The decades-old Babri Masjid–Ram Janmabhoomi case has come to be the most intractable property dispute of our times. Most reports locate the starting point of the conflict at 1949, when Hindu idols were surreptitiously placed under the central dome of the Babri Masjid in the dead of the night. Years later, in 1984, the Vishwa Hindu Parishad started the Ram Janmabhoomi movement, mobilising Hindus across the country to build a temple on the disputed site. It ultimately led to the destruction of the mosque by mobs of kar sevaks—religious volunteers—in 1992, and communal bloodletting that left at least two thousand dead.
On 9 November 2019, a five-judge bench of the Supreme Court pronounced the eagerly anticipated final verdict on the resulting legal dispute. In a unanimous judgment, the court maintained that it had assessed the conflict primarily as a property dispute, or a title suit. “The dispute is over immovable property,” it stated. “The court does not decide title on the basis of faith or belief but on the basis of evidence. The law provides us with parameters as clear but as profound as ownership and possession.” Despite this exhortation, the court extended itself to hand over property rights over the entire disputed site to “Hindus,” on the premise that Hindu faith decreed that very site to be the birthplace of the epic hero Ram, who lived in the Ayodhya of the mythical Treta Yug.
The judges described the case as an “adjudicatory task of unique dimension.” What this referred to was possibly the complex task of upholding a rational system of jurisprudence around property law in the face of overwhelming religious sentiments that belied nearly five centuries of the subcontinent’s history. And yet, there is almost nothing particularly unique about a case of this nature appearing before an Indian law court. Property claims, especially over sacral structures and spaces, have historically been made both on the basis of archaeological evidence and religious belief.
The coming together of property and religiosity within the courtroom is a legacy of colonial case law between the late-nineteenth and the early-twentieth centuries in British India. Before this, most claims over land were overlapping and nebulous, and shrine lands in particular were, and often continued to be, shared spaces patronised by members of more than one religious community. This was a necessary corollary to the heterogeneous nature of people’s religious practices and beliefs. However, with the enforcement of a property regime under the British, the idea gained currency that a piece of land needs to have a clear, established title of ownership—whether vested in an individual, a deity through a trustee, or a group through an institution. Once the prospect of titular, undivided ownership to sacred spaces became a necessity, communities were forced to consolidate themselves into homogenous groups, to stake exclusive claims on shared shrine lands. The unfortunate result of this public politics of the 1920s and 1930s was the constitution of a conservative, xenophobic and hierarchical religious community, with narrowly drawn boundaries premised on hostility with rival groups.
This history is particularly relevant to understanding the Babri conflict, because some disputes over sacred property at this time, such as the Shiv Mandir Agitation of the 1930s, display striking parallels with the Ram Janmabhoomi claim.
In 1936, Shampuri, a Hindu ascetic, built a chabutra—platform—and proceeded to squat in Queen’s Garden, which surrounded the municipal Town Hall in Delhi’s Chandni Chowk. His encroachments soon expanded further and, in August 1938, the Delhi municipality charged Shampuri with trespassing on government land and ordered the police to remove him and his belongings. Nearly three hundred volunteers gathered on the spot by that evening, set up a temporary structure, and claimed the spot as the site of an old Shiv temple.
Both ascendant and active at this time, the Hindu Mahasabha provided ready leadership to this otherwise localised incident. It mobilised thousands of Hindu volunteers and began an agitation, in September 1938, which it called the Shiv Mandir Satyagraha. Defying government orders, volunteers from the neighbouring United Provinces and Punjab kept visiting the site to offer prayers and, in doing so, court arrest. The leaders of the satyagraha demanded the right to offer worship on the now “disputed” site. Worship continued amid heavy police presence, and satyagrahis often resorted to pelting stones at the police.
