Bashing the ASI Report in the Ram Janmasthan case : Truth and Facts .

Now that the ASI Report has been taken to be the crucial evidence clinching the Ram Janmasthan matter , the very nature of the Report has been attempted to be questioned by some of the eminent academics , media persons and “constitutional lawyers”.

Two broad allegations which are thrown at the report are that the ASI was not authorised to submit the report and that the ASI is biased . Needless to say again these statements have been made , by people who do not have any idea about a civil suit used as they are to “ Commissions of Enquiry” and “People’s Tribunals” which manufacture conclusions according to political convenience .

To take the first argument as to how the ASI came into the picture , it is relevant to read a few provisions of the Civil Procedure Code , namely Order XVI Rule 14 which allows the Court to summon witnesses on it’s own accord , even those who are not parties to the suit and have not been called as witnesses , or may be called to produce a document in his possession . The second is Order XVIII Rule 18 , in which the Court , which gives the power to the Court to inspect any property or thing concerning which any questions may arise ( provided that the memorandum of inspection , i.e. ASI Report , forms a part of the suit ), and , third Order XXVI Rule 10 A which allows the Court to appoint a person whom it deems fit to enquire into questions and report on that to the Court , on questions arising out of scientific investigations , which cannot be conducted before the Court.

Keeping this in mind it is important to keep the following sequence of events which lead to the acceptance of the ASI Report and therefore the second question which we had referred to above .

The Court on 1.08.2002 , the Court specially referring to the famous Issue 14 of Suit No.5 and the related Issue 1(b) of Suit No.4 and keeping in mind the Supreme Court reference , about the question as to “whether there was a Hindu temple or any Hindu religious structure existed or the alleged Babri masjid was constructed after demolishing temple at the site in dispute”, and disconcerted by the findings in the book of the “famous” leftist historian / archeologist “ Dhaneshwar Mandal” in his book “ Ayodhya- Archeology after demolition” (in which Mandal stated there is enough archeological evidence existing to come to a definitive conclusion regarding the disputed site ) asked the various parties as to their views about having the ASI excavate the site and before that use the technology of Ground Penetrating Radar ( GPR) to come to a preliminary finding.

As Justice Sudheer Agarwal records :

“ 213. Almost all the parties, namely plaintiffs, defendants no. 2,

3, 4, 20 and 22 (Suit-4) and State Government filed their objections in one or the other manner. However, except defendant no. 2, others did not raise any specific objection regarding survey of the disputed site by GPR. Sri Jilani, learned counsel for plaintiffs in Suit-4 in fact made a statement before the Court that he has no objection on G.P.R. survey of the disputed site.”.

That is in other words the only people who wanted the excavation and who asked for it was the Sunni Waqf Board and Sri Jilani was the only lawyer who stated before the Court that he had no objections to the survey.

All the various objections to the GPR ( Ground Penetrating Radar) Survey , were considered by the Court , which disposed them of by an order dated 23.10.2002 , which reiterated the law on the point and gave out reasons as to why the Court wanted such excavation . The Court then proceeded to direct Tojo- Vikas International Pvt. Ltd. to make the GPR Survey .

After the GPR report was submitted the Court sought for objections from parties , which were duly filed . The Court thereafter disposed of the objections by an order dated 5.3.2003 directing ASI to go ahead with the excavation of the disputed site with the following observations :

““Considering the entire facts and circumstances, the Archaeological Survey of India is directed to get the disputed site excavated as under:-

(1) The area shown in the report of the Commissioner submitted in Suit No. 2 of 1950 (O.O.S. No. 1 of 1989) covering an area of approximately 100x100 shown in the map plan no. 1 referred to by letters A, B, C, D, E, F and thereafter northern portion up to the end of the raised platform and further to the west, south and east to the said site to the extent of 50 feet.

(2) If it is necessary to excavate towards north or any area more than 50 feet to the disputed area, it can do so to find out the true position as regards to any foundation.

(3) It is made clear that the Archaeologists (Excavators) shall not disturb any area where the idol of Shri Ram Lala is existing and approximately 10 feet around it and they shall not affect the worship of Shri Ram Lala and thus, status quo as regards His Puja and worshippers' right of Darshan shall be maintained.”

(4) The excavation shall be done by Excavation Branch concerned specialized in excavation work within a period of one month from today. If they are engaged in other work it shall be suspended till the excavation in question is complete. If any additional staff is required the Archaeological Survey of India and Central Government shall provide it.

