This piece is based on Arun Jaitley's speech during the debate in Rajya Sabha on Dec 9, 2009 ::
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The ability of Indian society at dispute settlement (on Ayodhya structure) is at stake. The judicial institutions have been unable to decide the issue for decades. The ideal dispute resolution is through negotiations.
"A fair secular society requires equality of all. A secular order is not irreligious.
It is not anti-religion. It is respect for all religions. Protection of legitimate rights of the minorities is unquestionably a test of a secular society.
At the same time the majority cannot live for centuries with a feeling of reverse discrimination. The history of the past 500 years has shown that the majority has been denied its right to build a historical temple at its most revered place. The Home Minister (P Chidambaram) has framed the wrong question that it is a choice between inclusiveness and divisiveness.
Does your inclusiveness exclude the religious aspiration of the majority for the sake of vote bank politics.
We reject your ‘Vote bank inclusiveness’ as we reject the LIberhan report. We stand for “Justice for all, with neither discrimination nor reverse discrimination”.
Malafide error relating to Shri Atal Behari Vajpayee
The Liberhan Commission was more loyal than the king. The Commission has committed a fundamental error in relation to its finding with regard to Shri Atal Bihari Vajpayee.
Little did the Commission realize that Shri Vajpayee is a tall national leader of proven credibility.
The Commission of Inquiry Act in section 8B clearly mentions that if the Commission is of the opinion that the conduct of a person is required to be inquired into or that his reputation is likely to be affected, the Commission shall give to that person a reasonable opportunity of being heard.
The Commission on page 958 gives a list of persons including Shri Vajpayee and Shri Devrah Baba who are culpable for creating communal discord. There are at least 30 people out of 68 to whom admittedly no notice was given under section 8B.
While the Commission on page 942 states that leaders like LK Advani, Shri A.B. Vajpayee and Shri Murli Manohar Joshi would have known the designs of the Sangh parivar, they are pseudo moderates. Obviously in trying to indict Mr. Vajpayee the Commission went for an overkill little realizing that Mr. Vajpayee had a high credibility.
In that process the Commission shot itself in the foot and hurt its own credibility. Was it any part of the Commission’s job to find a political response to the BJP’s use of Phrase ‘pseudo Secular’? It is not only in Shri Vajpayee’s case, the commission has chosen to indict several leaders including many of the Muslim community without issuing a Section 8B notice to them. The report in so far as it hurts reputation of people without a Section 8B Notice is non-est.
On the Role of Central Govt :
The Commission was obviously kind to its appointing authority.
The burden of its argument is that since the central government did not receive a report from the Governor whose judgement was badly flawed, the Central government was helpless in the matter of invoking Article 356. The Commission did not issue a notice to the Governor.
It indicts the Governor but without a notice under section 8B. Shri PV Narasimha Rao authored a book titled ‘Ayodhya 6th December, 1992.’ The book has been published after his demise.
At page 170 of the book, Shri Narasimha Rao reproduced the letter/report of the Governor wherein he categorically stated that ‘the possibility of demolition of the structure could not be ruled out.’ Obviously, the Commission wanted to be more charitable to his appointing authority, Shri Narasimha Rao.
He even concealed the existence of a report. Even otherwise the argument of the Commission that the existence of a report was a condition precedent for invoking Article 356 by the Central Government is specious. The Commission completely ignored the words “or otherwise” in Article 356.
Strictures against Constitutional authorities
The Judge presiding over Commission is a bitter man. He was extremely keen to be elevated to the Supreme Court. Despite his keenness, members of the Supreme Court collegium did not consider it appropriate to recommend his name. This was his last opportunity to get back at the Supreme Court.
He departs from the principle of inter institutional courtesy and indicts the Governor of UP, High Court of UP, an observer of Supreme Court and even the Supreme Court itself. At page 935 the Commission opines --
“For instance, the intransigent stance of the High Court of Uttar Pradesh, the obdurate attitude of the Governor, the inexplicable irresponsibility of the Supreme Court’s observer and the short-sightedness of the Supreme Court itself are fascinating and complex stories, the depths of which I must not plumb.”
The Commission is unaware of the basic courtesies and constitutional restraints imposed upon senior constitutional functionaries. The Commission ignores the requirement of section 8B and decides to indict superior constitutional authorities even without a notice.
