The Ayodhya judgement of the Lucknow Bench of Allahabad High Court delivered by Justices Sudhir Agarwal, Dharam Veer Sharma and S.U. Khan on September 30, 2010 on the Babri Masjid-Ram Janmabhoomi land dispute has at last broken the ice. It has at the best made a mark of being the first ever judicial verdict due on the chronic land dispute between the two religious communities that had gone into the oblivion of an indefinite long delay pending for the last sixty years. That apart, it is much of a compromise-type approach than a judgement on the real issues arising in a civil suit of title.
As per decision, the whole disputed land was directed to be divided into equal three parts, each having one-third portion of the land and the first part of one-third land where Babri mosque existed was given to Hindus for construction of their temple, the second part was given to the Muslims for mosque and third part given to the Nirmohi Akhara.
The division of the disputed land did please those who got their desired relief as a boon. However, on the other side it has left an indelible imprint of injustice of arbitrary discrimination and a scar upon the mind of the Muslim community in India who would have wished to be given their share of one-third land in the area where their Babri Masjid was already existing for the last 500 years. Such injustice to forget is difficult as in the words of Justice Brennan “nothing rankles more in the heart than the brooding sense of injustice”.
It is demanded that Muslims should be magnanimous to forget the placing of idols in the mosque’s sanctum sanctorum or the event of its demolition or parting with its possession in favour of Hindu brothers under the imperative of judicial verdict thinking it as a fait accompli; but one may have reason to doubt it. It may not be possible if the Muslim community remains gripped with the fear that their other mosques and religious places are not safe and can be targeted as threatened earlier. No doubt, protective laws do exist but violative acts of indomitable miscreants make them nugatory and government becomes helpless. This eats up the vitals of the country for its progress. As of now, Muslims are apprehensive that the judicial verdict would have the effect of justifying the criminal act of demolition of mosque in 1992 and now legally entitling to further demolish it which would hurt their religious susceptibilities extremely.
Unfortunately, the title suit filed by the leading plaintiff, UP Sunni Central Wakf Board, was dismissed as barred by time debarring it to effectively protect its Constitutional rights in the highly sensitive matter of the historical Babri Masjid to which the Muslim community is sentimentally and emotionally attached. It is the well established legal guiding principle laid down by the Supreme Court to be followed by all courts below that delay of whatever short of long period can be condoned in the interest of justice by liberal consideration and justice-oriented approach and court should decide matters on merit unless the case is hopelessly without merit. Even otherwise, it would look that the suit was not really time-barred as the mosque all along, since 1949 till date, was under the full control, possession and surveillance of the court of law and the government and this period was to be excluded to count the limitation period. In this period of control by the authorities what had happened is wonderful. On December 23, 1949 the said mosque was locked by an order of court; on December 29, 1949 group of persons placed idols in the mosque; on February 1, 1986 court opened the lock for worship; on December 2, 1992 court allowed karsewaks in the mosque; on December 6, 1992 the mosque was demolished and on September 30, 2010 the mosque was directed to be given for construction of temple by judicial order of High Court.
The most disconcerting feature of the judgement as found from the excerpts of it quoted by the print media is that the verdict is mainly based on the Astha (religious belief) of Hindus, who believe without proof that Ram was born at the place where Babri Masjid existed, and not on the basis of evidence on record. The Astha was indirectly supported by unauthentic rubble to prove fragments of broken temple material for supposing that temple was demolished prior to the construction of the mosque on the spot. It is for the first time on the annul of judicial history of India that the rule of decision of a court of law to decide the question of ownership right in property in a civil suit of title is based on religious belief. This sets a wrong precedent to decide property disputes just by Astha by deserting the law of evidence and deflecting the course of due justice to the deserving party in the suit, in utter violation of the fundamental principle of judicial procedure.
Legally, no suit can be decided by Astha of Hindus which is just an abstract notion of their subjective belief formed upon the philosophy of divine images that had never physically existed as living being in the history of mankind. Astha cannot be accepted as having any evidentiary value to prove the title of a disputed land or property. The established law to be applied is that where evidence has been led by contesting parties on questions in issues in a civil suit, then the truth or otherwise of a fact has to be adjudged on evidence led by the parties. The questions whether Ram was born at the place where mosque existed or whether mosque was constructed after demolition of temple are the questions of fact to be decided only by substantive evidence – documentary and oral and not by abstract notion or supposition.