(5) Tojo-Vikas International (Pvt.) Limited which has surveyed the site in question by GPR etc. shall assist the excavators by providing technical assistance at the time of excavation.

(6) The work will commence within one week from today. The report will be submitted within one week from the date of completion of the excavation.

(7) The Archaeological Survey of India shall intimate the date of the commencement of the work to the Officer on Special Dutuy, Ram Janma Bhumi-Babri Masjid. On receiving such information he shall intimate the date to the parties who can watch the excavation work.

(8) Learned counsel for the parties can also appoint nominee including Archaeologist to watch the excavation work. It is made clear that only one nominee of each contesting party at one time shall be entitled to remain present.

…………………..”

The Director General , ASI constituted a team of 14 members lead by B.R. Mani , C.B. Mishra and A.A. Hashmi , which were to be helped by another 80 labourers .

The Court thereafter passed further directions by an order dated 11.03.2003 to put in more safeguards so that the interests of the parties could be protected :

“1. The general survey of the site and layout of the trenches if already done shall be done again in presence of the contesting parties or their counsel or nominees.

2. It should commence from 12.03.2003 at 10.00 a.m.

3. The excavation work should be done from 10.00 a.m.

4. List containing names and addresses of all persons including labourers engaged in excavation process be submitted to the Hon’ble Court for record.

5. Names of the equipments and tools likely to be used in excavation work may also be submitted.

6. Videography if being done may be kept in tact and under sealed cover.

7. Materials likely to be recovered may also be kept in sealed cover/bundles and may be preserved in some near by located building under lock and seal.

8. The Authorised person/Director A.S.I./Team Leader A.S.I. Excavation Team, Ayodhya should submit periodical progress report of the work to the Hon’ble Court and they should not make any briefing/disclosure to the media.

9. Transparency should be maintained.”

The said directions were complied with by the ASI and reports from time to time were submitted by the ASI to the Court.

The Sunni Waqf Board thereafter made an application for the recall of the order dated 5.3.2003, stating that GPR Report has not been approved and no order was passed on the admissibility of the said report, and therefore direction for excavation by ASI was not justified and must be reviewed. This application was rejected by the Court by an order dated 6.3.2002 holding that all the objections have already been considered and decided and no case for review is made out. The Sunni Waqf Board thereafter also made an application making allegations against the excavation and demanding the following amongst others :

“ ……6. That the depth below present surface, upto which digging has to be done, may be specified by the court and the same may be at the most 5-6 feet (1.5 or 2 meter) as the Issue regarding which the order of excavation has been passed, relates to the alleged demolition of temple (though denied) said to have been made in 1528 A.D. and as such the present excavation is not all concerned with anything of any period earlier than 16th century.

7. That plaintiff of O.O.S. No. 4 of 89 having filed the suit as the representatives of the Muslim community and the suit being contested also as a representative suit and the nature of the dispute also being very sensitive, it was not only desirable but rather necessary that the persons engaged by the A.S.I. in the entire process of excavation, should belong to both the communities in equal proportion, so that there may not remain any feeling among any community that any favour was being shown to any oneside or that more importance was being given by the A.S.I .to the members of one community as against the other. Similarly the appointment of only one Muslim in a team comprising of 14 persons can also not be said to be an impartial constitution of the excavation team. So also the engagement of all labourers of one community cannot be treated to be an impartial and justified action and inclusion of 3 Muslims only in a team of more than 50 labourers on 17/2/03, even after written demand made by the plaintiffs' counsels, shows their reluctance to act in an independent and impartial manner.

It is therefore, not only desirable, but necessary, in order to create confidence about the impartiality of the excavation work, that the A.S.I. be directed to include at least half of the members of Excavation Team and labourers from among the Muslims and 5 eminent Archaeologists (Excavators) and an observer be also appointed by this Hon'ble court with the consent of the parties, as per order dated 1-8-2002.”

It is apparent that by this time it was apparent that there had appeared an old existing structure resembling a temple at the place of the disputed structure , therefore the attempt to restrict the ASI to only excavate upto the 16^th Century .

