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Law

Ayodhya Verdict: The Poems that Could Have Changed History

The Supreme Court didn't deal with the argument that inscriptions outside and inside the Babri Masjid could constitute evidence of waqf-by-dedication, not say why they didn't find it fit for consideration.

On March 25, 2020, the Chief Minister of Uttar Pradesh, Ajay Singh Bisht alias Yogi Adityanath, performed a pre-dawn puja to move the idol of Ram Lalla to inside the ‘Ram Janmabhoomi’ premises from where it had been removed when the Babri Masjid was demolished on December 6, 1992. As controversy over whether this was in violation of the lockdown and social distancing announced by Prime Minister Modi takes centre-stage, with this puja, the Ram Mandir issue itself is finally done and dusted and all that remains is the actual construction work, which will go on for some time. But since the anti-CAA protests have brought poetry back into fashion, before we close this chapter and consign it to the history textbooks, let us take a parting look at the case and two poems that had the potential to change the course of history.

Before we begin, a two-line crash course on the law of waqf may be necessary. To prove the existence of a waqf (a masjid is a form of waqf), the person claiming it to be one has to prove one of two things: either (a) dedication of the property by the owner to service of Allah, known as waqf-by-dedication, or (b) long, uninterrupted and exclusive use of the property for religious purposes, known as waqf-by-user.

The Supreme Court in its judgement found that there was no document establishing dedication by the owner, and therefore examined the evidence of waqf-by-user presented by Rajiv Dhavan. The court held, as is now well known, that the use of the property by Muslims was neither exclusive nor uninterrupted, and therefore did not constitute waqf-by-user.

However, there actually was a case for waqf-by-dedication that was sought to be argued based on the inscriptions in the Babri Masjid that dated back to 1528 A.D. These inscriptions stated that the structure was built in 1528 A.D. by Mir Baqi, a general of Babur, on Babur’s command and was intended to be a mosque. If proved, these inscriptions could serve as the instruments evidencing dedication of the structure by the founder for the purposes of use as a mosque i.e. all the elements required for a waqf-by-dedication. Since the inscriptions themselves had been destroyed in 1992, the Allahabad high court examined the transcripts of the inscriptions and, finding them unreliable, discarded them.

An archival photo of the Babri Masjid from early 20th century. Photo: British Library

To understand the outcome of the case in the Allahabad high court, it is important to note that the court was considering two Persian inscriptions found in Babri Masjid, both of which were in verse:

• One inscription was located inside the structure, on the right hand-side of the pulpit (mimbar),

• One inscription was located outside the structure, above the main entrance door.

Theory of destruction of the inscriptions in the riots of 1934

Justice Sudhir Agarwal of the Allahabad high court, while discussing the two Persian inscriptions, relied on the theory that some inscriptions were destroyed in the communal riots that took place in Ayodhya in 1934, after which parts of the Babri Masjid destroyed in the riots were reconstructed.

This theory of destruction of the inscription was suggested by authors Ashraf Hussain and Z.A. Desai in Epigraphia Indica-Arabic & Persian Supplement 1964 and 1965, published by the Archeological Survey of India. However, the high court judgment glossed over the fact that even Ashraf and Desai only suggested that the inscription located inside the structure was damaged and reconstructed. Even they had not doubted that the inscription located over the entrance to the mosque was the original.

This is important because they were not doubting the inscription located outside the building. Since the only theory of any inscriptions having been destroyed in 1934 was propounded by these authors, none of the sources relied upon by the high court even suggested that the inscription outside was not original or that it was ever altered till it was finally destroyed in 1992. However, the high court, by a flourish, used this theory to discredit the inscription above the entrance as well, which was not doubted or disputed by any historian or historical source. As far as the inscription located inside is concerned, the court did not address the fact that the transcript of the inscription reproduced by Annette Susannah Beveridge in her translation of Babur-Nama in 1921 matched perfectly with the transcript recorded in 1946 by the court-appointed commissioner and in 1964 by Hussain and Desai, thus making it clear that there was no change in the text of the inscription in 1934.