The court has relied upon the excavated rubble report required from the Archaeological Survey of India which states that after excavation the broken temple pieces were found and they prove that Babri Masjid was built after demolition of existing temple. But, as nobody is believed to have constantly watched the excavation work on the spot all the time, the authenticity of the report prepared and submitted during the proceeding by ASI is not free from doubt. This report contains an opinion that has to be proved by the person who prepared it and signed and such a person is put to the test of cross-examination by the opposite party to the suit, as required under the Evidence Act. This report cannot be treated as public record either because it is not a part of already published and notified record of the ASI and was prepared for specific purpose as ordered by the court during the proceeding. This is challengeable as believably it does not provide any proof of the originality and genuineness of the so-called temple pieces, the age of pieces being 500 years old, the existence of temple on the spot of the mosque, the demolition of temple by any Muslim for construction of mosque. There is a strong possibility of creating a false proof by the interested persons which cannot be over-ruled as anything can happen during the period from 1949 up to date when mosque was under the control and possession of karsewaks by judicial order. The report is unreliable as such.
The question is: why should one go back to the circumstances existing 500 years before to create a presumption of a fact which legally requires to be proved by substantive evidence of present times, ignoring the evidence available on record? As the Astha of Hindus and the reported rubble of temple are not direct evidence of title, they are not evidence at all. Section 3 of India Evidence Act contains the meaning of the words “Not proved”. It says “a fact is said not to be proved when it is neither proved nor disproved”. Therefore, the questions whether Ram was born at the place where a mosque existed or whether a temple was existing at the place where the mosque existed are neither relevant mainly nor proved and the case could be decided plainly on the evidence as produced on record – documentary and oral.
One Judge of the Bench, Mr. Justice Sudhir Agarwal observed, “The place of birth cannot be proved by direct evidence; indeed no living being is capable of proving the birthplace of any of his parents four degrees or more remote in the line of ascent.” He further said, “The fact, therefore, has to be judged in accordance with the meaning of the word “proved” under Section 3 of the Evidence Act. The court either believes it to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. So, ‘belief’ and ‘supposition’ are perfectly legal and acceptable states which may lead to proof.”
Supposition is a subjective approach from which presumption of proof is drawn and not a direct evidence of fact. It is not a preferable mode of evidence where direct evidence is available. Moreover, the meaning of the word ‘proved’ says, “a fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence probable….” It would mean that the court first has to consider the evidence on record then only the later part of this law would apply. As believed, the court has not considered the matter on record with any reasons and simply went upon the supposition of fact. Supposition of fact indeed is appropriately used as rule of circumstantial evidence in criminal cases but in civil suit matters such a rule is not warranted by the context of the case where ownership right is to be decided.
Reference may be made to the case of Shiromani Gurdwara Prabandhak Committee V. Som Nath (2000) 4 SCC 146. There, the Supreme Court has held, “An idol is recognised to be a symbol for God… in the case of mosque there can be no idol or any images of worship, yet the mosque itself is conferred with the same sacredness as temple with idol.” It further held, “Faith and belief cannot be judged through any judicial scrutiny.” This law is binding on all courts in India under Art. 141 and Art. 144 of the Constitution of India. The Judges of the High Court Bench seem to have scrutinised the religious belief (Astha) of Hindus for which they do not seem to have jurisdiction by the aforesaid judgment of the Supreme Court. Moreover, if it was the case of Astha then Hindus and Muslims had equal sacredness and religious faith about their respective places of worship while Muslims consider the mosque to be the House of God. The question is: what made the court to prefer the mosque to be given to Hindus and why not to Muslims as they had equal Astha for their mosque as the House of God?
It is pertinent to note that Mr. Justice Sudhir Agarwal and Mr. Justice D.V. Sharma admitted in the judgment that the birthplace of Ram cannot be proved by substantive or direct evidence. As regards the ASI Report, Justice Agarwal as per print media report initially describes the ASI finding to be “inconclusive”, but later he agrees that Hindu temple was demolished whereafter the disputed structure (of mosque) was raised. The question is: If Astha is not direct evidence nor ASI finding is conclusive then how come these two factors have become the basis of rule of decision of the court? Another question is: If it is held by the court and also axiomatically believed by people that Ram’s birthplace cannot be proved to be at the spot where the mosque exists, then why should the mosque be given to the non-Muslim party for its demolition and construction of a temple there, particularly when the mosque has been existing there for the last 500 years and Muslims are sentimentally and emotionally attached to it?
The judgment is bad in law in the sense that it deserts the statutory law of evidence, violates the fundamental principles of judicial procedure, hits the fundamental rights guaranteed under Art.14, 25, 26, and 29 of the Constitution of India by discrimination, deflects the course of legal justice and sets a bad precedent for future.
[The writer is Advocate Supreme Court of India]