Ayodhya verdict

Secularism at stake

Print edition : December 06, 2019

December 10, 1992: The makeshift Ram temple at the disputed site after the destruction of the Babri Masjid. Photo: THE HINDU ARCHIVES

The Supreme Court’s judgment in the Babri Masjid case dashes the hope that it will uphold its counter-majoritarian character.

The Supreme Court of India rewrote Indian secularism on November 9. While it acknowledged that all religions are equal before the Constitution the tacit message was that Hindus are more equal than other religionists. While adjudicating the claims of Hindus and Muslims over the disputed land in Ayodhya, the court exercised its power under Article 142 of the Constitution, “to do complete justice in any cause or matter pending before it”, to render a judgment on the basis of faith rather than on legal principles. Most supporters of the judgment considered the absence of street protests against it as vindication of its legitimacy. But to many objective observers, the court’s counter-majoritarian character, which the framers of the Constitution had envisaged, stood seriously compromised by the judgment. Several others felt it was a chilling message to all minority communities that the “equality” guaranteed by the Constitution could be different in practice.

There were ominous signs when the five-judge Constitution Bench assembled on the morning of November 9, a Saturday and a holiday, to pronounce the verdict in M. Siddiq vs Mahant Suresh Das, involving several appeals against the Allahabad High Court’s 2010 judgment in the Babri Masjid-Ram Janmabhoomi title case. Although it was known that the judgment in the Ayodhya case would be delivered before Chief Justice of India (CJI) Ranjan Gogoi retired on November 17, none expected the bench to deliver it on a Saturday. The momentous occasion was filled with suspense, with a few surprises waiting to be discovered.

The bench comprising the CJI and Justices S.A. Bobde, Dhananjaya Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer unanimously decided the case on a preponderance of probabilities in favour of the Hindu deity, Ram Lalla, while acknowledging that Muslims had used the site as a mosque earlier.

The bench directed the Centre to form a trust within three months for the construction and management of a Hindu temple to be built at the site, which, it decided, belonged to one of the three parties to the dispute, namely, Shri Ram Virajman (idol), which was first represented by its “next friend”, Deoki Nandan Agarwala, and later by Triloki Nath Pandey. Both Agarwala and Pandey are associated with the Vishwa Hindu Parishad (VHP), an affiliate of the Sangh Parivar. The VHP played a leading role in the demolition of the Babri Masjid on December 6, 1992, and in the building of a makeshift temple in its place subsequently. Both Agarwala and Pandey submitted that the site (where the Babri Masjid stood) had been worshipped as the birthplace of Ram since time immemorial and, therefore, no other party could assert its ownership as it is a deity.

The bench then directed the government to give the Uttar Pradesh Sunni Central Waqf Board, which claimed exclusive ownership of the Babri Masjid before its demolition and the adjacent land on behalf of the entire Muslim community, a five-acre (two-hectare) plot elsewhere in Ayodhya, so as not to deprive Muslims of their right to worship. The bench also directed the Centre to ensure that the Nirmohi Akhara, which claimed to be in continuous possession, control and management of the disputed site over the centuries, had adequate representation in the proposed trust.

According to reports, the CJI had consultations with those in charge of law and order in Uttar Pradesh in order to satisfy himself about the State’s preparedness to manage a possible disruption of law and order. With the Babri Masjid having been destroyed in 1992, the minority community received the news of the judgment with a mixture of maturity and exasperation.

The surprise over the timing of the judgment soon led to disappointment over its substance. In 2010, the Lucknow bench of the Allahabad High Court divided the title equally among the three parties, the Nirmohi Akhara, Bhagwan Shri Ram Virajman and the Waqf Board. Soon, various litigants filed civil appeals and special leave petitions in the Supreme Court challenging the judgment. However, it was only in 2017 that the Supreme Court began hearing oral arguments in the case, and after a few twists and turns the present bench reserved its judgment on October 16. In terms of judicial time spent on hearing the case, the court held 61 days of hearing since August 2017. The bench that gave the verdict heard the case from August 6 and completed the hearing in 40 days.

The unanimous judgment did not carry the name of its author on the top, as is the usual practice of the court. In the normal tradition, one of the judges on the bench would author the main judgment, to which the rest would agree or dissent. The unexplained departure from the tradition soon led to bewilderment as the judgment was accompanied by an addendum, whose anonymous author is a matter of speculation. While the judgment was signed by all the five judges, the addendum was left unsigned, giving rise to misgivings about its legal status, even as it was an unabashed defence of why the disputed structure is the holy birthplace of Ram as per the faith, belief and trust of Hindus.

