'Balanced' in favour of the majority?

On 9th November, 2019, the Supreme Court delivered, what has been revered as a very “balanced” verdict, in the decades long Ayodhya land dispute. The Supreme Court unanimously held that the entire disputed land of 2.77 acres in Ayodhya must be handed over for the construction of Ram Mandir. The Court further decided to allot an alternate plot of 5 acres to the Sunni Waqf Board for construction of mosque in order to “provide restitution to the Muslim community for the unlawful destruction of their place of worship.”The Ayodhya dispute is essentially, the claim of ownership, by the Hindu and Muslim community over a piece of land admeasuring 1500 square yards in the town of Ayodhya.

The said dispute has traversed the Mughal empire, colonial rule and the present constitutional regime of the secular and democratic India. There were four civil suits with regards to the same which were transferred by the Allahabad High Court to itself for trial from the civil court. The challenge before the Apex Court was against the 4304 page judgment of the Full bench of the Allahabad High Court dated 30 September 2010. In determining the title dispute, the Supreme Court consistently maintained a position that it cannot take a stance which grants primacy to the faith and belief of a single religion as the basis to confer judicial insulation.

It further goes on to state that,  “From Shahid Gunj to Ayodhya, in a country like ours where contesting claims over property by religious communities are inevitable, our courts cannot reduce questions of title, which fall firmly within the secular domain and outside the rubric of religion, to a question of which community‘s faith is stronger.”

“Secularism as a constitutional value”

The Court has emphasised, in different parts of the judgment, the need to preserve Constitutional values, particularly that of ‘secularism’. The judgement refers to ‘The Places of Worship Act’ which was enacted in 1991 by Parliament to protect and secure the fundamental values of the Constitution. The Act stipulates that the religious character of a place of worship as it existed on 15 August 1947 shall be maintained as it existed on that day and that the violation of the same would be a punishable offence. The Court in no uncertain terms stated that, “History and its wrongs shall not be used as instruments to oppress the present and the future." 

“The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution. There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law into their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.”

If law is the means, justice is the end

The principles of justice, equity and good conscience was raised by Rajeev Dhavan, Senior Counsel appearing on behalf of the plaintiffs in Suit 4¹. He contended that since there are significant gaps in positive law, the court ought to apply the said principles of justice, equity and good conscience. The Romano-canonical origins of the said concept, Aristotle’s understanding of the same as written in his “Ethics”, how that notion was an inspiration and foundation of the Western legal tradition of equity and thereafter the inroads of application of ‘justice, equity and good conscience’ to India with colonial rule in Bombay was analysed by the court.

The court further noted that Equity, as an essential component of justice, formed the final step in the just adjudication of disputes in India. It was observed that ‘justice, equity and good conscience’ plays a supplementary role in helping the court to give relief in the given circumstances to ensure a just outcome. The court noted that Article 142 also empowers to court to apply the principles of equity, in order to do “complete justice”, when the strict application of the law is inadequate to produce a just outcome.

Having established the principles on which the dispute would be decided, the verdict has defied its own observations. There is immense contrariety in the principles of law, as laudably stated by the court, and the application of those principles in arriving at the verdict. Though the judgement stresses the need of a secular approach to deciding the title dispute, it inadvertently has blurred the lines between mythological evidence² and historical evidence. Mythology may well be relied on in determining the faith, but can faith be relied upon to determine title?

The net result, as it emerges from the evidentiary record, the court states at para 788 (XVIII), thus:

• The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century.
• The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.
• The inner courtyard has been a contested site with conflicting claims of Hindus and Muslims.
• The existence of the structure of the mosque until 6 December 1992 does not admit any contestation. The submission that the mosque did not accord with Islamic tenets stands rejected. The evidence indicates that there was no abandonment of the mosque by Muslims. Namaz was observed on Fridays towards December 1949, the last namaz being on 16 December 1949.
• The damage to the mosque in 1934, its desecration in 1949, leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law.

The Supreme Court then states that, the Hindus have established a clear case of a possessory title to the outside courtyard by virtue of long, continued and unimpeded worship at the Ramchabutra and other objects of religious significance. However, the Hindus and the Muslims have contested claims to the offering worship within the three domed structure in the inner courtyard.

ASI Report - temple wasn’t demolished to build the Babri Masjid!

During the course of the hearings before the High Court, it had issued directions on 23rd October 2002 to the Archaeological Survey of India (ASI) to carry out a scientific investigation and have the disputed site surveyed by Ground Penetrating Technology or Geo-Radiology (GPR). Since there were some anomalies in the report submitted, the High Court directed the ASI on 5th March 2003 to undertake the excavation of the disputed site. On 22 August 2003, the ASI submitted its final report. It must be noted that in the suit instituted by the Sunni Central Waqf Board³ and in suits instituted by the deities⁴, one of the core issues was whether the temple at the exact birthplace of Lord Ram was in fact demolished to build disputed structure of a mosque.