We are therefore left with two inscriptions, both of 1528 A.D., one undisputedly preserved in its original form and another, demonstrably unchanged despite some repair in 1934.

Comparison of inscriptions

The inscription located outside, above the entrance of the mosque, comprised essentially of 8 stanzas of Persian verse, each being in the form of a couplet, thus forming a full poem or ghazal. The inscription located inside the mosque was 3 stanzas of Persian verse, each in the form of a couplet, forming another, shorter poem.

Inscription located inside the Babri Masjid, on the right hand-side of the pulpit (mimbar). The inscription contains 3 couplets of Persian verse.

Four prominent authors had reproduced and translated these inscription, whose works the high court relied upon:

• Fuhrer in The Sharqi Architecture of Jaunpur: With Notes on Zafarabad, Sahet-Mahet and Other Places in the North-Western Provinces and Oudh, 1889

• S. Beveridge in Babur-Nama, 1921 (Beveridge reproduced only the first 3 out of the 8 verses from the outer inscription and states in her book that she was unable to read the remaining.)

• Ashraf Hussain and Z.A. Desai in Epigraphia Indica-Arabic & Persian Supplement, 1964

• A court appointed commissioner’s report in Regular Suit No. 29 of 1945 (the civil suit contested between the Shia and Sunni Waqf Boards for possession of Babri Masjid that was decided in 1946 in favour of the Sunnis)

In his judgment, Justice Sudhir Agarwal compared the four reports of the inscriptions found in the Babri Masjid. The Persian inscriptions recorded by three of these, Beveridge, Hussain and Desai and the court commissioner, were exactly the same, although there were minor differences in the English translations of each author. The fourth, that of A. Fuhrer, Justice Agarwal found, was completely different.

Justice Agarwal laid great emphasis on (a) the complete mismatch with the report of A. Fuhrer, (b) the differences even amongst the translations of the remaining three authors and (c) on the fact that the district judge in the judgment in the 1946 case read the name of the general mentioned in his commissioner’s report as Mir Baqi Isfahani, although historical sources recorded that the only general in Babur’s army named Baqi was from Tashkent and not Isfahan, leading him to the inference that the inscription was a work of fiction. Based on all these “crucial discrepancies”, Justice Agarwal held that there was “a serious doubt over the genuineness and authenticity of the text or transcript of the inscriptions” and no judicial reliance could be placed on them.

Out of the three major discrepancies the learned judge mentioned, (b) and (c) are more easily explained, so it is better to get them out of the way first. The differences in English translations between Beveridge, Hussain and Desai and the court commissioner were just individualistic differences in translating the same text. What was important was that the Persian inscription copied by all three tallied completely.

If the learned judge had troubled himself to read even the Devanagiri transliteration of all three available in court records, it would immediately be clear that they tallied word for word. However, he instead looked only at the English translations by each and found variations such as the mosque was described as the “alighting place of angels” in one translation, “descending place of angels” in another and “resting place of angels” in the third. Mir Baqi is described as “fortunate noble” in one translation, “good-hearted” in another, while the third merely reproduces the word “Amir” that appears in the original. This is simply the lack of corresponding words in one language to fully replace a word occurring in another. The word “Amir” has no exact parallel in English. While the court commissioner did not even bother attempting to translate it, Beveridge attempts “good-hearted” as the translation and Hussain and Desai go with “fortunate noble”.

As far as the reference to ‘Mir Baqi Isfahani’ is concerned, the court commissioner’s report does not use the words ‘Mir Baqi Isfahani’ at all. It uses the expression “Mir Baqi Asaf sani” (Mir Baqi, the Asaf of our times; Asaf being a great general mentioned in the Quran), which is also the expression reported by Hussain and Desai. It was in the district court’s order of 1946 in the Shia-Sunni matter (and not in the court commissioner’s report itself) that the district judge  misread the phrase “Asaf sani” in the commissioner’s report as “Isfahani”. And even this mistake is actually fairly legitimate because the two expressions are written very similarly in Persian.

