged by some Kar Sevaks. On November 02, 1990, some of the Kar Sevaks were fired upon by Mulayam Singh Yadav Government of Uttar Pradesh resulting in loss of several lives. This was the first time lives were lost in the Movement.  

G.  Demolition of Babri Masjid on December 06, 1992

44.      The events leading upto the demolition of the “Babri Masjid” or rather the dome structure atop the de-facto temple on December 06, 1992 are well known. The Kar Sevaks had assembled there for a symbolic Kar Seva. However given the numbers, the frenzy, the sequence of events leading upto that and to top it all the ambivalent stand of the State and Central Government, the demolition was inevitable.   

45.     The demolition was certainly a wrongful act. Mob Violence in any form cannot be countenanced. It wasn’t / isn’t an incident which is to be celebrated in any form as “Shaurya Divas” or otherwise.

46.     At the same time the demolition wasn’t an attack on “Secularism” or the “Secular Fabric” of the nation as sought to be portrayed by the “Seculars”. There is no point shedding tears on every anniversary of December 06, 1992.

47.      More importantly, the demolition did not certainly render the entire ARMM wrong. Nor was there any merit in the case that given the demolition, the ARMM had to be disbanded and discontinued.

H.  Violence post Demolition

48.      The demolition was followed by violence by Muslims across India. The immediate anger was directed at the Police force. Subsequently the Hindus were targeted. The rationale has never been understood. The Muslims perhaps had a reason to be offended but all grievances cannot be redressed by violence.

49.      The Hindus across India obviously did not resort to violence after the demolition. It defies all logic to even suggest otherwise though some “Seculars” genuinely believe so and want the rest of us to believe.

50.      In Mumbai, the immediate disturbance began on the very next day of demolition when Muslims attacked the Police at various places. It may not be too outrageous to ask as to what wrong did the Police in Mumbai do. The violence subsided for sometime and restarted in January 1993 when several innocent Hindus were burnt alive at Radhabai Chawl, Jogeshwari. Subsequently, all Hindu shops and establishments in Muslim dominated areas were systematically targeted and vandalized. There were shows of strength by holding “Namaaz” by blocking roads. Hindu temples including “Siddhi Vinayak Temple”, one of the most prominent temples in Mumbai were threatened to be demolished. It may not be too outrageous to again ask as to what wrong did Mumbai or the Hindus living in Mumbai do.

51.      In retaliation to the violence by the Muslims, the Shiv Sena stepped in and reciprocated the same. Muslim shops and establishments across Mumbai were targeted and vandalized.  “Namaaz” was countered by “Maha Aartis”.

52.  Riots erupted. Mumbai burned. I still recall seeing innumerable fires around me from a skyscraper in Central Mumbai during those days in 1993.

53.      The Muslims were outnumbered in the riots. There was loss of life and damage to property. Many abandoned their property and left Mumbai. As a retaliation to this, there were Bomb Blasts in Mumbai in March 1993 which led to further loss of innocent lives, both Hindus and Muslims. Luckily for us, there was no violence by Shiv Sena or Hindus in retaliation to the Bomb Blasts.

54.      There were also riots and loss of lives in other parts of India after the demolition.

55.      Thus a lot of blood did flow after the demolition of December 06, 1992. There is no point discussing as to who was responsible for the loss of lives. No one was responsible and all were responsible. However, to hold the protagonists of the ARMM responsible for the flow of blood would be too far-fetched and naivety at its worst.

56.   It is equally absurd to dramatize things by saying that the Ram Temple, if built now, would be built over blood. It sounds like a dialogue straight from Bollywood. And if blood did flow at or around the site, it was of the Kar Sevaks in 1990. 

I.  Judicial & Legislative Developments post December 06, 1992

57.      Shortly before the demolition, the Uttar Pradesh Government had acquired an area of 2.77 Acres of land around the structure. The same was subsequently struck down by the Allahabad High Court.

58.      Post demolition the Central Government acquired an area of 67.7 Acres of land around the structure.

59.      On September 30, 2010, 60 years after the first suits were filed in respect of the structures, the Allahabad High Court disposed off the suits by holding that an ancient temple did exist at the spot where the “Babri Masjid” stood and that Hindus have been praying at the “Babri Masjid” for centuries along with Muslims. The High Court directed a three way division of the total area between the Hindus and Muslims. The area under the dome of the “Babri Masjid”, the main claim of the Hindus, was directed to be handed over to the Hindus.

60.      On an appeal, the Supreme Court has stayed the operation of the Order of the Allahabad High Court. The matter is still pending before the Supreme Court.

J.  Way Forward from here

61.   It has been a collective failure of the Executive, Legislature and the Judiciary that even after six decades of independence, we haven’t been able to solve a local issue and instead we have allowed it to be made a national issue and eventually an international issue. We have also failed as a society in this respect.

62.    Issues including burning issues and those issues which have actually burnt need to be confronted and resolved. Not kept in limbo till eternity nor wiped under the carpet and wished away nor passed on to the future generation to tackle it when it erupts next. It would be an act of cowardice if we do so.

63.     We seek resolution of international disputes say with Pakistan on Kashmir and with China on Border. But before that shouldn’t we solve a relatively simpler internal issue? After all, all Hindus and Muslims in India are our own people.

64.    It will be naïve to presume that the ARMM is dead or would die out. It wouldn’t. In that case, what are the options from here?

65.      The first option would be to construct a memorial there or a utility like a hospital. Nothing will be achieved by that except for adding salt to the injuries of the protagonists as well as the antagonists of the Movement. The suggestion is also extremely juvenile.

66.      The next option would be to construct a mosque at the site. If a mosque is to be constructed, why not at the alternate site which was proposed in the ARMM? It will also be imprudent to sow the seeds for another century of discord.

67.      The only option is to construct a Ram Temple at the spot as envisaged with the participation of the Muslims. The emphasis is on the second part “participation of the Muslims”.

68.    The Muslims need to change their perception. It was just a structure which came down in adverse circumstances. It certainly wasn’t pulled down to deliberately hurt the sentiments of the Muslims. If a Ram Mandir is built there with their participation, the Muslims wouldn’t lose anything but would certainly gain the goodwill of the Hindus. And a temple always existed, exists and would continue to exist at the spot even if we do nothing from now on.

69.     The Muslims have been hurt by the demolition and the violence thereafter. One cannot deny that Hindus also have been hurt by the initiation of the post demolition violence by the Muslims. But it is time for both the communities to forget the bitter past and move ahead and forge a new bond.

70.      As stated earlier, it is a golden opportunity for the Muslims to show their generosity and magnanimity and silence their critics once and for all. It is also a golden opportunity for the Muslims in India to show the rest of the world that they are different and they have a large heart.

71.      The State also has a positive role to play. If it facilitates the process of coming together of the Muslims and Hindus and the construction of a Ram Temple there, it wouldn’t be acting against the ideals of “Secularism” enshrined in the Constitution of India. On the contrary, it would be ensuring that India is “Secular” where conflicting religious grievances aren’t ignored but addressed impartially. It is pertinent to recall here what Dr. Radhakrishnan, former President of India, had to say on “Secularism”. He said that “Secularism” doesn’t mean India rejects relevance of religion or exalts irreligion. It just means religious impartiality.

72.      More importantly, by facilitating the process of construction of a Ram temple at Ayodhya, the State would only be strengthening the bond between the two communities. Working towards the unity and integrity of India would certainly not be opposed to the Constitution.

Anirban Roy

                                                                   December 11, 2012

Email: anirban@royslawfirm.com

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