Given the court’s recent history of delivering multiple concurring judgments and dissents and the composition of the bench itself, the achievement of unanimity in the verdict was a rare feat. Those who followed the hearing expected a unanimous verdict from the bench for reasons that included the judges’ openness and zeal to find a viable solution to the vexed Ayodhya dispute. The bench had even suspended its hearing briefly to facilitate mediation by a court-appointed panel of three eminent persons. At stake was communal harmony, which was disrupted following the demolition of the Babri Masjid. Therefore, a unanimous verdict was considered imperative to facilitate the healing of wounds and restore confidence in the rule of law.

When the CJI began to read the summary of the judgment, he said that in a case like this it was inappropriate to go into theological questions and that the law should be above everything else. “A constitutional regime, which accepts equality of all religions, should be upheld,” he observed, giving rise to hopes that the Supreme Court would uphold its counter-majoritarian character. But the remaining part of the summary made one wonder whether the bench was consistent in adhering to what it preached as wholesome principles.

Genesis of the contested site

In most accounts, the legal dispute is traced to the night of December 22, 1949, when a set of idols of Hindu gods were placed surreptitiously under the dome of the Babri Masjid in the inner courtyard of the complex. Muslims considered it a desecration of the place of worship and so stopped offering prayers in the inner courtyard. The atmosphere in Ayodhya became tense. On December 29, 1949, a Faizabad court placed the site under the custodial responsibility of the state in order to control rising communal tensions in the area. The Additional Magistrate, Faizabad, issued an order under Section 145 of the Code of Criminal Procedure, 1898, and directed the site to be placed under the receivership of the Chairman of the Municipal Board. Declaring the site a “contested area”, the administration locked the entrance to the complex.

In 1950, two suits were filed in the Faizabad court, by Gopal Singh Visharad and Paramahans Ramachandra Das, seeking permission to conduct puja to Ram Lalla. Paramahans withdrew his suit in 1990. The court granted the parties permission to conduct puja, while ordering that the gates of the inner courtyard remain locked.

The Nirmohi Akhara filed a title suit (suit No.3) in 1959, seeking possession of the land. Both the High Court and the Supreme Court found the suit barred by limitation. The Nirmohi Akhara represents a religious sect among Hindus, known as Ramanandi Bairagis. Nirmohis claim that they were, at all material times, in charge of the management of the structure at the disputed site until December 29, 1949. In effect, they claimed the rights as a shebait (manager) in service of the deity, managing its affairs and receiving offerings from devotees. The Supreme Court has rejected this claim.

The Waqf Board and Muslim residents of Ayodhya instituted a suit on December 18, 1961, seeking declaration of their title to the site and removal of the idol of Rama. The High Court’s majority judges found the Board’s suit barred by limitation, while the Supreme Court held it within the limitation. The Supreme Court justified the Board’s suit because it was filed within a period of 12 years (as required by law) from December 23, 1949, when the act of ouster of Muslims from the mosque took place and when the mosque was desecrated.

On February 1, 1986, the Faizabad District Judge ordered the gates of the inner courtyard to be opened to allow Hindus to perform puja and have darshan of the idol. The court had to deal with another suit filed in 1989 by a next friend on behalf of the deity and the birthplace of Ram (Asthan Shri Ram Janmabhoomi). This was founded on the claim that the law recognises both the idol and the birthplace as juridical entities, personifying the divine spirit of Ram.

On July 10, 1989, all suits were transferred to the Allahabad High Court, which directed the parties to maintain the status quo with respect to the property in dispute. In 1993, the Central government acquired an area of about 68 acres (27.2 hectares), including the premises in dispute, by legislation called the Acquisition of Certain Area at Ayodhya Act, 1993, which envisaged abatement of all suits pending before the High Court. However, a Constitution bench of the Supreme Court in Dr M. Ismail Faruqui vs Union of India (1994) held Section 4(3) of the Act, providing for such abatement, unconstitutional.

The bench found that the plaintiffs in suit No.4 (filed by the Waqf Board) had come forth with a positive case with regard to the existence of a mosque, its construction by Babur 433 years before the institution of the case in 1961, and its use for offering prayers by Muslims.