One day, a young Muslim man named Munawar Ali made his way into the disputed site and stabbed Shampuri. This sparked off incidents of communal violence, as Hindu groups began to attack neighbourhood mosques in retaliation. This hostility towards local Muslim shrines, however, had deeper roots. In 1931, the remains of a mosque, possibly razed after the Revolt of 1857, had been found in this area. John Nesbitt Gordon Johnson, then the chief commissioner of Delhi, had granted the land to Muslim residents of neighbouring Kucha Qabil Attar to build a small mosque. Referring to this case, the Hindu agitators of the Shiv Mandir Satyagraha argued that a symmetrical claim by Hindus ought to be honoured by a government that claimed to be an impartial adjudicator. Simultaneously, a number of prominent Hindu merchants and traders approached Evan Meredith Jenkins, Johnson’s successor as chief commissioner, in private, offering to buy the entire site, at a competitive market price, on behalf of the Hindu community.
Jenkins was unmoved by these demands. He had the site cleared, brought business to a screeching halt in Chandi Chowk by imposing section 144 and cracked down hard on the satyagrahis. Nearly a thousand volunteers were arrested in the course of the agitation. Jenkins called it a case of “bare faced robbery.” He said that he would not reward any demand that was born out of “encroachments” just because he was threatened by mass agitation. He pointed out that the government had acquired the land in question in the 1860s. According to him, “it would be fatal to admit, in Delhi of all places, that acquisition proceedings are invalid.”
Besides refusing to be bullied by a mass agitation and the threat of communal violence, Jenkins appeared anxious to uphold the inviolability of property transactions. He saw the issue as an unacceptable claim on prime urban land, and not really as a religious conflict. The agitating Hindu community did not merely want the right to offer worship at the site, it demanded titular ownership or property rights over it.
Both the government and the Hindu leaders eventually looked to the courts to pronounce an ultimate resolution. Although the courts rejected the claim of the Hindu agitators, a number of elements of the Shiv Mandir case of 1938 portend the main legal arguments on which the Babri case was successfully built in 2019. First, to strengthen their ownership claim over the site, Hindu plaintiffs in the Shiv Mandir case used the alleged discovery of an “achal shivling” embedded in the ground. In the Ayodhya case, the covert placement of idols in the mosque was similarly used to strengthen the claim that the site was the birthplace of Ram. Archaeological evidence was also proffered to show further “underground” markers of the existence of a temple on that spot.
Second, the defendants in the Shiv Mandir case attempted to have both the deity, as a juristic person, and the “Hindu public” added as parties to the dispute. In the Babri case, the infant Ram was introduced as a plaintiff in the 1989 suit filed by Deoki Nandan Agarwal, as his next of friend. Third, Shampuri claimed that he was the shebait, or custodian, of the deity, and ownership rights ought to be vested in him on behalf of the deity. In the Babri case, the Nirmohi Akhara’s claim on the land was premised on its role as the shebait of the disputed shrine.
And finally, in the Shiv Mandir case, over two hundred Hindu volunteers were presented as witnesses in court to prove that the demand for land for the public temple was backed by the Hindu public. The idea of the religious “public” as a party to the dispute entered the Babri case in the 1959 suit, when the Nirmohi Akhara claimed that it was “a religious establishment of a public character,” and then again in 1961, when the Sunni Waqf Board asserted that the Babri Masjid was a “public” mosque, and that the board claimed possession of the site on behalf of the Muslim community. However, it was the final Supreme Court verdict that most decisively evoked the idea of the abstract religious public, when it ultimately contended that the “possessory claim of the Hindus … stands on a better footing than … [that of] the Muslims.”
The idea of an abstract religious public as a homogenous entity crystallised only as recently as the early twentieth century. Although the subcontinent has been home to a number of different religions for several centuries, historians of South Asia widely acknowledge that everyday religious practices, or the “lived religion” of its people, have never existed in any pure form. This syncretism is manifest in the equally composite character of the region’s sacred landscape. For instance, it is common for worshippers of different religious groups to patronise the same shrine, or for separate shrines to coexist in the same space or in close proximity to one another. In periods of communal animosity, however, these same spaces often become flashpoints of violence.
Religious shrines in the subcontinent have always been complex spaces, and the intermixing of the practices of different faiths is only one factor that contributed to this complexity. Shrines were not merely places of worship. They were spaces of collective congregation for the local community. On festival days, thousands of people would gather from far and wide in shrine premises. Shrines were also involved in a host of businesses for income-generation. They would have serais and dharamshalas, and sometimes shops given out on rent. Shahidganj in Lahore was a classic example of a shrine complex that housed both a gurudwara and a mosque for centuries. Even after a Punjab court granted custodianship to its Sikh mahant, Jiwan Singh, in 1850, the mosque continued to operate within those premises. Jiwan Singh used the ample land at his disposal to earn income to support both his own sprawling family as well as religious worship in both shrines. He sold off portions of the large estate to Muslims, who also came to operate out of its premises.