The Court after hearing the parties on both sides then passed the following order on 26.3.2003, parts of which are extracted as follows :

“The applicant has sought further directions in the matter. We deal with each of the points raised and suggestions made by the applicant and parties as under :-

……..5. The applicant has suggested that there should be adequate representation of the Muslim community in ASI team as also in engagement of the labours for excavation work. Archaeology is a Science and every Archaeologist has to perform excavation and related work in a scientific manner on the principles laid down for excavation. When he acts as Archaeologist to prefix the word denoting his religion is not a correct description of such Scientist, e.g. a doctor may have any religious faith but he cannot be described by prefixing the word 'Muslim', 'Hindu', 'Christian' etc. It is his performance of work is relevant. It will amount to tarnishing of a Scientist, Archaeologist or any person engaged in excavation. Even the plaintiffs of O.O.S. No. 4 of 1989 (Sunni Central Board of Waqfs, U.P. And others Vs. Gopal Singh Visharad (now dead) and others had produced Suraj Bhan and B. Mandal who are non Muslims. They have also nominated some non-Muslim Archaeologists as their observers at the time ofexcavation.It is, however, to maintain faith of both thecommunities. In the facts and circumstances, it is desirable that adequate representation of both the communities may be maintained in respect of the functioning of the ASI team and engagement of the labours. We have been informed that Authorised Person seeks assistance of P.W.D. to engage the labours. He may take the help of P.W.D. or any agency, which adequately represents the labourers of Muslim community. Sri Jilani, learned counsel for the applicant submitted that if an Authorised Person is unable to get Muslim labourers, he can help him. We direct the Authorised Person to see that the labourers belonging to Muslim community may be engaged by any agency and if any agency is unable to find out such labourers, he can seek assistance of the counsel for the applicant. As regards the ASI team, Sri A.A. Hashmi, Assistant Archaeologist has been included in the list. In our view out of 8 Archaeologists engaged in the team, at least two more Archaeologists can be included for which ASI shall take necessary steps.The ASI team is further directed to submit the list of the names of the persons in the excavation trenches of various religious in India.”

This was complied with . There were continous back and forth objections about the excavation which have been dealt with extensively by Justice Agarwal in his judgment :

“ Between 14th April, 2003 to 26th July, 2003, thirty four such objections were filed out of which nineteen were filed through Sri Zaffaryab Jilani, Advocate; two through Mohd. Saleem, Advocate; two by Sri Mohd. Hashim (one of the plaintiff of Suit-4); four through Sri A.A. Siddiqui, Advocate; four through Sri Mustaq Ahmad Siddiqui, Advocate; two by Sri R.L.Verma, Advocate and one by Haji Mehboob (one of the plaintiff of Suit-4). In nutshell thirty two objections were filed on behalf of muslim parties and two on behalf of Nirmohi Akhara.”

An interim report was prepared by the ASI which was also objected to by the Sunni Waqf Board which was disposed of by Court's order dated 3.7.2003 stating that the ASI need not submit any further project report but may submit final report. Subsequently ASI was permitted to submit its final report on or before 27.8.2003 by order dated 3.7.2003. The ASI was given a last opportunity to visit the site till 22^nd August , 2003 under strict Court sscrutiny.

The ASI submitted it’s final report on 22.8.2003 along with detailed records to the Court .The report came up before the Court on 25.8.2003. Copies were supplied to all the partes and objections were invited from the parties . The ASI report was objected mainly by Sunni Waqf Board , Mohd. Hashim and other parties who raised mainly the following objections :

“1. That the report is one sided and is greatly influenced by certain preconceived theory of nations;……………

8. that the report is full of inconsistencies and discrepancies and the conclusions therein appear to have been tailored to support a particular theory;

9. that theory of existence of massive structure on wall- 16 and the 50 pillars, as shown in figure 23-B page 42-C of Volume I, is a concoction and unacceptable for the reasons inter alia that there were no pillar bases and the same had not alignment with each other nor were at the same level nor had capacity to support load bearing pillars;

10. that theory of massive structure is totally ill-founded because ASI report is silent on the point as to where were the remaining three walls of that structure, if wall 16 was one of the walls;

11. that so called “circular shrine” (which according to ASI, had a waterchute in the north and could be associated with Lord Shiva) could also be a structure relating to Budhism or Jainism, as considering the thin passage and little diameter, it was not possible for even a single person to enter and offer “Abhishekha”;

