Bababudan Dargah Is an Old Victim of Judicial Reluctance in Upholding the Places Of Worship Act

Now, once again, it appears as if a judicial walkover is being given to the Hindu right wing through the judiciary's lack of interest in upholding the spirit of the 1991 Act.

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The Shri Guru Dattatreya Svamy Bababudan Dargah, situated in the Chikkamagaluru district of Karnataka, is an ancient and syncretic Sufi shrine venerated by both Muslims and Hindus.

It is also an old victim of judicial reluctance when it comes to protecting the status of a site as envisaged by the Places of Worship Act, 1991. Here, the very same brand of judicial relaxation is given to rightwing forces which has emboldened them to aggressively implement their ‘conversion’ agenda across India.

Religious fanatics claim without any evidence – historical or otherwise – that the dargah was a Dattatreya temple which was usurped by Muslims during the rule of Hyder Ali. However, even they admit that the site has existed and functioned as a dargah since Hyder Ali and Tipu, i.e, for more than 250 years now – and was certainly a dargah on August 15, 1947, which is specified in the 1991 Act as the date for determining the status of a religious place in perpetuity.

Now, in the face of the ongoing judicial misinterpretation of the Places of Worship Act, the dargah once again faces a grave threat of capture by the Sangh parivar.

Syncretic history

A dargah by definition is a “Muhammedan shrine or tomb of some reputed Muslim holy person, which is the object of pilgrimage and adoration”. But throughout India, such Sufi shrines are not venerated only by Muslims but also Hindus, many of whom are from Shudra castes.

The Shri Guru Dattatreya Svamy Bababudan Dargah also has a recorded history of at least 250 years in which “lower” caste Hindus and Muslim Fakirs visited the place and offered their prayers. The nature of worship at the dargah is age-old and unique. It has traces of both non-Vedic Hindu and Sufi Islamic practices.

Just a few months before Places Of Worship Act became law in 1991, the Karnataka high court itself had upheld its unique nature in its verdict on a civil dispute over the ownership of the shrine.

This dispute itself had roots in the classification and transferring of Muslim Waqf properties to the newly formed Waqf Board in 1975. Since the shrine was a dargah and the religious authority was a Muslim Shakadri, it was classified as a Waqf. Even though both Hindus and Muslims were devotees of the shrine, the law itself did not view it as a syncretic place.

The court felt that it either had to be under the Muzrai – which basically looks after most Hindu shrines (with two exceptions) in Karnataka – or that it should be transferred to the Waqf Board.

This puzzling administrative moment was also a great testament to the failure of official secularism where the system is incapable of comprehending and providing for the complex nature of subaltern secularism.

In this dispute, the Muslim Shakadri – the religious and administrative head of the dargah – expressed no objection in transferring it from the Waqf Board to the Muzrai, as it had been governed by a special status as a Muslim shrine albeit under the Muzrai Act since 1927.

However, the Wakf Board itself contested the transfer.

Also read: In Lakhnawi Tradition, Communal Harmony in Places of Worship Leaves No Space for Hatred

While adjudicating on this dispute, the Karnataka high court had not only upheld the dargah nature of the shrine and the religious authority of the Shakadri over the shrine, but had also lavshly praised the syncretic nature of it.

Even the Supreme Court had upheld the high court verdict in May 1991. Thus, not only the civil dispute about the ownership but also the dispute pertaining to the religious nature and forms of rituals had also reached finality in May, 1991 – a good two months before the Places of Worship Act, 1991, became a law.

False history

Shortly afterwards, a new dispute was engineered by Hindutva forces emboldened after the demolition of the Babri Masjid.

Demolition of the Babri Masjid on December 6, 1992. Photo: PTI

Their claim was that since Hindus venerate this as the abode of Lord Dattatreya, new rituals like Anasuya Jayanti, Satyanarayana pooja, and so on, should be allowed.

The irony is that the high court itself, while adjudicating on another dispute regarding the shrine, had ordered the Endowment Commissioner to look into and ascertain the rituals practiced at the shrine.

