Ever since the historic verdict of 9th November 2019, a section of the Press and Op-eds are replete with comments / remarks that the verdict stands more on faith than law. Articles penned by leading scholars, vice chancellors, professors, journalists are pushing a view that the Sunni Waqf Board (plaintiff in Original Suit No.4) was meted a raw deal and burden of proof to be discharged was unequal. It is essential to set right such deceptive misinformation being spread in the garb of opinion. When the Hon’ble Supreme Court of India has achieved the impossible, in solving the 500 years old dispute, to presume all evidences were thrown to the winds is ostentatious.
Faizan Mustafa in an article titled Ayodhya judgment is a setback to evidence law” (dated 10.11.19 published in the Indian Express) calls it a Victory of Faith over Rule of Law. Let us dissect the observations of the Hon’ble Supreme Court to answer Mr. Mustafa’s charges:
Were Principles of Evidence Law undermined to give precedence to Faith?
Under Indian Evidence Act, 1872, for any “fact in issue” parties can lead evidence by way of oral or documentary evidence, except that which is hearsay. The trial court record placed before the Supreme Court comprised of 533 documentary exhibits comprising of religious texts, travelogues, gazetteers, translation of inscription on pillars, reports of archaeological excavation, photographs, and details of artifacts, as well as oral depositions of 88 witnesses.
That it was an undisputed fact that Bhagwan Ram was born in Ayodhya. But whether there was an exact place of birth or “Janmasthan” as per the evidences was the contentious part. Regarding the latter, travelogues, gazettes were taken into consideration as evidentiary material apart from plain belief and faith of the witnesses. Travelogues of Tieffenthaler, Cunningham and gazetteers such as the Imperial Gazetteer of India (1908), District Gazetteer of Faizabad (1960) held that birth place of Bhagwan Ram was indeed where the Babri mosque stood. The Supreme Court after correctly separating the hearsay versions, at Paras 588, 589 held that travelogues and gazettes though would not be used to decide on the title conclusively but will certainly carry evidentiary weight as corroborative material in accordance with Sections 37 and 81 of the Indian Evidence Act, 1837. The Supreme Court also quoted various case laws to buttress the evidentiary weight of travelogues, gazetteers and at the same time dismissed a document dated 13.5.1991 prepared by four historians titled “Babri Mosque or Rama’s Birth Place? Historians Report to the Indian Nation” which had concluded that Babri Masjid was not the birth place of Ram.
A Hindu Structure Underneath
On 1.8.2002 the High Court had proposed that an excavation be carried out by Archaeological Survey of India (ASI). ASI submitted its final report on 22.8.2003. In order to maintain objectivity and sub-serve the confidence of the parties, the High Court had ensured adequate representation to both communities in respect of functioning of the ASI team and engagement of labourers. The excavation work was also carried out in presence of the parties and their counsel. Findings of the ASI Report were as follows:
- At Para 453, the judgment records that as per ASI Report structural activities in the excavated area had commenced from the Kushan period (first century B.C.) and continued in the Gupta and post Gupta periods (tenth century A.D.).
- During the Medieval period (from the twelfth to the beginning of the sixteenth century A.D) a circular depression facing the central part of the disputed structure was found where ‘Ram Lalla’ was enshrined.
- At Para 454 the judgment records Chapter IV of the ASI Report wherein its stated “the decorated octagonal sand stone block on pillar base 32 having floral motif on the four corners in trench F7 in the southern area is the unique example at the site which definitely belongs to the twelfth century A.D. as it is similar to those found in the Dharmachakrajina Vihara of Kuramaradevi at Sarnath which belongs to the early twelfth century A.D.”
- A circular structure was also found on the east side having a pranala to drain out water after Abhishekha of the deity. This was similar to ASI excavations carried out at Sravasti and at Rewa.
- During the early medieval period (eleventh– twelfth century A.D.) a huge structure was constructed which was short lived. On its remains, “a massive structure with at least three structural phases and three successive floors attached (having minimum dimension of 50×30 m in north south and east-west directions) having huge pillared hall meant for public usage” was constructed. It was directly on top of this preceding construction that the disputed structure was constructed.