The Allahabad High Court had inferred from the ASI report that since the foundation of the erstwhile structure was used for the construction of a mosque, the builder of the mosque would have been aware of the nature of the erstwhile structure and its foundation while constructing the mosque. The Supreme Court however observed that, “This is an inference which the High Court has drawn though that is not a specific finding which the ASI has returned in the course of its report."

In fact, the Supreme Court states that the ASI findings could not be the basis of awarding title in a land dispute. It is however pertinent to note that the court categorically states that findings could show no evidence that between the 12th century and 16th century a pre existing structure was demolished for construction of a mosque. Para 788 (III) of the judgement states that-

“A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI. Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries. No evidence has been placed on the record in relation to the course of human history between the twelfth and sixteen centuries. 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. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial.”

It is perturbing, that even though the court has observed that there is no evidence available to show that any such demolition of a Ram Mandir at the purported “Ram Janmabhoomi” was ever done to construct the Babri Masjid, it has proceeded to give away disputed land for construction of the temple.

Accounts of travelogues

Reliance was placed by the mahant of the Nirmohi Akhara, an organisation of Hindu ascetics, on set of literary and official documents, including the accounts of European travelers and British gazetteers, relating to the disputed site since the 18th century to establish his right to worship at the assumed Ram Janmasthan. With regards to this evidence, the court cautioned, “Beyond the above observations, the accounts of the travellers must be read with circumspection. Their personal observations must carefully be sifted from hearsay – matters of legend and lore.

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...The court must be circumspect in drawing negative inferences from what a traveller may not have seen or observed. Title cannot be established on the basis of faith and belief above. Faith and belief are indicators towards patterns of worship at the site on the basis of which claims of possession are asserted. The court has evaluated the rival claims to possessory title in a situation in which the state has expressly stated in its written statement that it claims no interest in the land.

”Both the Hindus and the Muslims, could not conclusively establish title over the disputed land, therefore the court decided to adjudicate the dispute based on possession.

Unjust application of law?

The possession of the disputed land was eventually decided based on the patterns of worship. It is pertinent to note that the court's decision to give the title of the inner courtyard to the Hindus, is based on a preponderance of probability. However, the Muslims were expected to show strong undisputed evidence of offering namaz in the Mosque, built in 1528 by Babur, during the Mughal rule, from its construction to 1857.

Curiously, the court observes in para 192 that, “It is true that in matters of faith and belief, the absence of evidence may not be evidence of absence”, yet a very heavy burden of proof was placed on the Muslims to show evidence of exclusive possession and their “absence of such evidence” was treated as “evidence of absence”.

The court held that, “As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857.” Was “pattern of worship” indicated by the travellers relied upon, when the court itself cautioned circumspection on the same?

Moreover the judgement states that, “acts of the parties subsequent to the annexation of Oudh in 1856 form the continued basis of the legal rights of the parties in the present suits and it is these acts that this Court must evaluate to decide the present dispute.”

“652. 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. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate. However, the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of the rights and liabilities on the basis of our ideology, our religion, the colour of our skin, or the century when our ancestors arrived at these lands, and submitted to the rule of law... With respect to the disputed property, it is evident that the British Sovereign recognised and permitted the existence of both Hindu and Muslim communities at the disputed property upon the annexation of Oudh in 1856. This culminated with the construction of the railing in order to maintain law and order between the two communities. The acts of the parties subsequent to the annexation of Oudh in 1856 form the continued basis of the legal rights of the parties in the present suits and it is these acts that this Court must evaluate to decide the present dispute.”

Why then was a probable worship by Hindus and lack of it by Muslims, in the disputed land, prior to the annexation of Oudh by the British in 1857, even considered as evidence? Again to establish a “pattern of worship” to determine possession?

Another curious fact is that Babur, a Mughal emperor, built a mosque in 1528 and the said mosque existed for three centuries as his descendants ruled that area. Why then, did the ‘preponderance of probability’ to establish worship, not bend towards Muslims, for being in possession of, and offering namaz in, the mosque which was built and existed during the Mughal rule?

Though Supreme Court does state that since 1857, Muslims had been offering prayers at the mosque and did not abandon it until 1949, when Hindu idols were illegally placed under the dome of the mosque. Yet this did not seem to have added any value to the claim of Muslims over the disputed land.