12. that ASI has, without any firm basis, characterized mutilated stone sculpture (plates 235 of Vol II of the report) as ‘divine couple’ and appears to have invented it at some later stage, as reference to it does not find incorresponding Site note-book or Day to Day Register; 13. that pillar door jam, octagonal shaft of pillars, amalka, divine couple stone with Srivastsa motif, lotus medallion, which ASI has taken into consideration for saying that there were remains of temple on the site in question, were of not significance as the same had been recovered from debris;

14. that alleged Srivatsa (see Plate No. 88) could equally be associated with Jainism and lotus with Buddhism and Islamic religion;

15. that terra-cotta figurines (62 human & 131 animal) discovered from different trenches, belong to ancient period and had no relevance;

16. that glazed- wares and glazed- tiles so recovered during the course of excavation spoke against the theory of existence of temple as all these were found below floor No. 4 relating to Medieval Sultanat period;

17. that in view of what has been written by S.K. Meermira in his book “Indian Pottery” glazed tiles were proof of Muslim habitation;

18. that wall-16 had niches (mehrab) on the inner side which are distinctive features of Islamic building and even if it is accepted that the same existed prior to construction of Babri Masjid, the same could have been a Idgah or Kanati (roofless mosque);

19. that no idol, or statute of any Hindu deity and no object of Hindu worship was found on the site so as to entitle the ASI to say that there were remains of existence of temple of north India;

20. that how the conclusions of ASI came in the Indian Express in its issue of 13.8.2003, much before 22.8.2003, when the report was filed in Court and that indicates that ASI tailored the report on the lines given in S.P. Gupta’s book titled “Auodhya Puratatve Evam Itihas”.

This Court after hearing the parties, vide its order dated 3.2.2005 held that the objections are basically such which can be considered and decided in the light of other evidence, which may come up before the Court in other words , they were in the nature of interpretation by expert witnesses , which the Court would have to consider subsequently. The Court was also of the view that the objections against the report would have to be considered before ASI report is acted upon but that situation will arise only when the Court would decide the matter finally. Therefore, the Court held that the ASI report shall be subject to the objections and evidences of the parties in the suit and all this shall be dealt with when the matter is finally decided.

Subsequently various expert witnesses were examined on the subject of the report by various parties . None of the famous historians so intent on holding forth and interpreting the evidence today and demanding access to the same , felt it important to depose before the Court as to their interpretations .

Justice Agarwal narrates the parade of witnesses :

“3797. 28 witnesses, i.e., PW 1 to 28 on behalf of plaintiffs (Suit-4) were examined between 24.07.1996 to 14.05.2005. The rest of four witnesses, i.e., PW 29 to 32 were examined between 28.09.2005 to 27.03.2006, i.e., against ASI report. Two witnesses were examined again i.e. PW 16 from 20.03.2006 to 28.07.2006 and PW 24 from 05.12.2005 to 04.01.2006 i.e. after ASI report. Similarly, on behalf of plaintiffs (Suit-5) 16 witnesses, i.e., OPW 1 to 16 were examined between 22.11.1999 to 21.07.2003. After the submission of ASI report three witnesses, i.e., OPW 17 to 19 were examined between 17.08.2006 to 05.12.2006. Defendant no. 1 (Suit-4) got all his three witnesses, i.e., DW 1/1 to 1/3 examined from 22.07.2003 to 21.08.2003 and did not produce any oral evidence after ASI report. Plaintiff (Suit-3) got his 20 witnesses, i.e., DW 3/1 to 3/20 examined from 29.08.2003 to 30.11.2004 and he also did not produce any witness either in support or against ASI report. Defendant no. 2/1 (Suit-4) got three witnesses, i.e., DW 2/1-1 to DW 2/1-3 examined from 01.12.2004 to 09.03.2005 and none was in respect to ASI report. DW 13/1 (Suit-4) got examined three witnesses, i.e., DW 13/1-1 to 13/1-3 from 10.03.2005 to 05.05.2005. Out of these three witnesses the statement of Mahant Awadh Bihari Das Pathak, DW 13/1-2 remained incomplete and, therefore, has to be excluded and cannot be read in evidence. Similarly, defendant no. 17 (Suit-4) examined sole witness DW 17/1 from 09.05.2005 to 17.05.2005; defendant no. 20 (Suit-4) got examined four witnesses, i.e., DW 20/1 to 20/4 from 25.05.2005 to 23.11.2005. Its fifth witness DW 20/5, Jayanti Prasad Srivastava deposed statement to support ASI report and was examined from 15.01.2007 to 23.03.2007. Defendant no. 6/1 (Suit-3) produced two witnesses, i.e., DW 6/1-1 and 6/1-2 who were examined from 29.08.2005 to 29.09.2005.