- The ASI Report concluded that “in view of the totality and taking into account the archeological evidence of a massive structure just below the disputed structure and evidence of continuity in structural phases from the tenth century onwards upto the construction of the disputed structure along with the yield of stone and decorated bricks as well as mutilated sculpture of divine couple and carved architectural members including foliage patters, amalaka, kapotapali doorjamb with semi-circular pilaster, broken octagonal shaft of black schist pillar, lotus motif, circular shrine having pranala (waterchute) in the north, fifty pillar bases in association of the huge structure, are indicative of remains which are distinctive features found associated with the temples of north India”
The Supreme Court observed that the High Court committed an error by not considering the ASI Report at all especially when the High Court itself had directed it. The Supreme Court further observed that the purpose of the excavation was to ascertain whether there was any structural activity underneath the disputed site, and if any of it was of religious nature. The High Court had observed that there had been marked change in the stance of the Sunni Central Waqf Board (Plaintiffs in Suit No.4) wherein initially it was contended that the mosque was constructed at a vacant place / on which there was no existence of a Hindu religious structure, which, once the ASI excavation progressed, changed and a new case was sought to be set up as an afterthought that the structure underneath was a “Idgah” or “Kanati Masjid”. The High Court based on the Sunni Central Waqf Board’s admission observed that this narrowed the inquiry and settled the issue that the structure underneath was certainly a religious structure; now whether it was of Islamic or Non Islamic nature remained to be tested.
The High Court had concluded that excavation of walls of the underlying structure with the presence of pillar bases supports the conclusion of the ASI of the presence of a structure underlying the disputed structure, that the disputed structure did not have its own foundation but was raised on existing walls, and this conclusion is in accordance with the test of “preponderance of probabilities” that governs a civil trial.
The Supreme Court has thus found reliable evidentiary basis in the travelogues, gazetteers coupled with the ASI Report to embrace its unanimous verdict, not simply gone by faith and beliefs.
Did Faith win over Rule of Law in determining property title (A thorny proposition as some have put):
The Ayodhya case relates to title or ownership of the disputed piece of land believed to be birthplace of Bhagwan Ram by Hindus. In the absence of historical records with respect to ownership or title being an admitted position by all parties, the court had to decide the dispute by determining the nature and use of the disputed premises as a whole by either of the parties and in doing so the court had to factor in the length and extent of use.
In their title suit Sunni Waqf Board averred that since the alleged construction of the mosque in 1525, it has been used by the Muslims for offering prayers while the graveyard has been used for burial. It averred that even assuming that there was an underlying temple which was demolished to give way for the construction of the mosque, the Muslims by virtue of their long, exclusive and continuous possession commencing from the construction of the mosque and ensuing until its desecration, perfected their title by adverse possession. On this foundation, the Sunni Muslims claim a declaration of title and, in the event that such a prayer is required, a decree for possession by removing the idols.
Referring to the concept of change of sovereignty, the SC said it cannot entertain or enforce rights to the disputed property based solely on the existence of an underlying temple dating to the twelfth century. It cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. Under our rule of law, SC said it can only adjudicate upon private property claims that were expressly or impliedly recognized by the British sovereign subsequent to the annexation of Oudh and subsequently not interfered with upon Indian independence.
The SC noted the following evidence(s) and decided the title suit (quite contrary to claim of certain persons occupying august offices of Vice Chancellor of top ranked law schools, among other persons masquerading as professors, journalist who lied through their teeth in articles in various portals within hours of the verdict to spread propaganda in regards the Supreme Court judgment) :
- After the riots of 1856-7, the British set up a railing outside the three domed structure. Muslims would worship inside the railing while the Hindus would worship outside. The construction of Ramchabutra in close proximity to and outside the railing and the worship offered there was an event which coincided with the setting up of the railing.
- Following the incident of 1856-7, several cases were recorded
- one Nihang Singh Faqir Khalsa resident of Punjab, organized hawan and puja of Guru Gobind Singh and erected a symbol of ‘Sri Bhagwan‘ within the premises of the disputed site against which complaint dated 30 November 1858 was filed by Moazzin of the Babri Mosque to SHO which stated ”Previously the symbol of janam sthan had been there for hundreds of years and Hindus did puja”. This is admission by Moazzin that previously the symbol of Janamsthan had been there for hundreds of years and Hindus did puja inside the three domed structure.
- relating to construction of chabutras, kothri, an idol was placed on the platform of Janmasthan in November 1873, opening up of singh dwar on northern side.
- The SC observes that the sequence of events emanating from the installation of an idol in 1873, the specific permission to the Hindus to open an additional access on the northern side and the observations in the appeal that the objections to the opening were baseless are significant. The presence and worship of the Hindus at the site was recognized and the appellate order rejected the attempt to cede control over the entry door to the Muslims as this would make the Hindu community dependent on them. The administration in other words recognized and accepted the independent right of the Hindu worshippers over the area as a part of their worship of the idols.
- The case filed by Mutawalli of Babri Masjid against Raghubar Das claiming rent for the use of the Chabutra and Takhat situated near the door of Babri Masjid was dismissed in by an order dated 18 June 1883, the Sub-Judge Faizabad. The necessary consequence was that Raghubar Das was not required to pay compensation to the Mutawalli for occupation.