“Continued assertion of rights by the Hindus”

The Court observed that even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard. According to the judgement in Para 785, the evidence reveals significant features worth noting, some of them are as follows: 

• That the setting up of a buffer in the form of the grill-brick wall did not amount to an absolute exclusion appears from sporadic incidents such as the incident involving the setting up of a flag and the performance of havan and puja by the Nihang Singh within the precincts of the mosque. It must be noted that Nihang Singh was evicted following the intervention of the authorities of the state.
• In 1934, there was yet another communal riot during the course of which the domed structure of the mosque was damaged. This led to the imposition of a fine on the Hindu residents of Ayodhya and the work of restoration being carried out at the expense of the colonial administration through a Muslim contractor. This indicates that while the Hindus had continued to offer worship continuously in the outer courtyard, there was no abandonment of the claim by the Muslims of the status of the structure inside the inner courtyard as a mosque. After 1934, there is documentary material to indicate that arrangements were made for the appointment of a Pesh Imam and Mutawalli for the mosque which would belie the notion that there was an abandonment of the mosque;
• On 22/23 December 1949, idols were installed below the central dome of the inner structure which, according to the Muslims, led to the desecration of the mosque. Prior to this, the last namaz was offered on Friday, 16 December 1949. The Friday namaz due on 23 December 1949 could not be offered due to the intervening desecration of the mosque.

While marshaling the said evidence the Supreme Court states that, “VIII. Hindu worship at Ramchabutra, Sita Rasoi and at other religious places including the setting up of a Bhandar clearly indicated their open, exclusive and unimpeded possession of the outer courtyard. The Muslims have not been in possession of the outer courtyard. Despite the construction of the wall in 1858 by the British and the setting up of the Ramchabutra in close-proximity of the inner dome, Hindus continued to assert their right to pray inside the three-domed structure;”

Most unfortunately, it appears that the Supreme Court has accorded possessory title to the Hindus because of their “continued assertion of rights” over the disputed land - by preventing or harassing Muslims when they proceeded to the mosque to offer namaz; illegally setting up of a flag and the performance of havan and puja; destroying a part of the mosque in 1934 which led to repairs and the imposition of fines on the Hindus; “desecration” of the mosque on 22/23 December 1949; and demolition of the mosque on 6 December 1992 in violation of the status quo orders of this Court.

It is important to go back to the basic principles of the law that the court reiterated and emphasized in the judgment. The judgment states the need of application of equity to do complete justice. However, what seems to be missing in this application of equity is another very significant principle of equity - “one who seeks equity must do equity” and “He who comes into equity must come with clean hands.”

The Supreme Court also very promisingly states that, “history and its wrongs shall not be used as instruments to oppress the present and the future.” However, in spite of the judgment acknowledging that,  “...the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago” the court itself has now asked for a Ram Mandir to be constructed in the disputed land of 2.77 acres. In order to seem fair, the Supreme Court does allot an alternate plot of 5 acres for construction of the mosque, but that too was done in order to restitute the Muslim community for the blatantly illegal and unlawful demolition of its mosque.

It is ironic that this was an offer that  the Hindu parties have themselves made in the past, where they suggested that the inner courtyard was theirs and hence the mosque as it existed then must be demolished; and that they would offer another site in Ayodhya for construction of the Masjid. The Hindu parties have in fact been vindicated by the verdict in some ways. Even though the court has rightly held the reprehensible and unforgivable acts of 22nd/23rd December, 1949 and 6th December, 1992, to be unpardonably illegal, it has now legally paved way for constructing the temple which the demolishers of 1949 and 1992 sought in the first place.

While concluding the Supreme Court states, “The law must stand apart from political contestations over history, ideology and religion.” There is a consistent reassurance that the court has been giving through the judgment  to the citizens, and probably to itself, that the court is sworn to the Constitution and its values. It does not want us to forget that at the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. We repeatedly read in the judgement that Constitution does not make a distinction between the faith and belief of one religion and another. However, as one reads the relief granted by the court and the evidence relied upon for the same, one does wonder if the balance of justice is tilted towards one side?

The general sentiment, at least as largely portrayed in media, is that the historic Ayodhya verdict of 9th November, 2019 has been accepted by all, including the Muslims. It has been hailed as a very balanced verdict which has given some finality to this long pending dispute. However, the questions that remain are worrying and pertinent at the same time - Has complete justice been done? Which party was the verdict just to? What was the judgment decided on, if not faith? Have the wrongs of history been corrected or rewarded? Did the law really 'stand apart from political contestations over history, ideology and religion?'

_{The author is a practicing High Court lawyer.}

_Footnotes:

_{1.  OOS No. 4 of 1989 - instituted on 18 December 1961 by the Sunni Central Waqf Board and nine Muslim residents of Ayodhya.}

_{2.  Reference to the addendum makes it more clear.}

_{3. Issue 1(b) in OOS No. 4 of 1989 as follows : ―Whether the building had been constructed on the site of an alleged Hindu Temple after demolishing the same as alleged by defendant no. 13? If so, its effect?}

_{4. Issue No. 14 in OOS No. 5 of 1989 reads as follows : ―Whether the disputed structure claimed to be Babri Masjid was erected after demolishing Janma Sthan Temple at its Site?}