Bones of contention

Experts say that not all the facts that emerged during excavations at Ayodhya were taken into account in the verdict given by the High Court.

THE verdict delivered by the Lucknow Bench of the Allahabad High Court on September 30 on the Ayodhya title suit has been a subject of debate and discussion among social scientists, activists and legal experts. Faith and Fact: Democracy after Ayodhya Verdict, a symposium held in New Delhi from December 6 to 8 and organised by Social Scientist, the Safdar Hashmi Memorial Trust (SAHMAT) and Communalism Combat, dealt with the verdict's ramifications, including its consequences for the country's plurality and secularism, one of the basic tenets of the Indian Constitution that is unalterable even by the legislature.

Historians such as Irfan Habib, Shireen Moosvi and Syed Ali Rezavi drew on historical and archaeological evidence to show that many facts were not taken into account in giving the judgment, while the flawed report of the Archaeological Survey of India (ASI) was. Legal experts lamented the deep-rooted social and religious biases among members of the higher judiciary and the implications that this had for democracy in India. The occasion was marked by the release of a significant publication by the Aligarh Historians Society, titled History and the Judgement of the Allahabad High Court (Lucknow Bench) in the Ramjanambhumi-Babri Masjid case. In its preface, Irfan Habib wrote: The operational part of the majority judgment derived not from Justice S.U. Khan's, but from Justice Sudhir Agarwal's reading of the historical background.

The ASI's excavation report of 2002 formed the crux of the judgment. Rezavi explained, with the help of slides, how the Babri Masjid could not have been made at a time later than the 15th century and that it was not constructed by the later Mughals as alleged. Irfan Habib, who is also the president of the Aligarh Historians Society, spoke of the ASI's conduct and said that it was surprising that while the idols were assumed to be those of Ram Lalla, the Babri Masjid was referred to as an alleged mosque.

The ASI's report talked of finding pillar bases in its excavations. Rezavi, who was one of the three archaeologists appointed by the court as observers during the excavations, said that many of the ASI's actions were disturbing. He said that minaras, or minarets, came much after Babar's time and that the argument that all mosques had minaras and the Babri Masjid was not a mosque as it did not have one was flawed. These structures appeared from Shah Jahan's time. Even the defined arch, he explained, emerged only during Aurangazeb's and Akbar's regimes. In Babar's period, they were still trying to perfect the arch, he said. The main archway of the Babri Masjid and the heaviness of the structure were ideas borrowed from the Iranian tradition, he said. The material used in the Babri Masjid, surkhi (according to an established glossary this means pounded brick mixed with lime to form a hydraulic mortar) and lime alternating with rubble and calcrete was used in many structures in Ayodhya such as makbaras and mausoleums.

Rezavi, who calls himself a historian rather than an archaeologist, said that the pillars found at the site were decorative ones inserted in the archway and could not support any structure. None of the pillars, including the free-standing ones, resembles each other. They could have been got from anywhere else and used as decorative pieces. The existence of pillars does not mean that there was no mosque, he said, citing examples of existing mosques and Mughal structures that have pillars that are not used for decorative purposes but for supporting the roof. Fatehpur Sikri in Agra, Jama Masjid in Delhi and structures in Jaunpur, which typified Mughal mosques, used pillars, he pointed out.

Irfan Habib said that the Babri Masjid was supposed to be a protected monument. On the orders of the Bench that the ASI seek expert opinion, the ASI deployed the services of a company called Tojo-Vikas International Limited to undertake geological surveys. He quipped: Ignorant as the ASI was of history, it got in touch with a company with the name of Tojo. Hideki Tojo was Japan's political and military leader who ordered the attack on Pearl Harbour in 1941.

The Indian History Congress had protested when the Bench ordered the excavation to see if there was any structure below the mosque. The High Court had ruled that the exercise would be undertaken by five eminent archaeologists, including two Muslims. The first thing the Government of India did when the ASI was assigned the task was to change the Director-General of ASI. The then Bharatiya Janata Party government got a pliant DG, Habib said. The nomenclature of the Bench as referred to in the ASI itself changed; from being referred to as the Babri Masjid-Ram Janmabhoomi Bench, it became the Ram Janmabhoomi Bench. A team leader was selected, and of the 20 experts, only one was a Muslim.

Even before the excavation, the religious colour of the excavation was established. The Bench took notice of this and asked the ASI to remedy it. Religion was not as important as public confidence was. In fact, more non-Muslim archaeologists and historians were representing the Sunni Waqf Board, he said.

Of a total of 89 labourers, only nine were Muslims, and the ASI continued to defy the orders, said Habib. It was obvious that their conduct was not above board, he said. The matter took a serious turn when the ASI did not record the glazed ware, bones and fragments that appeared while digging the trenches. The Bench ordered that the matter should be sealed. All this reflects in Justice Sudhir Agarwal's judgment, but he does not mention it, he said. The Bench then passed an extraordinary order that called for the appointment of a new team leader. The existing leader, B.R. Mani, was made Director, Excavations. While Justice Sudhir Agarwal's judgment makes no note of the observations by the Bench, it took a serious view of the violations by the ASI. It was only because of the monitors appointed by the Bench that the truth came out, said Habib, adding that Justice Agarwal was irritated by complaints by the monitors regarding the ASI's behaviour. It does not irritate him that the ASI was committing violations, he said.