- The Suit of 1885 was not for title. Judicial Commissioner though considered it unfortunate that a mosque had been constructed on a site which the Hindus attributed as the birth-place of Bhagwan Ram, he was of the view that a breach of the status quo at that stage was undesirable.
- The documents would show that financial assistance was provided by the British for the purposes of the maintenance of the mosque, but this would not amount to proving that the structure was used for the purpose of offering namaz.
- In 1931, the entry in the Nakal Khasra Abadi mentioned in the Nazul register records the presence of Babri Masjid and also notes that the Ramchabutra was famous as the birth-place
- The SC dealt with the evidence led by Sunni Waqf Board on proof of namaz being offered at the site to determine whether namaz was being offered at the disputed property as well as the frequency of the namaz. The SC concluded that the lapses in the memory of witnesses (PW-1) led by Sunni Waqf Board and the discrepancy in the statements of witnesses in relation to their age (PW-2, PW-3, PW-4) casts a serious doubt on the testimony besides other contradictions and inconsistencies in the statements. The testimony of some of the witness, does not throw light on when in point of time namaz was being offered. However, the extent of namaz would appear to have been confined to Friday namaz particularly in the period preceding the events of December 1949.
- The report of the Waqf Inspector belies the claim of several witnesses that they had offered namaz on 22 December 1949. It is stated in the report that 23 December 1949 was the day of Jumma. It can be reasonably concluded that the last Jumma namaz must have been held on Friday, 16 December 1949.
- The documentary evidence relied upon by the Sunni Waqf Board to demonstrate that the mosque stood on dedicated land originates after the colonial annexation of Oudh and after the year 1856. This was admitted by Dr Rajeev Dhawan, that the Sunni Waqf Board was unable to establish a specific grant of the land as a foundation of legal title prior to the annexation of Oudh or upon the transfer of power to the colonial administration after 1857.
- A crucial aspect of the evidentiary record is the absence of any evidence to indicate possession by Muslims or that the mosque was, after its construction, used for offering namaz until 1856-7. (THIS was NOT DENIED & infact ADMITTED by Dr Rajeev Dhawan, Senior Counsel for Sunni Waqf Board on a question being specifically put to him by the bench, Para 741 of the judgment)
- Sunni Waqf Board also contended that the disputed site is waqf property by user but evidentiary threshold to prove so is high, (in most cases requiring evidence of public worship at the property in question since time immemorial), which the sunni waqf board failed to adduce any evidence for.
- On the plea of adverse possession on the disputed area by the Sunni Waqf Board it was held that:
- Beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished.
- The evidence in the records indicate that Hindus, post the setting up of the railing have, in any event, been in possession of the outer courtyard. On this basis alone, the plea of adverse possession set up by the sunni waqf board in respect of the entirety of the area must fail.
- On the argument of Sunni Waqf Board in regards the application of the doctrine of lost grants it was held that there is no pleading by the Board to support the same. In fact, the alternate plea of adverse possession is destructive of a valid legal basis to apply the doctrine of lost grant as a rule of evidence.
- In the ASI report the specific sculptured finds such as the black Kasauti stone pillars along with the presence of the figurines of Varah, Garud, Jai and Vijay suggest that they were primarily meant for decoration of a Hindu temple facade and served as deities to be worshipped.
- The accounts from travellers (chiefly Tieffenthaler and Montgomery Martin) corroborated by both Hindu and Muslim witnesses indicate identifiable places of offering worship and the prevalence of worship by Hindu pilgrims at the disputed site.
- The oral witness accounts of the Hindus show their faith and belief that the ‘Garbh-Grih‘ was the birth-place of Bhagwan Ram and the existence of long continued worship by the Hindus at the disputed site.
- Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the “Garbh-Grih‘being the birth-place of Bhagwan Ram. This is evident from the witness testimonies which indicate that pilgrims offered prayer standing at the railing by looking towards the sanctum sanctorum.
- It is fundamental principle of law that revenue records do not confer title. The documentary evidence on which reliance has been placed by the Sunni Waqf Board essentially consists of grants which were made by the British Government for the upkeep and maintenance of the structure. Such a document even if it is accepted as authentic indicates a grant for specific purposes and does not confer the title to the disputed land.