Asaf sani (top) and Isfahani (bottom)

This misreading of an otherwise accurate transcript in an earlier judicial order is what Justice Agarwal latched on to and used it to discredit the transcript and, by association, the inscription itself. By this logic, the belief that Ramakrishna Mission was founded by Swami Vivekananda is now rendered suspect as a person of considerable international importance recently said it was founded by Swami Vivey-kamu-nanand, and now we don’t know who the real founder was.

Which finally brings us to A. Fuhrer, whose report matches no one else’s. The more glaring error Justice Agarwal commits in this regard is in the context of the outer inscription. He does not realise that A.Fuhrer has got the order of the verses in the poem mixed up. So, if we number the eight couplets in Hussain and Desai and the court commissioner’s version as 1-2-3-4-5-6-7-8, then A. Fuhrer records them in the order 1-2-4-5-8-7-3-6 (No. 2 he says was illegible).

The learned judge compared the 3rd couplet in Fuhrer’s sequence with the 3rd couplet in the others’ (and so on) and finding that they did not match, did not bother checking if it matched with some other verse in the sequence. This is like if someone sings “saare jahan se achcha” and sings the “godi mein khelti hein” verse before “parbat woh sabse uncha”, and we compare only verse 3 of the rendition with verse 3 of Iqbal’s version and finding them to be different, arrive at the conclusion that this can’t be used as a marching song by our armed forces because no authentic version exists. Basically, more diligence than this is expected, particularly when deciding issues of such grave importance.

This, however, does not fully explain Fuhrer’s version of the inscriptions. There are still differences in Fuhrer’s version from all the others, which remain unexplained.

The report of the inscriptions given by Fuhrer correspond with the other transcripts in that they mention Babur as the patron, and state that what is being dedicated in a “masjid”. However, Fuhrer gets the name of the general executing Babur’s commission as Mir Khan instead of Mir Baqi and gets the year of construction as 530 Hijri (1523 A.D.) instead of 535 Hijri (1528 A.D.). But if one looks at the actual poem instead of merely the translation (unlike the high court), the differences, particularly in the inside inscription, are actually quite stark.

First, although Fuhrer, like the others, reports that both poems are written in ramal metre, his verses actually often do not fit that metre at all. And as far as the inside inscription is concerned, it’s actually a completely different poem! Just some words randomly match words in the poem reported by the others, otherwise even the rhyme is different.

(Note: Ramal metre in poetry is a prefixed metre where each misra (line) of each sher (couplet) should be of the same phonetic length as the words “faelatun faelatun faelun”. Don’t ask me why the ancients masters of poetry came up with these random sounding noises, but so it goes.)

Of course, “My Lords, but it is such bad poetry” is not an argument that you can make in court. But imagine if some issue of national importance turned on the text of the poem “Stopping by woods on a snowy evening”, and the court found that one scribe of English, that ancient language of British monarchs, had reported a certain verse as:

The woods are lovely, dark and deep,
But I have promises to keep,
And miles to go before I hit the tavern and get a beer

and on this basis, the court held that since this version differed significantly from that other version by Robert Frost, we are unable to place any reliance on the poem for an indication of what this rider intended to do at the end of his long ride and must discard it altogether.

Let’s take an actual example. The English transliterations of Fuhrer’s version of the inside inscription, and everyone else’s version of it, are both reproduced below:

Beveridge, Court Commissioner and Hussain & Desai’s version:

Bafarmud-e-Shah-e-Babur ki adlash
Binaist ta kaakh gardun mulaqi
Bina kardaeen muhbat qudsiyan
Amir-e-saadat nishan Mir Baqi
Buwad khair Baqi cho saale-e-binaish
Ayan shud ke guftam buwad khair Baqi

Herr Fuhrer’s version:

Bamansha-e-Babur khadyun jahan
Beshanike ba-kaakh gardun inan
Bina karda een khane payedar
Amir-e-saadat nishan Mir Khan
Bemanind hamishe chunan banaish
Chunan shehriyar zameen-o-zaman