3798. Thus plaintiffs (Suit-4) produced eight witnesses called 'experts' (Archaeologist) to assail ASI proceedings, observations interpretations and findings. Similarly, plaintiffs (Suit 5) produced three witnesses, and defendant no.20 produced one witness in support of ASI report.”

The Muslim parties did not so much object to procedural impropriety of the Report which is being bandied about today but more about the interpretation of the evidence which was found during excavation .

Justice Agarwal therefore succinctly states his conclusions in relation to the Report :

“ 3796. One thing however is clear. Though the report of ASI on certain aspects including technical has been criticized by the Experts of Muslim parties but in general, what emerges, some undisputed facts, i.e. admission on the part of the objectors on many aspects, which are :

(i) A lot of structural and construction acitivities existed at the disputed site going back to the level of Shunga and Kushan period.

(ii) The exact number of floors, pillar bases and walls noted by ASI though objected but the very existence of several floors, walls, and pillar bases beneath the disputed stricture is not disputed.

(iii) The structure below the disputed structure sought to be explained as Kanati mosque or Idgah. There is no suggestion that the structure below the disputed building was of non-religious nature.

(iv) Some of the constructions or artefacts are sought to relate to Jains or Buddhist but here also it is not the case that it was Islamic in nature or non religious.

(v) Though allegations of lack of independence in professional style etc. is sought to be supported from the alleged misinterpretation or wrong interpretation or omission or contradictions and discrepancies in some part of the report but no one of ASI team, individual or group has been named or shown to have worked in a manner lacking integrity, independence etc. (except where two nominees of Muslim side i.e. Dr. Jaya Menon (PW 29) and Dr. Supriya Verma (PW 32) reported creation of pillar bases in Trench G2 vide complaints dated 21.5.2003 and 7.6.2003).”

That is why Justice SU Khan too when he addresses the ASI Report terms it as inconclusive and never raises the question of the validity of the Report or it’s acceptability in Court :

“Conclusions of A.S.I. Report 2003, already quoted, are not of much help in this regard for two reasons. Firstly, the conclusion that there is ‘evidence of continuity in structural phases from the tenth Century onward upto the construction of the disputed structure’ is directly in conflict with the pleadings, gazetteers and history books. Neither it has been pleaded by any party nor mentioned in any gazetteer or most of the history books that after construction of temples by Vikramadittya in first Century B.C. (or third or fourth century A.D., according to some) and till the construction of the mosque in question around 1528 A.D. any construction activity was carried out at the site of the premises in dispute or around that. Secondly, in case some temple had been demolished for constructing the mosque then the superstructure material of the temple would not have gone inside the ground. It should have been either reused or removed.

No learned counsel appearing for any of the Hindu parties has been able to explain this position.

It has been mentioned in the A.S.I. Report 2003 that underground portion contained several such items, which are associated with the temples of north India, e.g. mutilated sculpture of divine couple, foliage patterns, amalaka, lotus motive etc. Only in case of severe earthquake or in case of flood of very high magnitude superstructure immediately goes down inside the ground otherwise remains of a ruined building go inside the ground after centuries and not immediately after falling down of the building. It is also important to note that neither there is any requirement nor practice that even in the foundations of temple, there must be such items, which may denote the nature of the superstructure.

Accordingly, it is abundantly clear that firstly no temple was demolished for constructing the mosque and secondly until the mosque was constructed during the period of Babar, the premises in dispute was neither treated nor believed to be the birth-place nothing but birth-place and the whole birth-place of Lord Ram. It is inconceivable that Babar (or Aurangzeb) should have first made or got made thorough research to ascertain the exact birth-place of Lord Ram, which was not known to anyone for centuries and then got constructed the mosque on the said site.

The only thing which can be guessed, and it will be quite an informed guess taking the place of finding in a matter, which is centuries old, is that a very large area was considered to be birth-place of Lord Ram by general Hindus in the sense that they treated that somewhere in that large area Lord Ram was born however, they were unable to identify and ascertain the exact place of birth, and that in that large area there were ruins of several temples and at a random small spot in that large area Babar got constructed the mosque in question.”