The Endowment Commissioner conducted a public hearing through the District Muzrai Officer and codified the rituals.

According to it, the Shakadri is the ritual head of the shrine and a Mujavar appointed by the Shakadri would only enter the sanctum sanctorum. The Mujavar would light the lamp and distribute food to congregations once a year among other limited responsibilities.

This codification was passed on February 25, 1989. In spite of this, new Hindu-Brahminical practices were allowed at the shrine.

Since 1992, an annual congregation, ‘Datta Jayanthi,’ was allowed by the successive, non-Bharatiya Janata Party governments. Also, a weeklong ‘Datta Mala’ was permitted since 1997.

After the 2002 Gujarat riots, the nature of intervention at the shrine by the Sangh Parivar changed qualitatively. Since 2002, the demand changed to “liberate” the dargah from the “clutches of Muslims.”

“Dattapeetha is the Ayodhya of the south and Karnataka is the Gujarat of the south,” was the new slogan.

A new petition was filed in the high court in 2003 (WP 43621/2003), by Dattapeetha Samvardhana Samiti, pleading the annulment of the Endowment Commissioners order of 1989 which codified the rituals at the shrine, citing that the shrine itself was a Dattatreya temple allegedly usurped by Muslims during the rule of Hyder Ali.

Twelve years after the Places of Worship Act – which constrained any new dispute around religious natures of shrines which existed prior to 1947 – was passed, a new dispute around the religious natures of a shrine was raised.

Also read: 1991 Places of Worship Act and 1942 Allahabad HC Ruling Settle Gyanvapi’s Status as a Mosque

And yet, the Karnataka high court admitted the plea and passed an order in 2007, annulling the 1989 codification by the Endowment Commissioner and asked him to conduct a fresh public hearing to determine whether the religious nature of the shrine was changed during the period of Hyder Ali and if so, consider appointing a Hindu Archak and allow rituals according to the Hindu Agama way.

Thus, the court was judicially justifying the change of religious nature of the shrine.

This was challenged by the Shakadri and also progressive individuals and organisations in the Karnataka high court and later in the Supreme Court.

Arguing the case before the Karnataka high court division bench, the government’s advocate practically did not pursue the case of the state. By then, the BJP had come to power, along with Janata Dal (Secular) in the state. Thus the single bench order was upheld.

It was challenged in the Supreme Court in 2008 through a special leave petition (29429/2008) by organisations and prominent individuals of Karnataka and the Citizens For Justice and Peace (CJP). This was admitted.

While the status quo according to 1989 Endowment Commissioners (EC) codification was retained, the commissioner himself was allowed to conduct a public hearing to “determine the religious nature prior to 1947” and was asked to give the report to the apex court in sealed cover without acting on it.

Thus the Justice Chandrachud bench’s interpretation of Places of Worship Act in the Gyanvyapi mosque case has a historical precedence in the Baba Budan Dargah case, where ascertaining the religious nature of the shrine was allowed by the Supreme Court, taking a technical view of the Act and ignoring the implication of the same.

The commissioner conducted a public hearing in 2010. The implication of the Places of Worship Act was brought to the commissioner’s notice by the Communal Harmony Forum (Karnataka Komu Souharda Vedike). The commissioner in his wisdom declined to take into cognisance the future of the Act and commented, thus:

“It is contended by many individuals and organisations that after the enactment of the Places of Worship Act 1991, in the year 1991, it is compulsory to maintain the position as it was existing as on 15th August 1947 except Babri Masjid and hence any change in the religious affairs in Sri Guru Dattatreya Bababudansvamy Darga would be violative Places of Worship Act 1991. This issue cannot be discussed by this authority as he is directed to hear codification of the rituals by the Honourable High Court of Karnataka and Honourable Supreme Court of India. It is open for the contenders to raise this issue in the pending proceedings before the Honourable Supreme Court Of India” (p. 115, ‘Enquiry Report’).

