The Ayodhya Judgement: Complete justice or a travesty?
What has been seen is the demolition of the mosque by a rampaging mob; the riots that followed in its wake; what is being seen now is the handing over of the title to land by the court to plaintiffs who were directly or indirectly involved in the demolition. If this is how justice is done, then I am afraid what emerges—from the thousand or so pages of the epic judgement—is neither justice, nor truth, but an elaborate pretence of justice.
The Ayodhya Judgement, delivered with much fanfare last Saturday by a 5-Judge bench of the apex court comprising the Chief Justice of India, Ranjan Gogoi, S A Bobde, Dr Dhananjaya Y Chandrachud, Ashok Bhushan and S Abdul Nazeer on the 9th of November, is a mammoth document running into some 1045 pages. Curiously, along with it, there is an addendum of 116 pages by a judge who has chosen to record different reasons on the question: “Whether the disputed structure is the birth-place of Lord Ram according to the faith and belief of the Hindu devotees?”
This is a departure from settled convention in two respects: first, judgements are ordinarily delivered on working days; second, the authors of the judgement are always made public. While the first departure may be justified based on the sensitive nature of the subject, the second departure is still difficult to understand. Perhaps the judges have reasons meriting this innovation; at any rate, we shall know these reasons in due course of time. After all, the Ayodhya Judgement will go down in the annals of history; it will be studied by scholars and students of the Constitution; legends will grow around it; anecdotes will be told about the judges who delivered it. But to what end and in what manner? That question looms large on the horizon as the judgement has ruffled many feathers and garnered criticism from leading legal luminaries in the country, including some prominent former judges of the supreme court. The international media, too, has excoriated the judgement as the final nail in the coffin of a secular, liberal India now in the throes of an increasingly hinduised polity.
The much-anticipated verdict has itself been received cautiously by all; responses have been muted—neither euphoria nor indignation by parties in question. Perhaps the full meaning of the unanimous judgement is yet to sink in. The task of interpreting the judgement is a complex one, and it cannot be understood merely by referring to its operative part— “relief & directions”—contained in mere three pages (925 to 928) in part Q of the thousand-page long document.
One way or another, the judgement has finally brought down the curtains on a seemingly intractable religious dispute locked in the labyrinths of India’s legal system since 1885. Almost 135 years have elapsed since the first civil suit was filed by Mahant Raghubar Das in the Faizabad court. The dispute itself is much older, dating back to at least 1856-57 when the first communal disturbances erupted in Ayodhya because of competing claims on the rights to offer worship. India has seen many momentous changes since; she won her independence from the British in 1947; promulgated a constitution based on liberal, secular ideals in 1950; and, as many would suggest, she has practised democracy with varying degrees of success.
One may argue—at the very outset—that the contentious judgement is more about arriving at much-needed closure to a dispute that had become a festering wound in the flesh of India; and perhaps, this closure was effected by the court more in a manner consistent with the wishes of the majority than in accordance with the dictates of justice. The Babri Masjid-Ramjanmabhumi dispute was never merely a legal wrangle; nor was it ever an ordinary civil suit for “possessory title” as the honourable judges might want us to believe—the judgement itself betrays that conviction as “faith and belief” which did become factors in the determination of the title suits in pendency, especially in the decree that the court passed in the crucial Suit no. 5, in favour of the plaintiff “Bhagwan Ramlala Virajman”. Yes, a ton of case law was cited. Books and authorities were referred to ranging from history, jurisprudence, archaeology and philosophy; but, beneath the veneer of all this erudition, the application of the law, it would seem, was jaundiced by the spectre of “faith and belief”.
It must be noted also that this case has always been inextricably intertwined with matters ecclesiastical, and over the years, it had become the centre of discord between the two most populous communities of India—the Hindus and Muslims. Since the late eighties, the Ramjanmabhumi dispute was at the fulcrum of a movement which reached its crescendo with the razing of the Babri Mosque on 6th December 1992 by a frenzied mob. Its political aftershock, in many ways, eventually helped propel the BJP into prominence—and the terrain of politics has been awash with Hindutva colours ever since.
The million-dollar question was if the court could insulate itself completely from the goings-on in the sphere of politics and decide the matter solely based on evidence. The judges are conscious of this demand. In the judgement they repeat very often that the determination of title must be based on settled evidence admissible in civil proceedings, and yet they accept the pleadings of the plaintiffs in Suit no. 5 to claim possession of the disputed land on their “faith and belief, since times immemorial” that the birth-place of Lord Ram was the exact spot where the three domes of the Babri mosque stood.