None of the orders directing either the survey or the excavation or the conditional acceptance of the Final Report of the ASI were ever appealed to any Court by any of the parties . To now come up with such ex post facto objections is clearly either mischievous or ignorant .The point is that, whether one agrees to the interpretation of the evidence excavated by the ASI or not , the ASI Report was not made in a vaccum and the Court bent over backwards to accommodate interests of all the parties specially the Sunni Waqf Board . The Court heard all the interpretations by various witnesses before it , interpreting the evidence excavated by the ASI and came to the conclusion which according to it was the closest to the truth . The Court unanimously did not find any specific problem with the process of excavation itself or the conclusion of the Report of the ASI , though there was a clear difference between the Hon’ble Judges as to the relevance of the conclusions to the legal question in the present case . The attempt to therefore now paint the ASI as the villain of the piece is plainly disingenuous , but then what else can one expect out of those are so used to twist facts and evidence conveniently in their Commissions of Enquiry and their People’s Tribunals.

“Faith” in a Civil Suit : Fundamental Right to Religion in the Ram Janmabhumi Case.

This article is the second part of the earlier article , that is the broader question as to whether “faith” or “belief” can be a part of litigation before the Courts.

There have been discussions specially by venerable academics and media commentators that faith has no place in civil litigation , the question is , is that true ?

To answer that , it is important to note that the Courts have historically from the time of the Company Raj dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs . Therefore post the Great Revolution of 1857 ( which was substantially attributed to religious resentment) ,the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur . Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth , which included the following amongst other policy statements :

“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”.

The British Courts thereafter came up with a very nuanced manner of dealing with religious belief , holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system , which is genuinely held . The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. ( Syed Asrar Ahmed v. Dargah Committee , Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai ). After independence that has been the view of the Supreme Court as well . Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions .

In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem , the Court held :

“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”(

The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all , it can only go into the fact as to whether such a belief is genuinely and conscientiously held , that is all .

In order to consider as to what constitutes “essential or integral part” of a certain religion , the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda ) .

Coming back to the present case , the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case ) famously held :

“ While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”

The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities

Now , that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits , the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233 :

“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties. The statement is quoted below:-

“For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever…………..””

The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.

The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam, infact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.

Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma ) therefore in the present case the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion .

The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:

“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, "Sri Ram Janamsthan", and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.

4560. Though the prayer in the suit is worded in the different manner but for complete justice and to avoid multiplicity of litigation as also the adjudication which may settled centuries old dispute finally, we are of the view that we can mould the wordings of the reliefs and can pass an order in respect to respective parties in this case which as suuch may not be covered by the form of relief but is within the scope of the case. In this regard we can rely on the provision under Order VII Rule 7 CPC.”

In our view whatever be the legal merits of the trifurcation of the land ( and there are serious legal objections to that) , it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.

Questioning Faith

The Oracles of Secularism have come to a conclusion regarding the decision of the Allahabad High Court in the Ram Janmabhumi Babri Masjid matter , which is remarkable in it’s simplicity , both , being simple as to what it wanted to say , and , being simplistic in the knowledge of the intricacies of Indian law but it is surprising to read some of India’s eminent lawyers and constitutional experts commenting on the judgment , seemingly without context and seemingly without reading either the issues involved or the judgments or the documents which were filed in the matter .

The gist of the main argument of the oracles of “ secularism in danger” is this :

The Judgment of the Allahabad High Court in the Ram Mandir matter is based on faith , and , since faith has no place in law , therefore the judgment is invalid .

The question is that , is it correct that the Court has “wrongly” considered faith as the basis of the judgment in the present case ?

To answer that question it is important to look at the prayers in the plaints of Suit No. 4 of the Sunni Waqf Board and Suit No.5 filed by the “deities” Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi .

The first and basic prayer of the Sunni Waqf Board in it’s suit is :

“ (a) Declaration to the effect that the property indicated by letters ABCD in the sketch map attached to the plaint is a public Mosque commonly known as “Babari Masjid” and that the land adjoining the Mosque shown in the sketch Map by letters EFGH is a public Muslim graveyard as specified in para 2 of the plaint may be decreed”

(b) That incase in the opinion of the Court delivery of possession is deemed to be proper remedy , a decree of delivery of possession of the Mosque and graveyard in suit by removal of the idols and other articles which the Hindus may have placed in the Mosque as objects of worship be passed in the plaintiff’s favour , against the defendants.”