One of the Hindu parties before the Supreme Court (the Hindu Mahasabha) urged it to embark on a journey into the theological doctrine and apply it to deduce whether the features prescribed by the Hadith for the location or construction of a mosque had been fulfilled in the case of the Babri Masjid. The court refused to do so and held that the true test was whether those who believe and worship have faith in the religious efficacy of the place where they pray. “The belief and faith of the worshipper in offering namaz at a place which is for the worshipper a mosque cannot be challenged,” the bench held. Taking note of Section 5 of the Places of Worship (Special Provisions) Act, 1991, exempting the Babri Masjid, and any suit, appeal or any proceeding relating to it from the purview of the Act, the bench said the Act guaranteed preservation of the religious character of places of public worship as they existed on August 15, 1947. By enacting this law, Parliament determined that independence from colonial rule furnished a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that its places of worship would be preserved and their character would not be altered. “The law addresses itself to the state as much as to every citizen of the nation,” the bench observed, seeking to allay apprehensions that its judgment in the Babri Masjid case might set a wrong precedent. The bench reminded the parties that historical wrongs could not be remedied by people taking the law into their own hands, and that history and its wrongs would not be used as instruments to oppress the present and the future.

The bench noted that the observations of Justice D.V. Sharma of the Allahabad High Court that Section 9 of the Act did not debar those cases where declaration was sought for a period before the Act came into force or for enforcement of a right, which was recognised before the Act came into force, were erroneous.

The bench held that the legal personality vested in the purpose of continued worship of the idol, and this helped provide courts with a conceptual framework within which to adjudicate disputes involving competing claims over disputed property endowed upon or appurtenant to Hindu idols. The law thus protects the properties of the idol even when no specific or express trust Is established, it reasoned.

The bench, however, refused to apply the concept of legal personality to places held sacred by a people and on immoveable property. “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,” the bench elucidated. It held that Ram Janmabhoomi was not a juristic person.

In paragraph 796, the bench admitted that it did 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. 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,”it explained.

However, in paragraph 797, it held: “On the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857. Their possession of the outer courtyard stands established together with the incidents attaching to their control over it.”

In paragraph 798, the bench stated: “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. 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 construction in the 16th century. After the setting up of the grill-brick wall, the structure of the mosque continued to exist and there is evidence to indicate that namaz was offered within its precincts…. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.”

Any reader of this paragraph cannot but see the inconsistency of the bench, which is left unexplained.

In paragraph 799, the bench referred to its conclusion that the three-way bifurcation of the site by the High Court was legally unsustainable, and added that it was not feasible even as a matter of maintaining public peace and tranquillity. “Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquillity,” the bench added, without citing any reasons for such a conclusion.

Rajeev Dhavan’s arguments

Senior counsel for the Waqf Board, Rajeev Dhavan, argued that historical texts could not be relied upon to make negative inferences. The fact that Baburnama does not mention a mosque in Ayodhya does not establish the fact that there was no mosque in Ayodhya. He offered the analogy of Marco Polo not recording the Great Wall of China in his travelogues, by saying that it does not follow that the Great Wall does not exist. The bench agreed with him in principle but cited the absence of proof for use of the mosque between the time of its construction and 1857, and did not hesitate to rely on it to reject the Board’s claims. Dhavan referred to the analysis of the 19th century British archaeologist P. Carnegie, who argued that Babur constructed a mosque. Further, he relied on the 1880 report by A.F. Millet, who makes a similar inference. Faith and religious scriptures were not relevant when adjudicating a rights-based dispute, Dhavan submitted. He referred to the Constituent Assembly Debates, where the drafting committee chose not to include the phrase “in the name of God” in the Preamble of the Constitution. This was a public dispute governed by public law. The site was vacant when a mosque was constructed on it. Hence, it was free to be occupied, he said, urging the court not to concern itself with pleas that it was built on the ruins of a temple.

Maintaining that right claims cannot be based on illegal acts, Dhavan said the Nirmohi Akhara could not base its management or possession rights on an illegal act. It was complicit in placing the idols under the central dome on December 22, 1949, he alleged. He questioned the locus of late Senior Advocate D.N. Agarwal, who filed a suit on behalf of Ram Lalla in 1989. He argued that as the Nirmohi Akhara had the right to manage the deity, it followed that it should represent the deity in court. The bench, however, disagreed. Dhavan argued that claims of Ram’s manifestations were limited to where Hindu worship took place. The plaintiffs in the original suit No 5 could not claim ownership or management rights on the basis of illegal placement of Hindu idols in the inner courtyard, he submitted.

The Waqf Board argued that the next friend could have sued on behalf of the deity only if the shebait was not functioning properly. The bench rejected this contention. Dhavan agreed that deities could gain juristic personality through self-manifestation (swayambhu), but submitted that it was not the case in Ayodhya. He noted that the Allahabad High Court had found that the Hindu scripture, Skanda Purana, did not establish the precise birthplace location of Ram. He argued that counsel for Ram Virajman over-relied on gazetteers and travel accounts to establish his birthplace and that the Babri Masjid was constructed on a demolished temple.