The 116-page addendum is precisely an answer in the affirmative to this self-fulfilling belief; though, technically it is not part of the judgement; it does offer us some insight into the reasonings of one of the judges in question. Why should there be any judicial arbitration on the faith and belief of any section of the population and why should material evidence be adduced in a court of law to give it legal sanctity? A belief is—by definition—never in need of evidence. Ostensibly, this is how a matter of “faith and belief” can transform into a fact of history, having done time in the onerous prison of judicature. Once belief becomes a fact, it becomes admissible in a court of law.
Ironically, the chief material evidence that the court has relied upon to prove that the site of the disputed structure was indeed the place of birth of Lord Ram “according to the faith and belief of the Hindu devotees” consists of a travelogue written by a Christian priest Father Joseph Tiefenthaler who visited India between 1766-71 AD. The court for technical reasons chose to ignore the report authored by four eminent historians who found that there is no textual evidence that people ascribed any sanctity to the place now claimed as the Janmabhumi before the late eighteenth century. They also reported that there is “no basis in Skanda Purana to indicate that the site of Babri Masjid is the birthplace of Lord Ram”, and also that there was “no mention of Babri Masjid in Ram Charit Manas composed by Tulsidas in 1675 AD”.
However, such magnanimity is not shown to the Muslim parties. One primary reason why the plaintiffs in Suit no. 4—namely the Sunni Waqf Board and others—lost the claim to the possessory title of the disputed land was because, comparatively speaking, the “evidentiary threshold” for them is arguably kept very high. The court held that possessory tile could not be conferred to the plaintiffs as the conditions necessary to meet the applicability of either the “doctrine of lost grant”, or “waqf by long use or express dedication”, or title through “adverse possession” could not be met for want of evidence. The court wanted hard, incontrovertible material evidence for deciding in favour of title. The physical structure of the mosque, the court held, is a consideration but not enough. The fact that the said structure was made on the orders of Babur and the fact that there was an inscription stating the same outside the mosque until 1934 when it was damaged in rioting is not enough, the court held. On the question of possession, it decreed that the plaintiffs have failed to prove exclusive unimpeded possession of the disputed land. Its finding was that Hindus were in possession of the outer courtyard since 1856 and the inner courtyard was in possession of Muslims but that was in contention. Before 1856, it was somehow inferred that even the inner courtyard was used jointly—though that seems beyond reason as namaz and puja cannot happen simultaneously at the same place!
The evidence relating to revenue records and grants by the Mughal emperors, the nawabs of Oudh and even the British government were not enough to confer title, the court decreed and rightly so as it provided an array of judgements from courts in India and abroad suggesting that revenue records merely show claim to management and not title. One wonders what the management was for during the period 1528 to 1856? One is forced into wonderment because the Muslim parties could not adduce evidence relating to the period before 1856 to prove that the disputed structure was used for namaz, although they were able to produce evidence for the said period that a regular and continuous grant was made for the maintenance and upkeep of the mosque. One also wonders when “faith and belief” of a certain community is inferred as evidence based on questionable travelogues, why would revenue records and proof of grants for upkeep for the mosque not meet the evidentiary threshold?
Then there is also an inference that can be made by logic. The court has inferred that between 1528 to 1856 there is no evidence that namaz was offered in the disputed structure, however, it has conceded that there is evidence to suggest that the mosque was used for namaz after 1856 when communal conflict arose for the first time regarding the use of the structure. This has to be an absurdity: to accept that a mosque was built in 1528 and then to conclude—just because the desired documentary evidence could not be adduced for reasons of lapse of time or want of records—that no namaz was offered in the period between 1528-1856 is quite disingenuous. The court finds that there was “no abandonment of the mosque “by the Muslims after 1856, or even after 1934 when riots happened for a second time due to the developing dispute between two communities over the mosque and its domes and inscriptions were damaged. The court has accepted that namaz continued to be offered in the Masjid until December 1949 when idols were forcibly installed. The question that begs itself is if there was no abandonment of the mosque after 1856 when conflicts arose why would there be an abandonment before 1856 when there is no record of conflict? Also, the period between 1528 to 1856 was the period of Muslim rule—first the Mughals and then the kingdom of Oudh, and it would be difficult to think of reasons as to why a mosque purportedly built by Babur would be abandoned just after its construction!