It is important to note that what was being asked for is not a title to the land , but a declaration that the site was a “Public Mosque”. This would mean an essential decision as to whether the site can be called a “Public Mosque” at all . This means a conclusion will have to be drawn as to whether the said site could be called a Public Mosque in Islamic Law . Now there are certain facts which have to be adjudicated in Islamic Law for a place to be called a Public Mosque and one of them is whether the Muslims ever treated this place as a public mosque ( this is a question of faith ) , another , whether Islamic Law allows construction of mosques on places of worship of others ( which is an interpretation of Islamic religious conceptions and practices …again a question of faith ) and third , what is the status of a supposed Mosque which is presently a place of worship of another religion ( again a question of Islamic conceptions , traditions and therefore ….faith ) . It is worthwhile to remember that the Sunni Waqf Board suit was filed after 12 years of the installation of the idols of Sri Ram Lalla . The Court was necessarily asked to go into that question not by the Hindus but by the Sunni Waqf Board in it’s plaint. It is also important to bear in mind that though it is being bandied about today that the dispute was a “title” suit , but what is most important to note is that the Sunni Waqf Board had never ever sought declaration that the “title” of the land be declared in their favour but had asked it to be declared a “Public Mosque” , with all it’s consequent conditions , which could not be decided without going into the “faith” of Muslims . The same “faith” which is a secular dirty word today .

At least in the Suit No. 5 filed by Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi title to the land was sought for :

“ (a) A declaration that the entire premises of Sri Ram Janma Bhumi at Ayodhya as described and delineated in Annexures I , II and III belong to the plaintiff deities ;

(b) A perpetual injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any obstruction in the construction of the new temple building at Sri Ram Janmabhumi Ayodhya”

The above claim of the “deities” ( who have the right to sue through their next friend under Hindu Law ) was sought on the ground that Hindus have always treated the site as “sacred” and the birthplace of Lord Rama and held the place as Asthan Sri Ram Janmabhumi , and therefore a deity in itself , on which Sri Ram Lalla presided ( therefore Sri Ram Lalla “Virajman”) as an idol and being another deity. Both the deities were plaintiffs in the suit. It was also contended that there was an existing temple which was broken to construct a Mosque and such was invalid since in Hindu Law once a deity (being the Asthan Sri Ram Janmabhumi in the present case ) always a deity and that in addition after the due consecration of the idol of Ram Lalla ( the other deity) in accordance with Hindu rites , the rights of all parties if any stood extinguished as the right of the original deity stood revived.

Moreover in Hindu Law the deity can never die and according to the Supreme Court itself in Mahant Ram Swarup Vs. S.P. Sahi , even if the idol is broken , or lost or stolen , the moment it is replaced by another idol and duly consecrated it takes the sanctity of the old . It is important again to clarify here that “deity” does not mean only an “idol” , which seems to be a broader misconception being held by the so called “secular” brigade . An idol is not a precondition for a “deity” to exist in Hindu theology and jurisprudence, the deity can in the words of the Supreme Court in Ram Janki Deity v. State of Bihar be shapeless , formless like Agni or Vayu , or even a simple piece of wood . The Supreme Court in the same case said that as long as the public feel there is a “divine presence” any place can be considered a temple.

Necessarily in course of the proceedings it had to be proved that Hindus have always treated the site as “sacred” and as the birthplace of Lord Rama. The deities did not have to prove that Lord Rama was born there as the claims of the deities in the plaint was not that Lord Rama was born there and therefore it is sacred , but , that the deities devotees “believed” that Lord Rama was born there and it is “ Rama Janmasthan” and therefore it is “sacred” to them and has always been treated as a deity.

The Allahabad High Court itself had previously held that the way to prove the existence of a deity which is claimed to have been existent from time immemorial is through the fact that the deity was recognized to be one and a representative of the divine form by the people who treated it as part of the divine . The Supreme Court in Balashankar Mahasankar Bhattjee and Others Vs. Charity Commissioner, Gujarat had clearly held that Gazetteers being official records evidencing public affairs , the Courts may presume the contents of Gazetteers as genuine specially about existence of old temples . Needless to say that the Imperial Gazetteers in the present case had consistently held that the Hindus had always treated this place as sacred and continued to worship there even though a Mosque existed on the site.