The bench found evidence for Hindu prayers offered at a railing installed in 1855. The British installed the railing in order to maintain peace, after which the Ram Chabutra became the focal point of Hindu worship. The bench asked if it was possible that before 1855, Hindus offered prayer in the central dome (inner courtyard). Evidence of this could include accounts of Hindus offering prayer at the railing in the direction of the mosque’s central dome, which was a mere 50-100 yards away.

Dhavan read out excerpts of statements and argued that there never existed a “unified belief” that prayers should be offered at the central dome. Further, he said there existed no evidence to suggest such a unified belief. He added that all the witnesses relied upon by counsels for Ram Virajman deposed after 2000, 11 years after Ram Virajman filed its suit. He suggested that the argument about the railing amounted to conjecture, and that suspicion could not amount to evidence. He stressed that it was the moral duty of a judge to decide a case on the basis of evidence and legal proof, not conjecture.

Dhavan also countered the claim that the Ram Chabutra arose after Hindus were displaced from the inner courtyard in 1855, when the British installed the railing. He referred to the accounts of the 18th century Jesuit missionary Joseph Tiefenthaler, who describes a possible precursor to the Chabutra. He describes a small bedi (cradle) in the approximate location of the Chabutra. He stated that there was no evidence that Hindu prayer was offered at the railings, facing towards the central dome.

Dhavan disputed the argument that the path of parikrama (circumambulation) followed by worshippers established the deity’s birthplace. He said that witness statements contradicted each other with regard to the path of the parikrama.

The Waqf Board did not dispute that Ram was born in Ayodhya, it only stressed that the deity was not born in the inner courtyard. Its counsel, Zafaryab Jilani, quoted an 1886 trial court order finding that Ram’s birthplace was at the Ram Chabutra.

Jilani referred to reports by Tiefenthaler, an extract of the 1815 East-India Gazetteer by Walter Hamilton, and a 19th century report by the Irish civil servant Montgomery Martin, which do not mention Ram Janmasthaan. He made a reference to an alternative birthplace of Ram and pointed to a lack of unanimous or “joint worship” by Hindus. He cited an imperial gazette that locates the birthplace at the disputed site. He stressed that the birthplace was at the outer courtyard.

Jilani submitted that there was no evidence to suggest that Hindus believed that the inner courtyard was above Ram’s birthplace before 1858. The bench had observed that Hindus might have worshipped in the outer courtyard because they were denied access to the inner courtyard. Jilani said there was no conclusive evidence that Hindus believed that the central dome was above the birthplace of Ram.

Preponderance of probabilities

Senior counsel C.S. Vaidyanathan submitted that it was unnecessary to determine the precise birthplace of Ram, by which he meant it was not important to delineate where within the boundaries of the disputed site the deity was born. Senior counsel K. Parasaran distinguished between Ram Janmabhoomi and Janmasthan: while the former refers to a general area, possibly “even the entire Bharat”, the latter refers to the precise birth location. If that is so, one wonders, why the bench emphasised Hindus’ belief that Ram was born at the inner courtyard.

When Vaidyanathan submitted that it could be reasonably inferred that the structure excavated beneath the mosque was Hindu, given Hindu faith in the structure, Justice Chandrachud suggested that the bench was not seeking an argument based merely on faith and belief.

A belief can be established in a court of law using the “preponderance of probabilities” principle, Senior Advocate P.S. Narasimha argued on behalf of the late Gopal Singh Visharad, who filed his suit in 1950, claiming the right to worship at the disputed site. He is now represented by his son, Rajendra Singh.

Dhavan sought to establish that Sunnis were in possession of the site since Babur’s time. He submitted that the British government issued a grant under the 1863 Religious Endowments Act, which recognised the building as a mosque. Justice Nazeer observed that the grant was only for upkeep and did not amount to a title grant. Dhavan agreed, but submitted that implicit in a grant of upkeep was the recognition that there was a mosque at the site. Justice Chandrachud asked Dhavan whether the grant changed the nature of the title as Babur had initially dedicated the mosque to Allah. Dhavan replied that the change in the sovereign did not change the nature of recognition, namely a mosque existed at the site.

Muslim possession of the site

He tried to show Muslim possession of the disputed site by taking the bench through several instances where Hindus and Sikhs, had allegedly attempted to encroach upon the mosques land. In particular, he discussed how Hindus had illegally constructed the Ram Chabutra in 1857. If the court found that Babur had built a mosque on the ruins of a temple, then the Sunnis should be found to be in adverse possession of the site, starting from when Babur constructed the mosque. Adverse possession entails claiming ownership of land that another party has the title to by having continuously occupied it. But the bench rejected this argument.