Who were present on 6th December, 1992 ?
The Commission records the presence of every person in Ayodhya on 6.12.1992 (page 743). Prominent amongst those the Commission names who were admittedly not present. Balasaheb Thakre who was in Mumbai, Kalyan Singh, Chief Minister, UP who was in Lucnow, Rajinder Gupta, Uma Nath Singh,Lalji Tandon, Brahm Dutt Dwivedi ministers in UP Govt. who were in Lucknow, Kusha bhau Thakre, S.S. Bhandari, Sikander Bakht who were in Delhi and Shri Prabhat Kumar Chief Secretary UP who was in Lucknow.
Where did the Commission get all this erroneous facts from. The Commission never bagged this factual narration and conclusions on any evidence but got it from some extraneous source.
How the Commission and the Government procured evidence ?
There is a Central government witness – a journalist named Raman Kirpal. He had purportedly deposed before the Commission and the Commission has relied on his affidavit and evidence. In 29 November, 2009 issue of the weekly magazine ‘OPEN’ Raman Kirpal has written an article titled “My Crippled Testimony”. Shri KIrpal’s article amongst others states “ The CBI officials gave me a date for deposition in New Delhi. I reached there right on time. They showed me an affidavit and asked me to sign……… During the cross examination I was asked to reply in “Yes’ or ‘no’.
The format was so tight you could not explain anything. For instance, I was asked whether BJP ‘s LK Advani gave any speech at the dias asking the Kar Sewaks to demolish. I said ‘no’ but………. The lawyer interrogating me immediately shut me up… just reply in ‘yes’ or ‘no’ he said………… The tight format of the cross examination and my status as CGW 24 undermined several things which should have put the Central government of PV Narasimha Rao in a spot….. What surprises me that the Commission rescues the Central Government in its conclusions it says “The Central Government was crippled by the failure of intelligence agencies to provide an analysis of the situation. …..
This is my truth as a reporter. My affidavit as CGW 24 still stands but it is a crippled truth. There was much more that I could have wanted to say……..”.
Did this Commission function as a Kangaroo court?
Recommendations of the Commission on subjects beyond its jurisdiction.
(a) The Commission has recommended (page 966) that “the next logical conclusion must therefore be that the government which is formed on the premise of religion or has religion on its agenda can be barred.” This is not constitutionally permissible. This is a new jurisprudence espoused by the Commission. How can a government be barred?
(b) The Commission has recommended that there must be a body constituted to look into the working of the Constitution. Perhaps the Commission was blissfully unaware of the fact that the Committee headed by Justice Venkatchaliah has already given a detailed report to the Government. The Commission at page 970 recommends a review of the Recruitment policy of the government into the civil service. He wants merit alone to be the criteria and not a caste or regional basis. Read in the context of the Commission’s earlier recommendation on Mandal Commission it is clear that the Commission suffers from caste bias. The Commission has recommended (page 971) that civil servants should be barred from holding office of profit after retirement. It is indeed a paradoxical recommendation from a judge who retired long ago and has enjoyed 48 extensions recommends no retired civil servant should be given any post retirement assignment. The Commission has gone into the question of Centre State relations (page 976) AND RECOMMENDED THAT NO State government can claim that it acts only for the persons or people within the boundary of the State and discriminate against others.
While not disagreeing with the Commission on this, the question was not within the jurisdiction of the Commission.
Was he dealing with Ayodhya incident or going into larger issue - the question of Centre State relation.
Similarly the Commission recommends (page 976) party affiliations must come to an end the moment a legislator is elected.
The Commission now wants the Tenth Schedule of the Constitution prohibiting defections to be repealed. Was this within the terms of reference of the Commission?
(c) The Commission obviously dislikes the media. (page 980 ). The Commission recommends that there must be a permanent authority to hear complaints against “mischievous journalists”. He wants a licensing regime back not in the industry but for joining the profession of journalism.
(d) The Commission at page 979 states as under:-
“It is therefore my recommendation that a statutory national commission be composed of acknowledged experts to delve into the questions of the provenance of historical monuments, artifacts etc. and their determination should be deemed to be definitive and final.”
The word provenance means -- “the history of the ownership of the object specially when demanded or authenticated”.