The judges have decreed in favour of the plaintiffs in Suit 5 and decreed that the whole 1500 square yards constitutes “one composite site” and that this site is the birthplace of Lord Ram “according to the faith and belief of Hindus”. The prayer is the suit was to declare that “Asthan Shri Ramjanmabhumi” is a juristic person, which the court, however, declined to accept. Operatively though, by decreeing that the Janmabhumi is a composite site, it annulled the decree of partition by the Allahabad High Court and laid the ground for the eviction of the Muslim parties from the title. The judgement says that since evidence suggests—as reported in travelogues cited above—that Hindu devotees were doing “parikrama” of the disputed structure, it can be inferred that their “belief” was in the three-domed structure as the birthplace of Lord Ram, although they were not in possession of the inner courtyard where the “Garbha Griha” was supposed to be. This continued belief since time immemorial, the unimpeded possession of the outer courtyard at least from 1856, consistent claims on the inner courtyard, and the fact that the whole complex was “one composite site”—hence inviolable and indivisible—was enough evidence in the eyes of the court to confer possessory title. Interestingly, suit 5 was instituted only in 1989 which is more than a hundred years after the petition filed by Mahant Raghubar Das who wanted permission to build a temple on the site of Ram Chabutara which was outside the inner courtyard. He claimed that the Chabutara constituted the birthplace of Lord Ram. No contestation was made on the inner courtyard by Raghubar Das. Suit 3, filed by the Nirmohi Akhada in 1959, strictly speaking, was not a title suit and the prayer was to get recognition of its rights as the Shebait of the deity. The suit was barred by limitation by the Allahabad high court and that decree was upheld by the Supreme Court in its judgement.
The learned judges quote the English jurist Lord Denning on the “Doctrine of Preponderance of Probabilities” who says, “It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt”. The judgement takes recourse to this doctrine time and again. Noticeably though, the preponderance of probabilities more often than not work in the favour of the Hindu parties, sometimes even when proof arguably is not beyond a reasonable doubt—as in the case of evidence from travelogues, or when the ASI report is inconclusive about the nature of the underlying structure beneath the mosque. The Muslim claim to title is dismissed, even though sometimes when the evidence is beyond a reasonable doubt; the court implicitly demands evidence beyond the shadow of a doubt. On a reasonable application of the doctrine of the preponderance of probabilities it could be argued that Muslims were in possession of the disputed structure from 1528 to 1949. At any rate, their case would not be weaker than competing claims of the Hindu parties. So, on balance, it must be noted that possibly the standards of equity were not entirely met in the marshalling and assessment of the evidence that led to the determination of the title suit.
The invocation of Article 142, ostensibly “to do complete justice”, by the Supreme Court has raised more questions than answers. The grant 5 acres of land to the Waqf Board at an alternate site at a prominent place in Ayodhya after denying their prayer for declaration of title and decree of possession, and also the relief provided to Nirmohi Akhada by giving it a role in the management of the temple even though its suit was barred by limitation and its shebait claims were dismissed only confounds the confusion. It appears that the judges wish to compensate the aggrieved parties, or arrive at some form of judicially imposed compromise. It was needless in my opinion, as it takes the conviction out of the judgement and projects a sense of lack. It may also give rise to the view that justice was not served in the first place and hence action under Article 142 is required—not so much for the reasons of justice but for the expediencies of politics.
The Supreme Court held the demolition as a violation of the law. It held the surreptitious installation of the idols as illegal. It said that the breach of status quo at various times from 1949 was against the spirit of justice. The judgement takes note of all the above but does nothing to redress it. Appearances are important in judicial pronouncements. Did we witness a travesty of justice? What a spectacular travesty it is, crumbling to dust the old saying that “justice must not only be done but also seen to be done”. What has been seen is the demolition of the mosque by a rampaging mob; the riots that followed in its wake; what is being seen now is the handing over of the title to land by the court to plaintiffs who were directly or indirectly involved in the demolition. If this is how justice is done, then I am afraid what emerges—from the thousand or so pages of the epic judgement—is neither justice, nor truth, but an elaborate pretence of justice. I am no jurist; my understanding of the law is no more than that of an ordinary citizen. But I do know that justice is not a ruse, it is not pretentiousness. Justice should be of substance. It must inspire confidence and not pander to the galleries, or majorities. The law must stand tall, always, and it should have the courage to go against the tide of popular opinion. If it were only a question of the will of the majority, the temple would know no hindrance. But is the law too now governed by numbers like everything else in our democracy?
All photographs of the Babri Masjid are from before 1947, and are reproduced here courtesy of the British Library.