Court made it clear that it had not relied only on ASI’s report while deciding the case.
New Delhi: When Gopal Singh Visharad, a “Hindu worshiper”, as the court described him, filed a suit in January 1950 before the Civil Judge at Faizabad, Uttar Pradesh, seeking a declaration that according to his religion and custom, he was entitled to offer prayers at the main Janmabhumi temple near the idols, neither he nor the civil judge would have imagined the tremors it was going to bring, something which would last till 2019.
Bringing down the curtains on India’s oldest pending case, the Supreme Court on Saturday ruled that the Hindu parties to the litigation would get the entire disputed 2.77 acres in Ayodhya. This is the same land on which the now demolished Babri Masjid once stood. The Muslim parties, the court ruled, would get an alternative land either in the surplus 67 acres acquired in and around the disputed structure by the Central government or any other prominent place. The entire 2.77 acres will remain with the court appointed receiver and will be handed over to a trust to be formed in three months to build a temple.
The five-judge bench comprising Chief Justice of India (CJI) Ranjan Gogoi, Justices S.A. Bobde (CJI elect), D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer, while giving an unanimous judgement in the Ayodhya case, after the culmination of the 41-day marathon daily hearing, made it clear that the court had decided the case on the basis of evidence and not on faith and belief.
Giving a glimpse into the significance of this case, the court said, “This court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime.”
The massive judgement was divided into 17 parts and 47 sub-parts that separately dealt with literally every part of the history, the evidence and the claims made by various litigants in the case.
“The dispute is over immovable property. The court does 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,” said the judges in the judgement, which is spread across 1,045 pages.
The Supreme Court, while giving its reasoning as to why it did not give a judgement on the lines of the 30 September 2010 Allahabad High Court which had tried to make everyone happy, said that the “three-way bifurcation by the High Court was legally unsustainable” and giving judgement on those lines was not going to bring “lasting peace”.
“Even as a matter of maintaining public peace and tranquility, the solution which commended itself to the High Court is not feasible. The disputed site measures all of 1,500 square yards. Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquility.”
The Allahabad High Court had divided the 2.7 acre land at Ayodhya, Uttar Pradesh, equally between the three primary parties—Bhagwan Ramlalla Virajman, Nirmohi Akhara and Uttar Pradesh Sunni Central Waqf Board.
On why it gave 5 acres of land to Muslim parties
“The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims.”
While adding that “the Court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied.”
According to the five-judge bench: “Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existnce nourish the secular commitment of our nation and its people. It is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship” while ordering that land measuring 5 acres should be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh at a suitable prominent place within the city of Ayodhya, an exercise, which should be conducted simultaneously with the handing over of the disputed site comprising the inner and outer courtyards.
On the evidence produced by parties with regard to accounts of ancient travellers
“While we have made a reference to the accounts of travellers and gazetteers, we read them with caution. The contents of these accounts cannot be regarded as being conclusive on the issue of title which has necessitated an adjudication in the present proceedings. While the gazetteers may provide the court a glimpse on matters of public history, history itself is a matter of divisive contestation,” the court stated.
“Above all, the court must sift matters which may be of a hearsay origin in its effort to deduce the kernel of truth which lies hidden in the maze of conflicting claims. Travelogues and gazetteers contain loose fragments of forgotten history. The evidentiary value to be ascribed to their contents necessarily depends upon the context and is subject to a careful evaluation of their contents. Our analysis has included in the balance, the need for circumspection, as we read in the accounts of travellers and gazetteers a colonial perspective on the contest at the disputed site,” it further added.
On the conflux of faith and evidence
Interestingly, one of the judges, who was not named, recorded his separate reasons on whether the disputed structure is the birthplace of Lord Ram according to the faith and belief of the Hindu devotees. The reasons of the judge were set out in the addendum that was a part of the judgement.
The judge concerned, in the addendum, wrote: “The sequence of the events clearly indicates that faith and belief of Hindus was that birth place of Lord Ram was in the three-dome structure mosque which was constructed at the janamasthan. It was only during the British period that grilled wall was constructed dividing the walled premises of the mosque into inner courtyard and outer courtyard. Grilled iron wall was constructed to keep Hindus outside the grilled iron wall in the outer courtyard. In view of the construction of the iron wall, the worship and puja started in Ram Chabutra in the outer courtyard. Suit of 1885 was filed seeking permission to construct temple on the said Chabutra where worship was permitted by the British Authority.”
“The faith and belief of the Hindus as depicted by the evidence on record clearly establish that the Hindus’ belief that at the birth place of Lord Ram, the mosque was constructed and the three-dome structure is the birth place of Lord Ram. The fact that Hindus were by constructing iron wall, dividing mosque premises, kept outside the three-dome structure cannot be said to alter their faith and belief regarding the birth place of Lord Ram. The worship on the Ram Chabutra in the outer courtyard was symbolic worship of Lord Ram who was believed to be born in the premises. It is thus concluded on the conclusion that faith and belief of Hindus since prior to construction of mosque and subsequent thereto has always been that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above,” the judge observed.
On the report prepared by the Archaeological Survey of India
The report of the ASI, the court said, indicated the following position:
(i) The foundation of the mosque is based on the walls of a large pre-existing structure.
(ii) The pre-existing structure dates back to the twelfth century.
(iii) The underlying structure which provided the foundations of the mosque together with its architectural features and recoveries are suggestive of a Hindu religious origin comparable to temple excavations in the region and pertaining to the era.
(iv) The construction of the mosque has taken place in such a manner as to obviate an independent foundation by utilising the walls of the pre-existing structure; and
(v) The layered excavation at the site of excavation has also revealed the existence of a circular shrine together with a makara pranala indicative of Hindu worship dating back to the eighth to tenth century.
The court further observed that, “Since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries.”
However, the court made it clear that it had not relied just on the ASI report while deciding the case. “A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI. 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 sixteenth 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.