The Oxford dictionary of difficult words defines provenance as a place of origin or the earliest known history of something. Let this test recommended by Justice Liberhan be applied to the disputed structure at Ayodhya where already a report of the ASI exists indicating the existence of a temple before 1528. The Government in its ATR has rightly said in para 6.6 that a special Commission is not required for the said purpose as the ASI is already undertaking this mandate. The Allahabad High Court had asked the ASI to examine the site and the recovered stones from the erstwhile structure and submit to the High Court its expert opinion. The ASI in the year 2003 submitted its report to the Allahabad High Court where it concludes on basis of entire evidence.
“Now viewing in totality and taking into account the archaeological evidence of a massive structure just below he disputed structure and evidence of continuity in structural phases from the tenth century onwards upto the construction of the disputed structure along with the yield of stone and decorated bricks as well as mutilated sculpture of divine couple and carved architectural members including foliage patterns, amalaka, kapotapali doorjamb with semi-circular pilaster, broken octagonal shaft of black schist pillar, lotus moif, circular shrine having pranala (waterchute) in the north fifty pillar bases in association of the huge structure, are indicative of remains which are distinctive features found associated with the temples of north India.”
This report was preceded by a Ground penetrating Radar Survey (GPRS) which also came to same conclusions.
Did a temple exist at the site prior to 1528 ?
The Commission has categorically given an opinion that Ayodhya is perceived as the birth place of Lord Rama and that Mir Baqi constructed a mosque at the disputed site in 1528. The crucial question is what is the historical character of the site in question. Admittedly, the site has great religious and cultural significance to our civilization and nation. Overwhelming evidence exists about the existence of a temple at the birth place of Lord Rama at Ayodhya. This evidence is in the form of archaeological evidence, GPRS evidence and accounts of various travelers who contemporaneously wrote their accounts.
………. The universally revered Sikh Guru, Guru Nanak Dev visited Ayodhya along with his associate ‘Mardana’. Contemporaneous Sikh literature finds a reference to the Guru’s communication to Mardana. Bhai Bala wali janam Sakhi also has a detailed reference to this visit. The visit took place between 1508 and 1510. The eighth successor of Guru Nanak Dev’s eldest son Lakhmi Chand Ji Baba Sukhi Ram Bedi in his works has referred to Guru Nanak Dev’s darshan of Ram Janamasthan.
The historical sketch of the Fayabad in Zila Fayabad refers to the existence of the Janamasthan at Ayodhya. It categorically records that at the janamasthan Emperor Babar built a mosque in 1528.
The Earlier Travels in India written by William Foster refers to Ayodhya where the ruins of Ram Chander acknowledged as an Indian God were found.
The Gazetteer of Awadh refers to the Janamasthan as the place where Ram Chander was born.
The Geography of Hindustan written by Father Jose Tieffn-Thacer Is still available in French. A copy of it was obtained from France and got translated into English under directions of the Court. The said travel refers to Ayodhya where a temple had been constructed on elevated bank of the river. It then refers to a debate as to whether it was demolished and converted into a mosque by Aurangzeb and then corrected to say that others believed that it was actually constructed by Babar.
There have been several struggles in the past 500 years for the restoration of the Janamasthan. The existence of a mosque built after desecration of the temple has never been accepted by the Hindus. The past 500 years have witnessed repeated struggles for rights of the Hindus at the Janamasthan.
In the later part of the 19th century the Nihangs had occupied the structure for a reasonable long period on the premise that Guru Nanak Dev had performed his worship at the site.
In 1934 the Hindus were fined by the British Government for some damage caused to the structure during an agitation. There are judicial orders dating back to 1885 in relation to the legal and judicial dispute.
The principal question is – What was the original character of this structure? Unquestionably, the original character was a temple.
It was no ordinary temple.
It was a temple built at the place believed to be the Janamasthan of Lord Ram.
No religious denomination can ever accept a conquest of such a sacred place. The historical, archaeological and GPRS evidence is entirely against the historical vandalism of 1528.
The next 500 years have seen agitation for recapturing and litigation over the issue. Since 1934 no namaz has been performed and puja goes on regularly.
(Based on Brief of the points made by Arun Jaitley, Leader of Opposition (Rajya Sabha)
while participating in the debate on Justice Liberhan Commission of Inquiry report in the Rajya Sabha on Dec 9, 2009)
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