 Hello and welcome to NewsClick. I am Paranjoy Gohatakurtha and with me here in the studio, I have senior advocate Rajiv Dhawan. Rajiv Dhawan has been practicing in primarily in the Supreme court now for about a quarter of a century and among the various cases that he's fought include the ones pertaining to the Babri Masjid, Stroke, Ram Mandir, Ram Janamhoomi at Ayodhya in Faizabad district in eastern Uttapadesh. Before we talk about the legal aspects of the September judgment of the Supreme Court, I'd first like you to outline the political implications also of what has happened because barely a month after the Supreme Court judgment, the Sarsangchalak, the head of the Rashtriya Swamsevak Sangh, Mohan Bhagwat said the government of India, the central government should promulgate an ordinance to ensure that the Ram Mandir is built. I presume at that dispute inside itself. How do you react to what Mohan Bhagwat has said? Cases like this should not be fought under the this unconscionable pressure. The atmosphere has gone entirely in one direction. In my view, this is contempt of court. The reason for this is that in 1969 when the chief minister of West Bengal commented on a case that was subjudice. This was PCCEN. PCCEN and they said this was contempt of court. You are not in a position to influence the judgment. Now obviously if somebody says, look, let's put in an application for contempt of court, then they would say that this is going about it in the wrong way. Such statements seek to overrule the 1994 decision, replace the Ayodhya Act of 1993, subvert the Lucknow decision and and interferes contemporaneously with the case that is going on. This is not called for. Okay. In a simpler language, as you can explain to those who are watching this program, you wrote an article in The Wire where you've mentioned, where you've stated that the Supreme Court's judgment on mosques to use your language is fatally flawed. And you have claimed right up front that contrary to what some Bharati Janta Party leaders have claimed, the request that the Supreme Court take a fresh look at the question of whether a mosque is an quote unquote essential part of Islam and thus protected by the Constitution of India was not an attempt at stalling or delaying the Ayodhya case. Far from it you say and you said the very fact that the three judge bench gave two deferring judgments shows that this important issue deserved to be heard. Kindly explain what you mean. Firstly, we were not trying to actually postpone any hearing at all. I went in there to argue merits. Having raised the question, the Supreme Court asked me to go on the preliminary question. Second, why is this important? It's important because in a self-standing sentence in the 1994 judgment, it was, this is the Ismail Farooqi judgment. That's right. And you're talking about what justice Varma had said, JS Varma, am I right? That's right. Varma for the majority had said mosques are not an essential part of the Muslim faith. Muslims can go and pray anywhere, even in the open. Including out in the open. Now, A, I find that offensive. And secondly, the stand alone statement affects not just the Muslims. It affects every temple, every body monastery, every gen to find out what the essential practice is. Now what the Supreme Court did, and this is the third question, is they said, no, this was made only in the context of acquisition. If that is so, since this point was argued in full before the Lucknow bench, which was influenced by it, the Supreme Court will now have to consider the impact of this judgment. And consider whether large parts or some parts of the Lucknow judgment have to be excised. You're talking about the Lucknow High Court's decision of 2010. Please explain, because what Justice Varma said within courts, there can be no reason to hold a mosque as a unique or special status higher than that of the places of worship of other religions in secular India, to make it immune for acquisition by exercise of sovereign or prerogative power of the state. And the senior advocate who had been appearing for the Deity, the Ram Lalla, K. Parasaran, he made what according to you is a disingenuous argument, because he talked about the pilgrimage test. For Muslims, it is Mecca and Medina, or the Dome of the Rock. For Christians, it is Jerusalem, etc., etc., etc. Whereas for India, he said pilgrimages are all inside India. Now, you find this argument flawed. See, as far as it is relatable to acquisition, it is clearly wrong. This was a self-standing pronouncement on the Muslim faith, and the status of mosques within it. There are mosques all over the world. There may be a lack of mosques in India. Are they not protected by the religious freedom clause of the Constitution? The pilgrimage argument is ex-fasai, absurd and communal. The