Justice Agarwal reads only the translation and says in Fuhrer’s version, the general commissioned to construct the mosque by Babur was named Mir Khan, and therefore, this casts a doubt as to whether Mir Baqi actually constructed the mosque, and therefore, we must discard this evidence altogether. Now if you take the trouble of reading the transliteration of words that otherwise make no sense to you (please do that, don’t be like Justice Agarwal), you will notice that one or two words in each of Fuhrer’s lines match words in the corresponding lines in the others’ version. Even the placement of the words is the same. The rest are completely different. It’s as if Fuhrer obtained a very bad rubbing of the inscription in which only a few words were legible and decided to complete the lines to make up his own jingle. This is why Mir Baqi appears in Fuhrer’s version as Mir Khan, because he had to rhyme it with jahan, inan and zaman. But then, Fuhrer would never do that, he was a responsible historian after all. Right? Wrong.

The credentials of A. Fuhrer

It might be of some relevance to note that A. Fuhrer was dismissed from the Archeological Survey of India in 1898, a few years after he made the transcripts of these inscriptions, on the proved charge of falsifying inscriptions, submitting false reports and adopting unmethodical and unbusinesslike practices. The ASI conducted an inquiry against him, based on which he was dishonourably dismissed from service. The inquiry report was published for the first time as part of an article in the Journal of the Royal Asiatic Society of London in January 2012. Since this was after the judgement of the high court, Justice Agarwal, to his credit, did not have the benefit of it. Extracts from the inquiry report dated October 18, 1898 are given below.

The Lieutenant Governor proposes to direct Mr. E. W. Smith, Assistant Archaeological Surveyor to this Government to relieve Dr. A. Fuhrer of both the offices held by him, namely the offices of Archaeological Surveyor and Curator of the Lucknow Museum. Mr. E. W. Smith when assuming charge of the office of Archaeological Surveyor will be careful to take over all drawings, photographs and other documents which still remain in Dr. Fuhrer ‘s custody… Very special care will be taken that Dr. Fuhrer take with him nothing belonging either to the Museum or the Archaeological Department.” (emphasis added)

Dr. Führer does not seem to possess even rough drafts or notes. He says he was not in the habit of keeping a journal of his tours or of writing up notes of his observations from day to day.

How he managed to produce the books he has produced, including some very credible works, I cannot understand. He is a most unmethodical and unbusinesslike person.

What his motive was in writing such a series of palpable falsehoods, I cannot understand. His only excuse is that more was thrust upon him than he could possibly do. It may be true that he was asked to do an unreasonably large number of heavy tasks; in fact, I have no doubt he was asked to do too much; but he could easily have pointed this out, and if he had honestly done so, no one would have blamed him. He preferred to adopt the extraordinary course of systematic lying.” (emphasis added)

The Annual Progress Report of the Archaeological Survey Circle, North- western Provinces and Oudh by A. Fuhrer, from which his report of these inscriptions is extracted, is discussed in a Royal Asiatic Society Journal article by Michael Willis in 2012 in the following words:

“He visited central India in 1892-93 and published an account of his tour in the Annual Progress Report of the Archaeological Survey Circle, North- western Provinces and Oudh. Reading Führer s report as a whole, one is struck by the ambitiousness of his itinerary and the lightning speed with which he travelled across Rãjasthãn and Mãlwa. The hurried nature of the tour shows in Führer’s frequent mistakes and his basically meaningless comments on architecture. These consist of aesthetic disquisitions with a top-dressing of disparaging remarks about the influence of Islam, a stock-in-trade of British historical interpretation designed to undermine the Islamic rulers of India and highlight the benefits of colonial rule.” (emphasis added)

“We are under no obligation to take any of this seriously. What is a matter of concern is the fact that Führer was a persuasive and charismatic individual responsible for a series of audacious scholarly deceptions. Those from the first part of his career have been explored by Professor Andrew Huxley in a previous volume of this journal. Like many of his ilk, Fuhrer seems to have combined an impressive personality with enough Indological knowledge to appear convincing, at least to those who to those who did not know better or who did not take the time to check details. Of course the method of all con-artists, academic or otherwise, is to hoover-up other people’s ideas, move quickly and create such a flurry of activity that details cannot be checked. Eventually, however, Fuhrer was investigated and forced to resign from his position in the Archaeological Survey of India. That was in 1898. Vincent Smith conducted the investigation and uncovered a breath-taking degree of bad scholarship and bad archaeological practice. Smith’s report is essential reading for anyone interested in the Indological and colonial history of north India. Not previously published, the report is given here in an appendix.” (emphasis added)