But the commissioner also recommended the appointment of a Hindu Archak and the institution of the Agama way of rituals along with the Mujavar continuing the practices codified by the earlier commissioner. So partisan were his recommendations
that he endorsed all the demands made by the Devasthana Samiti and its Hindu devotees in spite of the lack of any convincing historical or archaeological evidence. The piles of documents provided by the other side were not even acknowledged in his report.

Unexplainable verdicts, predictable outcomes

The Supreme Court division bench of Justice Ranjan Gogoi and Justice N.V. Ramana, opened the sealed cover and gave its verdict in September 2015 (CA 2685/2010) thus:

“…[W]e are of the view that, at this stage, the State should be left free to take its decision on the result of the Enquiry of the Commissioner as indicated in his Report. The State Government will naturally be duty bound to take into account all objections that may be raised against the said Report including the objections raised by the parties to the present appeals, as indicated above. Thereafter, the State Government will decide the matter.”

Thus the Supreme Court refused to interpret and order the implementation of the clauses of the Places Of Worship Act for the second time in the Bababudan Dargah case.

Supreme Court of India

Supreme Court of India. Photo: Pinakpani/CC BY-SA 4.0

The Congress government in the state constituted the Justice (retd) Nagamohan Das committee to hear the parties in the case and give its recommendations. The committee heard the public and both the parties in detail. It recommended retaining the rituals as codified in the order of the commissioner in 1989, arguing that the Places of Worship Act, 1991, does not permit the appointment of a Hindu Archak or Agama rituals since it amounts to changing the religious nature of the shrine.

The government accepted the recommendations and passed an order in March, 2018, to continue the rituals as codified in 1989.

This was again challenged in the HC by the Dattatreya Devastahana Samvardhana Samiti (WP 18752/2018).

Also read: The Contradictions in the Anti-Muslim Tirade in Karnataka

In 2019, the BJP came to power in Karnataka through what was widely known as ‘Operation Kamala’. Once again, the government advocate who was to defend the government’s order and argue the case in the spirit of the Places of Worship Act hardly did his job.

The other organisations which argued the case in the spirit of the Act before the Supreme Court were denied locus standi in the case and were – incredibly – asked to assist the government advocate.

Also read: Govt Appointing Mujawar To Perform Hindu Rituals in Datta Peetha Counter to Muslim Belief: HC

Repetition of Ayodhya judgment

On September 29, 2021, the high court gave its order on the dispute. The judge, in his wisdom, denied the applicability of the Places of Worship Act to the dispute by extending a strange reasoning that the issue in dispute had attained its finality before the Act came into existence.

The fact, however, was that the dispute hitherto heard under the original suit was regarding the ownership of the site and not the religious nature of the shrine.

Still, the high court in February 1991 and the Supreme Court in May, 1991, while upholding the transfer from Wakf to Muzari, had endorsed the dargah nature of the shrine. So, if that was considered as finality then the case of the Devasthana Samiti should have been dismissed.

On the other hand, the fresh dispute squarely questioning the religious nature of the shrine was filed by the Devasthana Samiti in 2003, 12 years after the Act came into existence.

The high court also opined that appointing a Hindu Archak and ordering Agama rituals to take place would not lead to a “change of religious nature” since the Mujavar would continue his rituals simultaneously.

It also took shelter in the Ayodhya judgment which had relied on faith of the majority, rather than evidence and proof.

Thus the Bababudan Dargah case continues to be the old victim of judicial reluctance in applying the Places Of Worship Act.

The Supreme Court’s recent order in the Gyanvyapi case where it interpreted the Act as only prohibiting a change of religious nature and not ascertaining the religious nature of the shrine has opened a Pandora’s box.

Already the Bajrang Dal unit at Srirangapatna, once capital of Tipu Sultan, has made an appeal to district authorities to video graph the old mosque built by Tipu to ascertain whether there was a Hanuman temple beneath it.

It appears as if a judicial walkover is being given to the Hindutva rightwing through the judiciary’s unjustified reluctance in upholding the spirit of Places of Worship Act in  the face of the right wing’s unconstitutional pleas.

Shivasundar is a senior columnist and activist in Karnataka.