reason why I say this is simple. If the pilgrimage argument is taken to its limits, it would in fact mean that those people whose faiths originated outside India are stand on a different footing, even if those faiths have been here for centuries. This is actually an unworthy argument, and I told the court so. Okay. We'll discuss a little bit more about what is likely to happen in the foreseeable future in the run-up, perhaps to the elections, to the legal case. But let's step back a little bit in time and just go a little bit into the background, and you can explain to me the politics of it all. The Babri Masjid was built in 1527 by Babar's commander-in-chief, Mir Bakl. It was at a place which we call Faizabad district in eastern Uttar Pradesh. It's a place called Ayodhya, where many Hindus believe, rightly, wrongly, history, mythology, that Ram was born there. Now, in 1986, when Rajiv Gandhi was the prime minister, and Arun Nehru was the minister of state for home affairs, for the first time the locks of that disputed structure were opened, and religious rites were allowed to be performed. Soon thereafter, the Vishwa Hindu Parishad started a campaign, that which picked up, and in 1989, it was the Bharti Janta Party, then under the leadership of people like Lal Krishnan Advani, Muli Mahnojoshi, their Rath Yatra had begun, all of which culminated on the 6th of December 1992, with the demolition of the mosque, after which the government acquired the land and the Supreme Court ordered the status quo. All is this is 1992. We are in 2018, but this remains a very, very volatile political issue, and is likely to be an issue in the coming months as we move towards the 17th general elections, which are scheduled for April and May of 2019. Let us get the facts right first. In 1885, in a concluded case, it was decided that title is in fact with the Muslims. The Hindus may have a right to pray. In 1945, in a conflict between the Shia and the Sunni board, it was decided that the Sunnis were the owner. Now, two illegal acts take place, conceivably three. The first is the act of trespass on the 22nd of December 1949. It is this illegal act of trespass, which had huge communal overtones, that really creates the prison crisis. In 1985, the magistrate had given power to remove the locks, but the locks were opened before the order was in fact written. Now, imagine the situation. Two ratyatras are taking place, and the whole world is looking at these yatraatras, and then a consecration like the destruction of the Bamiyan statutes, in fact worse, on the 6th of December 1992. And what does the BJP say in their white paper in 1993? This was perfectly good. Now, sentiment does not in fact give you legal rights. Mr. Dhawan, you know what happened after that. What happened in Mumbai? What happened subsequently in 2002 in Gujarat? And we still feel the reverberations of it. I mean, otherwise, why would the RSS chief say, urge the center to bring in an ordinance? And within the Sangh Parivat, there is a division. Sometimes we hear that the Uttar Pradesh Chief Minister Yogi Adityanath is of the view, no, we should not make this into an issue. There could be a debate or a dispute about how real or how important this could be as a political issue. Chief Minister Adityanath is overtly communal in this matter, looking at the elections. He has changed the name of Allahabad, and recently it is reported he wants to change the name of Lucknow, Aligarh, and before that Moghulsaray. And Moghulsaray, I'm sure. But the point is, this communal stance is obviously for an election. Therefore, if one plays it safe and the other doesn't play it safe, it's a non-issue. I think this is the single most destruction of the polity of India that independent India has ever known. It has no parallel. Abroad and in India, people are saying India is today a Hindu state. And all based on some sentiment, can you privilege ancient India, as Vincent Smith called it, and privilege it over medieval India? One is Hindu and it privileges Muslim India. This is sheer complete communalism and nothing else. We are the third largest Muslim country in the world. After Indonesia and Pakistan. That's now Indonesia and Bangladesh. Bangladesh, okay. Well, Mr Dhawan, let me ask you for your remarks on the MS Libahan Commission. As you're aware, soon after the demolition of the Babri Masjid, the disputed structure on the 6th of December 1992, the Government of India appointed this commission within days, 16th of December. It got 48 extensions. It took 17 years to submit a report. And all kinds of things happened in between. But finally, in June 2009, it presented its report to the then Prime Minister of India, Dr. Manmohan Singh. And in November 2009, this report was presented in Parliament by the then Home Minister, Mr. Chidambaram. Now, the