The fact of the sanctity of the site was also proved by voluminous contemporaneous documentary evidence of the above mentioned Imperial Gazetteers ( which are also admitted as valid evidence under the Indian Evidence Act) and travelogues of foreign travelers and who were traveling in the area and who recorded Hindu worship in the site , even , after the Mosque was constructed and the ASI Report which showed that even previous to the supposed Mosque there was an existent Hindu temple . The documents disclosed also included documents of Muslim noblemen who recorded the destruction of the temple built on the birthplace of Lord Rama and the construction of the mosque thereon.

Interestingly this is the point where everyone is attempting to rely on to show that the decision was one based on “faith” and not on law , when such was clearly a question of evidence and for which evidence was lead by both parties to show whether the Hindus did consider the site sacred. Historians appeared as expert witnesses from both sides to make the point . They were cross examined in detail . Documentary evidences were also produced and questions were put to the witnesses who were produced from both sides as experts on the point .Interestingly none of the great historians who hold forth in the matter today , people like Romilla Thappar or Irfan Habib ever made appearance to put forth their views before the Court . They should have deposed before the Allahabad High Court and allowed the parties to cross examine them as to their views and on what basis they held them , incase they were really interested in the matter. They chose not to do so understandably for the fear of being caught out under scrutiny .

The Court therefore considering the statements made in various plaints and written statements framed the following issues amongst various others on other points , which were to be decided finally by the Court:

(i) Issue No. 14:- Have the Hindus been worshipping the place in dispute as Sri Rama Janma Bhumi or Janam Asthan and have been visiting it as a sacred place of pilgrimage as of right since times immemorial? If so, its effect?

(ii) Issue No. 19(c):- Whether any portion of the property in suit was used as a place of worship by the Hindus immediately prior to the construction of the building in question? If the finding is in the affirmative, whether no Mosque could come into existence in view of the Islamic tenets, at the place in dispute?

Based on the said issues , evidence was lead that is (i) documents were disclosed by all plaintiffs and defendants to the suit , and (ii) witnesses were produced by all the parties and cross examined by other parties to the proceedings . After the evidence had been disclosed , then arguments were commenced by the parties by placing the law on the various issues and linking the law to the evidence and trying to prove that the statements made by them in their plaints ( statements of claims ) and written statements ( statements of opposition ) were true , and , the statements made by the other parties were not true or could not be proved . This process nearly took nearly 16 years after the directions of the Supreme Court in the Ismael Faruqui case and subsequent framing of issues by the Allahabad High Court . The great commentators of today were conspicuous by their absence during all this time .

In the present judgment the Majority Opinion thereafter went on to answer the issues raised in the Sunni Waqf Board suit by a majority that the disputed structure is not a public mosque and the mosque was constructed on an old temple based on the A.S.I. Report. The majority also held that prayers in the mosque had not been made from time immemorial and the disputed place is the “Ram Janmabhumi” and no valid mosque can come up in that place such being against Islamic law .

The majority thereafter addressing the questions raised in the suit filed by the two deities found that the deities are entitled to sue through their next friend . The majority also concluded that the Hindus believe that the disputed site is the birth place of Lord Rama being the Rama Janmasthan and the place is revered as a deity itself and therefore there can be no valid mosque built on the same .

Under the above circumstances it is apparent that the said conclusions directly arise out of the issues framed in the suit and are not a fanciful exploration of “faith” as is being attempted to be made out by the secular chorus .

What requires repetition is that the present case being a civil suit and not a “Government Commission of Enquiry” or a “People’s Tribunal” had to be argued only based on the statements stated in the plaints ( or statements of claim , filed by the various parties ) and the written statements ( or statements opposing the statements of claims, field by those opposing them in the various suits) . It is a fundamental proposition of civil procedure that no party can go beyond the assertions in the plaints and written statements filed by the parties in court in the case and all evidence and arguments has to be restricted to proving the facts stated in the plaint and the written statements only . A plaint and a written statement is the basis of any case , and , they are of utmost importance , as facts stated in them cannot be changed later for better or for worse .

There has been strong criticism of the present judgment from various quarters, a lot of which is unfounded and superficial . It is important in our view that for the formulation of any criticism of the present judgment the principles of civil litigation be kept in mind , otherwise we would be in danger of fundamentally misunderstanding the principle foundation on which the present case was decided . We invite everyone to participate in an “informed” and “enlightened” debate .