The Supreme Court claims that its Ayodhya verdict is not based on faith and belief of the Hindus but on credible and admissible evidence. But that is clearly not the case and it raises many serious questions for jurists and social scientists to ponder. In Part I of a three-part series, this article looks at some of the key evidence the SC examined to arrive at its conclusions
Prasanna Mohanty Last Updated: November 15, 2019 | 16:58 IST
A week after the Ayodhya verdict was delivered by a five-member bench of the Supreme Court in a widely broadcast event, a heated debate continues: What exactly was the basis of it?
The unanimous Supreme Court (SC) verdict on Ayodhya dispute brings in several factors into play -legal, historical and archaeological evidence, land and revenue records, faith and belief, travelogues, scriptures, the Constitution of India and the rule of law - to decide the title of the site where the Babri Masjid once stood for 464 years until it was demolished in 1992. The verdict is in favour of the "deity of Lord Ram" and the Muslims have been asked to build their masjid elsewhere for which the state (Central or state government) would provide five acres of land.
A week after the verdict was delivered by a five-member bench in a widely broadcast event, a heated debate continues: What exactly was the basis of it? While some experts point at faith and belief of the Hindus, others disagree; a few even express their inability to decipher saying that the verdict contains many contradictions and ambiguities. Questions have also been raised about the application of several legal principles relating to limitations, adverse possessions and other such.
Before exploring all these aspects, here is a reality check on what weighed in the minds of the judges while deciding the case. (Page numbers have been given for easy referencing since the verdict runs into 1,045 pages.)
Also Read: Ayodhya Case Verdict: 'We believe in unity in diversity', says PM Modi on SC ruling
Is it based on legal evidence and the rule of law?
The judges set the ground rules very clearly about deciding the title.
One, they rule out getting into the Mughal era events (the Babri masjid was built in 1528) by saying: "This Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today." (page 707)
Then they lay out the rules to play by: "The dispute is over immovable property. The court does not decide the 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. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property." (emphasis added, page 920)
The following two are the most significant legal evidence the Supreme Court has examined in its "Analysis on title". Both are post 15 August, 1947 - the date set by the Places of Worship (Special Provisions) Act of 1991 for not allowing any change in the religious character of a place of worship "as it existed on that day", except for the Ayodhya dispute.
(1) Placing the idols inside the Babri masjid in 1949
About the placement of the idols in the masjid's inner sanctum in 1949, the verdict says: "...on the night between 22/23 December 1949, when a group of fifty to sixty persons installed idols on the pulpit of the mosque below the central dome. This led to the desecration of the mosque and the ouster of the Muslims otherwise than by the due process of law." (emphasis added, page 913)
A few pages later it says: "The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship." (emphasis added, page 922)
(2) Demolition of the Babri masjid in 1992
The verdict says: "On 6 December 1992, the structure of the mosque was brought down and the mosque was destroyed. The destruction of the mosque took place in breach of the order of status quo and an assurance given to this Court. The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law." (emphasis added, page 913-914).
This was repeated a few pages later: "The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago" and "There was no abandonment of the mosque by the Muslims." (emphasis added, page 922 and 923)
The verdict could not have been based on such evidence as it points out that the acts of sneaking in the idols into the masjid and then demolishing the masjid amount to "desecration of the mosque" and constitute "egregious violation of law", respectively.
Is it based on archaeological findings?
In 2003, the Archaeological Survey of India (ASI) had submitted its Allahabad high court-mandated scientific investigation of the disputed site. After analysing the ASI's findings, the verdict says it "must, however, be read contextually with the following caveats":
1. "While the ASI report has found the existence of ruins of a pre-existing structure, the report does not provide: (a) The reason for destruction of the pre-existing structure; and (b) Whether the earlier structure was demolished for the purpose of the construction of the mosque.
2. "Since the ASI report dates the underlying structure to the twelfth century, there is a time gap (original emphasis) of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries;
3. "The ASI report does not conclude that the remnants of the pre-existing structure were used for the purpose of constructing the mosque (apart, that is, from the construction of the mosque on the foundation of the erstwhile structure); and
4. "The pillars that were used in the construction of the mosque were black Kasauti stone pillars. ASI has found no evidence to show that these Kasauti pillars are relatable to the underlying pillar bases found during the course of excavation in the structure below the mosque." (all emphasis added, except the one specified, pages 906, 907)
And then it concludes: "A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI" because "no evidence is available in a case of this antiquity on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-existing structure was demolished for the construction of the mosque." (emphasis added, page 907).
Is it based on travelogues, gazetteers, land or revenue records?
The verdict examines many travelogues but emphasises chiefly on the accounts of Father Joseph Tieffenthaler, a priest, and Robert Montgomery Martin, an Anglo-Irish author and civil servant, of 18th and early 19th century.
The verdict says the travelogues indicate four things: (i) "...the existence of faith and belief of the Hindus that the disputed site was the birthplace of Lord Ram" (ii) "Identifiable places of offering worship by the Hindus including Sita Rasoi, Swargadwar and the Bedi (cradle) symbolising the birth of Lord Ram in and around the disputed site" (iii) "Prevalence of the practice of worship by pilgrims at the disputed site including by parikrama and the presence of large congregations..." (iv) "The historical presence of worshippers and existence of worship at the disputed site even prior to the annexation of Oudh by the British and the construction of a brick-grill wall in 1857." (page 908)
And then, the verdict adds the following caveats: That "the accounts of the travellers must be read with circumspection"; "their personal observations must be carefully sifted from hearsay - matters of legend and lore" and that "Consulting their accounts on matters of public history is distinct from evidence on a matter of title. An adjudication of title has to be deduced on the basis of evidence sustainable in a court of law, which has withstood the searching scrutiny of cross-examination". (emphasis added, page 908)
About the gazetteers, it says: "Similarly, the contents of gazetteers can at best provide corroborative material to evidence which emerges from the record." (page 908)
Taken together, the travelogue and gazetteers, the verdict concludes: "Title cannot be established on the basis of faith and belief above." (emphasis added, page 908)
The land and revenue records had already been disposed of as of no significance earlier: the revenue records by keeping in mind "the fundamental principle of law that revenue records do not confer title" (page 886) and the land records from the emperor Babar's time being undated, "on the basis of testimony" and about "land free grant" of Rs 302, 3 ana and 6 pai "for meeting the expenses and the salary of "Muezzin and Khateeb", not a title to the land. (page 793)
(The next part of the series will examine how the balance tilted in favour of the "deity of Lord Ram")