Libahan report has held 68 people culpable. They named everybody, including the late Mr. Atalbihari Vajpayee, Lal Krishnan Advani, Muneena Joshi, called them pseudo moderates. He said the Kalyan Singh Government was allowed the RSS to run the Government. And he said the demolition was done with the preparation was accomplished with phenomenal secrecy, technically flawless and assured results. Finally, what happened? See, as far as the Libahan Commission is concerned, there are problems in appointing somebody who was at that time Chief Justice in Tamil Nadu and then in Andhra Pradesh. Obviously, it gets prolonged. But this issue is an extremely complex issue. Even in the Supreme Court now, this is a first appeal. In other words, every fact and every statement of law can in fact be examined by the Supreme Court, depending on what the parties think of it. As far as some of the leaders of the BJP are concerned, they were there. They were there on the Chabutra. Somebody now says, we said, save it, save it. In actual fact, the other version is, break it, break it. What did you, did they expect after two Rathiyatras all over the official part of Uttar Pradesh? Did they go there for fun? Mr. Dhawan, let me read out a paragraph for you from the Libahan Commission's report. And I want to link this to the September 2018 judgment of the Supreme Court. I quote, although there was no order restraining the Muslims from going to the disputed structure or from offering namaz therein either by the judiciary or from the administration, yet namaz was not offered at the disputed structure since 1934. And no processions were held inside the disputed structure nor any grave dug thereabout. This is what the Libahan Commission says. And you are very critical of what the Supreme Court has said in September when this whole issue about the mosque and whether it's an essential part of Islam or not and whether it's therefore protected by the constitution. How do you tie the two together? In 1934, the mosque was broken in parts. There was a building process going on. The evidence which is not accepted by the Lucknow Court is that prayers were in fact taking place till the Friday before. Now, why did the Muslims not pray there after that? It's because there was a stay order. And in the 1994 judgment, they said, and this was astounding, that because of this act of trespass and the stay orders, since the Hindus have been praying there, let them continue, the Muslims can't. Now, this is an issue before this court in terms of limitation, that is, you know, whether a limitation snapped between 34 to 1949. But the facts are that the Muslims were prevented from 1949 to 1994 onwards to pray there. Okay. Mr. Dhawan, where do you see the legal dispute going from here after September, after the September judgment? What do you expect? Any, the Supreme Court to take this legal dispute forward in what manner in the coming months? This is a first appeal. And therefore, all questions of facts and law are open. My real concern is that in this atmosphere, which is pernicious, there is an attempt being made to accelerate the processes in the Supreme Court. In a first appeal, you cannot do that. And I sincerely hope that the Supreme Court doesn't do that either. Because this is an important judgment. And like any first appeal, it must take its course without reference to the electoral process or the forthcoming election. Do you expect seriously in the run-up, we have about six months to April, May 2019. Do you, how do you see the Bharata Janta Party, the National Democratic Alliance, the RSS, the VHP, how do you expect, what do you expect them, I mean, would they politicize this issue? Would there be attempts made to do what Mr. Mohan Bhagwat has suggested? Would there be pressure on the government to promulgate an ordinance? In pure communal terms, they are politicizing the issue. And purely for electoral reasons and to appeal to the Hindu sentiment. There can't be any doubt about that. But the real question is, can you cut short a legal process in the near future? And the simple answer to that is, you cannot, not because of the importance of the case, but because the judgment itself was 8,000 pages long. I don't think the judges are going to read the entire judgment. A lot will depend on argument. The argument must not be curtailed. Thank you so much, Mr. Dhawan for coming here, giving us your views. Thank you Bharata. Just heard senior advocate Rajiv Dhawan explaining the legal implications of the September 2018 judgment of the Supreme Court pertaining to the Ram Janmhoomi stroke Babri Masjid dispute at Ayodhya and Uttar Pradesh. And he's also discussed the political implication and what's likely to happen in the foreseeable future. Thank you for being with us and keep watching NewsClick.