More of Fuhrer’s scams are discussed in an article by Andrew Huxley published in the Journal of the Royal Asiatic Society in October 2010 (also after the Allahabad High Court judgement) titled “Dr Fuhrer’s Wanderjahre: The Early Career of a Victorian Archaeologist” in the following words:

“In 1921 Charles Duroiselle and Louis Finot, two of the French scholars attached to the E ́cole Franc ̧ais d’Extreˆme Orient, revealed that all three Gupta inscriptions from Burma were bogus. They had “never existed”. Because “whole theories” had been built upon them “it is time the truth about it should be known”. They had been “invented in toto by Dr. Fuhrer during a tour he made in Burma”. The best construction that has been put on “these doings of Fuhrer is that his mind was weakening”. Finot confirmed that the “author of the imposture” was “the all-too-famous Dr Fuhrer”. Fuhrer’s tour of Burma in 1893–94 had, he said, marked the beginning “of that scandalous career of forgery which would, some years later, come to an end in Kapilavastu”. Source analysis shows that Fuhrer constructed the Tagaung inscription from two obscure publications: an article published in 1836, and a list of kings from the Hatthipala Jataka. With hindsight, it did seem odd that Fuhrer, though accompanied by a cameraman and draftsman, had taken neither photograph nor eye-copy of the Gupta inscriptions.” (emphasis added)

In the above background, it is relevant to mention that in his book The Sharqi Architecture of Jaunpur: With Notes on Zafarabad, Sahet-Mahet and Other Places in the North-Western Provinces and Oudh, from which the present inscriptions are extracted, Fuhrer himself mentions in the context of the inscription found inside the mosque (the poem extracted above) that “The letters of this inscription have been mixed together by the copyist, and are therefore very indistinct.”

Despite the inscription being indistinct, Fuhrer produces all three couplets of Persian verse in this inscription and produces a version not matching any other report, confounding judges reading his reports over a century later. Fuhrer’s inscriptions are now recognised in academic circles as the products of a con-man or a diseased mind sitting in his room with hurriedly gathered material manufacturing jingles and inscriptions to baffle the world and preserve his own position in the ASI.

Once we discard Herr Fuhrer’s version of the inscriptions, all that remains are three reports that tally perfectly with each other, word for word. And all three reports showcase two inscriptions dating back to 1528 A.D. marking a contemporaneous record of the construction of the structure by commander Mir Baqi under commission from his King, Shahanshah Babur and dedication in writing of the structure as a masjid. The test of a waqf-by-dedication stood satisfied.

The final outcome

When the above arguments were commenced in court, Justice Gogoi (as Mr. Gogoi then was) interrupted the argument to say that since he could not even understand Hindi, these arguments on linguistic nuances were impossible for him to appreciate, so it was better if they were submitted in writing instead of being presented orally in court. None of the above arguments, although submitted in writing as instructed, eventually found their way into the judgment. Instead, the court held that since it was admitted by the Hindu side in the pleadings themselves that the structure was constructed in 1528 by Mir Baqi on the command of Babur, there was no necessity to “enter into the thicket” presented by these inscriptions.

The argument that the inscriptions, if proved, could constitute evidence of waqf-by-dedication was not dealt with in the final judgment, and we do not know why their Lordships did not find it fit for their consideration. But here, all argument must end, because the Supreme Court’s decision is final and is the last word on this subject. All that now remains is a temple under construction and some stories of poems that briefly threatened to change the course of history.

Nizam Pasha is a lawyer practicing in Delhi. He was one of the lawyers who argued the Babri Masjid case before the Supreme Court. The views expressed are personal. He can be reached on Twitter @MNizamPasha.