Judicial censures, especially motivated ones, he said, should not matter to historical experts. The monitoring did not go in vain; the ASI was forced to record the glazed ware and other findings. The ASI report is motivated; it has concealments and defiance. It provides no concordance with layers and trenches; one just has to take their word for it, he said. On the ASI's finding of pillar bases, he said that the ASI claimed to have found pillar bases with brickbats.

It is interesting that B.R. Mani's own report on Lalkot where stone bases were found and were said to be weak enough to hold a canopy, in Ayodhya, brickbats can hold pillars, said Habib. The assertion that the remains of 50 pillars were found was also specious because it was not supported by the finding of an equivalent number of slabs. Where did they all go? Pillars are supposed to be there and cannot be found. The question is why should pillar bases be associated with Hindus and not Muslims. All this was submitted as evidence by R.C. Thakran, but it was ignored. Not only pillars are Hindu, even circles are. The area denoted as a circular shrine despite its Lilliputian size was given gigantic importance in the judgment, he added.

The presence of bones could have been an indication of human habitation, especially by the poor; it could not have been a temple, let alone the Ram Janmabhoomi temple, he said. There was no proof of animal sacrifice; without citing any authority on the subject, Justice Agarwal in his order emphatically stated that it was a well-known fact that in certain Hindu temples, animal sacrifices are made and flesh is eaten as prasad while bones are deposited below the floor at the site. No evidence has been found of the Kali cult in the Upper Gangetic Basin where Ayodhya is situated, said Habib. On the contrary, the presence of glazed ware and bones showed that the land adjacent to the walls and the main structure remained open, as would be the case with an Eidgah or Qanati (with much open land) mosque, so that the waste matter could be thrown there. The presence of glazed ware itself was a clincher of Islamic presence.

In the three centuries preceding 1528, argue the Historians' Forum, Ayodhya, or Awadh, was a city with a large Muslim population along with Hindu inhabitants, and given the dietary customs of the two communities, an abundance of animal bones would weigh heavily in favour of a Muslim presence in the immediate vicinity of the disputed site. The historians felt that the court should have asked the concerned plaintiffs what proof there was that a temple existed. To have merely asserted that the remains beneath the Babri Masjid were religious was not sufficient in itself as such a structure could be theoretically Islamic, Jain, Buddhist or even Saivite, given the presence of animal bones. Neither were any significant remains of a massive Hindu or Vaishnavite temple, images or stones with sculptured divinities, vandalised or otherwise, found in the excavations. On the basis of very limited evidence, stones and bricks, the idea of an entire temple was constructed. The detailed notes were deleted from the computer, as reported to the Bench by the ASI.

Historians baffled

The historians were baffled by the opinion of Justice Agarwal with respect to Islam where he is supposed to have said: Whatever we had to suffice it to conclude that the incidence of temple demolition are [ sic] not only confined to past but is going in [ sic] continuously. The religion which is supposed to connect all individuals with brotherly feeling has become a tool of hearted [ sic] and enmity. How can a historian answer in either yes or no, asked Shireen Moosvi, one of the authors of the document. Moosvi was cross-examined by the Bench.

Legal experts like B.A. Desai, Mihir Desai and Anupam Gupta and retired judges like P.B. Sawant and Hosbet Suresh felt that the act of demolition was a clear contempt of court and those responsible for that should have been put behind bars. They expressed concern as to how certain judgments had interpreted Hindutva and given legitimacy to acts perpetrated under its name. B.A. Desai, who was also the former Additional Solicitor General of India, wrote in his paper that Hindu communal forces had looked upon Justice Verma's judgment ( Manohar Joshi vs N.B. Patil) as the judicial imprimatur of its divisive ideology, where the judge found that the statement of Manohar Joshi that the first Hindu state will be established in Maharashtra did not amount to appeal on the grounds of religion. Desai said that the judge did not find anything wrong in the election speech of Manohar Joshi, a Shiv Sena leader, and held that in our opinion, the mere statement that a Hindu state will be established in Maharashtra is by itself not an appeal on the ground of his religion but the expression at the best of such hope.

Mihir Desai pointed out how derogatory statements of another senior Shiv Sena leader about Muslims were interpreted by the High Court as having referred to only anti-national Muslims. The High Court held a view that even the Shiv Sena leader did not harbour, said Desai. The order was challenged in the apex court, which turned down the appeal. Justice Hosbet Suresh lamented that the courts often favoured the majority community. I could never imagine that this kind of a judgment could be delivered. If faith is to be the rule of law, it would affect democracy ultimately, he said.

Justice P.B. Sawant felt that all the key institutions in the country were being run by the ruling classes. As a citizen, lawyer and judge, I have yet to come across a case where a person belonging to the ruling class or supporting a ruling class has been convicted and a victim has got justice. The Lucknow Bench has committed three grave injustices. One, it converted a title suit to a partition suit; two, instead of giving a judgment, it gave a compromise that was not sought by anybody; and three, it made its basis faith and not law, he said.

The basis of democracy was the rule of law and if that got substituted by faith, then the outcome would be disastrous, he said. All the legal experts were unanimous that in the interests of democracy and secularism, the judgment needed to be reversed. Let us hope the Supreme Court sets things right. Had the apex court given this kind of a judgement, where would we have gone? It is now the Constitution which is at stake, he said.