As regulators of community life in particular regions, and the recipients of tax-free lands, shrines wielded a type of power that made British administrators nervous. They made repeated interventions, especially in the realm of law, to establish greater control over shrines and their unregulated incomes. To uphold precolonial practices, the British made exemptions for incomes derived from property meant for religious and charitable purposes, under the Income Tax Act of 1886. Soon after, however, they passed the Charitable Endowments Act of 1890, which narrowly defined religious and public charity as a domain that had to remain outside of the commercial circuit of profitability. This act delegitimised all profit-making enterprises that public shrines were involved in.
Around the same time, the government cracked down on the incomes of private religious endowments by establishing the deity as a juristic person who could own property, and by extension, be liable to pay taxes on income accruing from it. Besides these legal interventions, the government also eyed the large revenue-free grants of land that shrines traditionally enjoyed. With every colonial survey and review of revenue assignments, these land grants appeared to shrink in size. However, it was the periodical land-acquisition proceedings initiated by the government for “public purposes” that really pushed religious estates against the wall.
From the 1860s, and especially after 1911, the British government started acquiring land in and around Delhi, both for urban redevelopment and to build a new capital. The need to pay compensation forced the government to identify individual proprietors for every plot of land it acquired. This entailed the conversion of premodern claims on land into modern forms of property ownership.
Religious shrines, however, posed a serious obstruction to this process. Shrine lands were invariably mired in multiple overlapping claims that had accumulated over centuries. To make the process of acquisition simpler, the government would pay compensation to the custodian of the shrine—variously known as the pujari, mahant, mutawalli or shebait—an individual who had already been identified by case law as the manager of the deity and the shrine and a trustee or controller of the religious property. These measures were met with resistance. A number of local communities mobilised to protest the loss of their community spaces. They also resisted the move to compensate individual custodians as owners. They argued that shrines belonged to the entire community, and that ownership rights ought to reside with the community itself.
Popular mobilisations around religious shrines, then, were a common feature of the early twentieth century. The Akali Movement, the Khilafat Agitation as well as the Mandir Raksha Movement of the 1920s all drummed up public hysteria around threats to places of worship, and consolidated religious communities around the cause of protecting them from being appropriated, either by the state or by corrupt custodians.
Local mobilisations, which had links with these larger movements, were often attempts by groups to protect their community spaces from being swallowed up by the state through land acquisition. This is apparent in the infamous Kanpur Mosque incident of 1913, in which the police shot protestors objecting to the demolition of part of a mosque in Machli Bazar to widen a road. In the same year, Sikh volunteers across Punjab protested the demolition of part of the boundary wall of the Rikabganj Gurdwara in Delhi for construction work that was taking place in the new capital. The consolidation of the religious community around the symbol of the endangered shrine contributed in no small measure to the period of intense communal mobilisation and violence of the 1920s and 1930s.
The normalisation of the idea of exclusive ownership built on the institution of property, implemented and upheld by our British liberal predecessors, makes it impossible for us to appreciate how syncretic spaces may have operated in the pre-British past. However, even the most summary historical survey of the disputed site in Ayodhya suggests that it was frequented both by Hindu and Muslim worshippers for centuries, and was precisely the kind of space that is intrinsic to India’s historical landscape. In fact, the partition by British officials of the disputed site after the “riots” of 1856–57, into the inner and outer courtyard for Muslim and Hindu worshippers, respectively, appears to have taken cognisance of the shared nature of the religious claims on the site.
But the Supreme Court bench adamantly refused to acknowledge the presence of historically syncretic traditions of worship in a diverse, pluralist country. Instead, it chose to emphasise its commitment to “parameters as clear but as profound as ownership and possession” given to it by law. In using a modern, conservative interpretation of possession linked to property, the Supreme Court judgment both undermined the syncretic history that predates our colonial past and managed to placate the Hindu majoritarian government in power.