The SC noted that there was a consistent pattern indicating possession and worship by the Hindus at the outer courtyard after the setting up of the railing in 1856-7. The occupation and possession of the Hindus is evident from:
- the exclusive presence of Hindu places of worship in the disputed property which lay beyond the railing;
- evidence of worship by the Hindus at these places of worship;
- recognition by the administration of the need to open an additional entry gate on the northern side occasioned by the large presence of devotees;
- absence of any evidence to indicate that the Muslims had asserted any right of possession or occupation over the area of the disputed property beyond the railing;
- occurrence of incidents during which the use of the mosque inside the railing became contentious;
- report of the Waqf Inspector complaining of Muslims being obstructed in proceeding to the mosque for namaz;
- access to the outer area of the disputed property beyond the railing being exclusively with the Hindus; and
- the landlocked nature of the area inside the railing.
It is to be noted that section 110 of the Evidence Act 1872 deals with the burden of proof. Section 110 is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner. The ‘shown to be in possession’ requirement was not fulfilled by the Sunni Waqf Board, so the presumption would not arise and there would be no question of placing the burden on the contesting Hindu parties to establish that the Sunni Waqf Board in are not the owners.
In assessing the title of the Muslims, the SC held that the physical structure of the mosque is one fact to be taken into consideration. But a claim to possessory title has to be based on exclusive and unimpeded possession which has to be established by evidence. Finally after analyzing all the evidence the Supreme Court held as follows:
- Sunni Central Waqf Board case of possession to attract the applicability of Section 110 of the Evidence Act must therefore be assessed from the following perspectives:
- Firstly, insofar as the outer courtyard is concerned, it is impossible to accept on the basis of a preponderance of probabilities that the Muslims were in possession. On the contrary, the establishment of Hindu places of worship in the outer courtyard and a consistent pattern of worship by the Hindus in the outer courtyard clearly belies such a claim.
- Secondly, the Muslim account of worship prior to 1856 is conspicuously silent as opposed to the accounts of worship being offered by the Hindus & though, the claim of the Muslims over the inner courtyard was not abandoned, yet as the evidence indicates, this was a matter of contestation and dispute.
- The evidence adduced does not demonstrate that the entire disputed property was utilized by the resident Muslim community for public religious worship. Portions of the property were admittedly not used for religious purposes by the members of the resident Muslim community and cannot be waqf property by long use.
- All the evidence indicates that a reasonable inference based on a preponderance of probabilities can be made that there was continuum of faith and belief of the Hindus that the ‘Garbh-Grih‘ was the birthplace of Bhagwan Ram both prior to and after the construction of the wall. The use of the area within the railing by the Muslims was contentious and their access to the inner courtyard was landlocked; the only access being through the two gates to the outer portion and the area which were in the control of the Hindus.
To conclude – it was held that from the documentary evidence, that the Muslims have not been able to establish their possessory title to the disputed site as a composite whole.
Babri Demolition Held Akin to Taliban’s Attack on Bamiyan Buddhas:
A founding editor of an online media platform (Siddharth Vardarajan of The Wire) has candidly rued that those who demolished the Babri Masjid are akin to the Taliban! Herein lies the beauty of freedom of expression granted by our Constitution. It exposes such dangerous thoughts by some fourth pillar guardians that can gravely disturb peace and order. Where else in the world can one call the majoritarian populace, Talibani and get away? It also reflects the high degree of tolerance we bestow on certain media houses these days who carry on with their propaganda reporting unabashed.
It is time such leading names especially VCs of NLUs (or be it any academic institution), journalists put law above their own faiths, perceive judgments through the prism of a duty owed to the profession and society, and not look out for applauses from obstructionists and cynical naysayers. It is after centuries that this contentious dispute has been put to rest. An Indian journalist writing for a foreign newspaper (Rana Ayyub in the Washington Post) termed the Ayodhya verdict as ‘senseless’, the beginning of the worst for Muslims who she feels are isolated, a court decision who she refers as having been taken without being sensitive to the beliefs of Indian Muslims, and questions why the Chief Justice took his colleagues out for a dinner at the posh Taj Mansingh. Damning the pronouncement of the highest court of the land, an institution which gave extensive hearing to all sides for an unprecedented forty days stretch, is being insensitive to India and its courts, which still attract trust and confidence of the people. The dinner at the Taj Mansingh, on the contrary, points exactly to the indefatigable efforts of the judges themselves to solve the centuries’ old dispute. Disputes are meant to be solved. In a country governed by Rule of Law, as responsible citizenry we can either unite our fellow Indians and move ahead or keep embers burning for narrow political gains.
Shoumendu Mukherji and Piyush Beriwal
Shoumendu and Piyush are practicing Advocates in Delhi.
Shoumendu is a graduate of the West Bengal National University of Juridical Sciences, Kolkata.
Piyush is a graduate of the Campus Law Centre, University of Delhi and holds a LL.M. degree from the University of Cambridge.