In the 1882 suit, the mutawalli of the Babri Masjid was denied his prayer to claim rent from the mahant using the Ram Chabutra in the outer courtyard. Dhavan observed that while the suit was dismissed, there was no challenge to the status of the mutawalli as the keeper of the mosque. Dhavan submitted that even before 1857, the Nawab of Awadh had recognised Sunni possession of the site. The Waqf Board’s continuous possession of the site was evidence of its ownership of the title. Continuous possession creates a presumption of the title, if there is no better claim over a property. No party had adversely possessed the title and hence it remained with the Board, he argued. Justices Bobde and Chandrachud asked Dhavan whether the Board’s claim to exclusive possession was diluted by the fact that Hindus enjoyed the right to enter and pray in the outer courtyard. Dhavan said Hindus only enjoyed a prescriptive right to pray, which did not transfer possession to them. Justice Chandrachud observed that there were documents that indicated that some Hindus lived in the outer courtyard.

In the 1885 suit, Hindus were denied ownership of the outer courtyard. When Justice Chandrachud observed that no declaratory relief for ownership was sought by the mahant in 1885, Dhavan asserted that praying for permission to construct a temple assumed ownership. In the final judgment, such nuances in the arguments are missing.

Dhavan asserted that belief and historical texts alone could not give the Hindu parties the title. He said the absence of prayer did not result in loss of title. A title can only be lost by adverse possession. Dhavan submitted that as of 1885 there was no instance of an adverse possession claim being made against the Board on the record. Cessation of Muslim prayer did not amount to adverse possession. The Babri Masjid enjoyed waqf status. Regardless of whether the site was dedicated, it was waqf by usage, he argued. But the bench concluded that the Board had not established its case of a dedication by user; nor did it meet the requirements of adverse possession.

Ruling that the disputed structure was one composite whole, the bench admitted that the inner courtyard had been a contested site. The Board’s suit was for both the land and the structure. Parasaran emphasised that the Babri Masjid was a regular mosque, whereas Ram Janmabhoomi was of special significance to Hindus. The Board submitted that its prayer for declaration survived the destruction of the masjid. It claimed that the land itself was a mosque, as Muslims could pray on open land. Parasaran submitted that even Hindus could pray in an open space without an idol.

Parasaran submitted that in 1885, the Faizabad District Judge had reasoned in favour of Hindus, in spite of denying a Hindu mahant permission to construct a temple in the outer courtyard. “It was unfortunate that a mosque had been built on a place considered sacred by Hindus, but that it would maintain status quo since so many years had passed,” he quoted the judge as saying.

Vaidyanathan argued that the Board could not claim possession by submitting that the site was used for prayers continuously. Justice Chandrachud observed that this could apply equally to the Hindu parties. The final judgment shows that this query from the bench remained unanswered.

In its quest for unanimity and a “viable” solution, the bench sacrificed consistency in its reasoning, and in the process, justice itself. Whether it is determination of the Board’s claim for adverse possession or continuous and unchallenged use of the Babri Masjid for worship through centuries, the bench relied on violence perpetrated by Hindu zealots in 1949 and 1992, to question it, notwithstanding its own condemnation of these incidents as illegal. The Muslims’ lack of interest in the outer courtyard of the complex is considered by the bench in defence of the Hindus’ claim of its uninterrupted use, while the stray acts of worship in the inner courtyard by a few devotees are found as evidence of Hindus’ belief that Ram was born there, thus questioning Muslims’ exclusive use. Again, although the bench admits the fact of Muslims’ use of the inner courtyard for worship, it points out that its use was not uncontested because of these incidents. It ignores the instances of Muslims opposing the misuse of the outer courtyard by Hindus, which the bench has sincerely chronicled in Paragraph 684.

When the bench realised the inconsistency, it invoked Article 142 to offer land to the Board to build another mosque in Ayodhya. “While determining the area of land to be allotted, it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship,” the bench observed. What would “restitution” mean in law and can the offer be construed as restitution in real terms or is it merely condescending? The bench appeared not concerned, too, with the likely impact of its judgment on the ongoing criminal trials against the accused in the Babri Masjid demolition case. Merely describing the act of demolition as illegal, while rewarding those responsible for it, is unlikely to achieve the object of healing the wounds, which the bench’s unanimous verdict might have intended.

The author acknowledges with gratitude Supreme Court Observer—scobserver.in—run by the Centre for Law and Policy Research, Bengaluru, for the account of the hearings in the Ayodhya case.