Ayodhya judgment excerpts: Law distinct from ideology, religion – india news


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The facts, evidence and oral arguments of the present case have traversed the realms of history, archaeology, religion and the law. The law must stand apart from political contestations over history, ideology and religion. We must remember that it is the law which provides the edifice upon which our multicultural society rests. The law forms the ground upon which, multiple strands of history, ideology and religion can compete. By determining their limits, this Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another.

There is one unanimous judgment delivered by this Bench. In deciding the appeals before us, we have come to the following conclusions.

The pleadings in Suit 5 demonstrate that even according to the plaintiffs, the mosque was built by Mir Baqi, a commander of Babur’s forces, during the time of Babur. The precise date of the construction of the mosque is a matter which has no practical relevance to the outcome of the present controversy.

On the night of 22 December 1949, the idols of Lord Ram were placed inside the mosque. On a preponderance of probabilities which govern civil trials, the finding of the High Court that the idols of the deity were installed in the intervening night of 22/23 December 1949 commends itself for our acceptance.

It was not disputed by the litigating parties that the plot of land in which the disputed structure existed was recorded as Nazul land.

It is inappropriate for this Court to enter upon an area of theology and to assume the role of an interpreter of the Hadees. The true test is whether those who believe and worship have faith in the religious efficacy of the place where they pray. The belief and faith of the worshipper in offering namaz at a place which is for the worshipper a mosque cannot be challenged. It would be preposterous for this Court to question it on the ground that a true Muslim would not offer prayer in a place which does not meet an extreme interpretation of doctrine. This Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.

The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution. The State has, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The Act reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.

No submissions were made challenging the legal personality of the first plaintiff in Suit 5. The first plaintiff has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent any express dedication or trust. The legal personality of the first plaintiff is recognised.

The recognition of ‘Asthan Sri Ram Janam Bhumi’ as a juristic person would result in the extinguishment of all competing proprietary claims to the land in question. The extinguishing of competing claims would arise not by virtue of settled legal principles, but purely on the basis of the faith and belief of the devotees. This cannot be countenanced in law. In a country like ours where contesting claims over property by religious communities are inevitable, our courts cannot reduce questions of title, which fall firmly within the secular domain and outside the rubric of religion, to a question of which community’s faith is stronger. The second plaintiff in Suit 5 – ‘Asthan Shri Ram Janam Bhumi’ is not a juristic person.

In Suit 1, the pleadings indicate that the right asserted was not a private right, but a right in common with and for the benefit of other Hindu devotees to pray at the disputed property. The right claimed was that of the “Hindu public” to worship at the disputed property without undue interference. The right asserted on behalf of the larger “Hindu public” does not stand extinguished upon the death of the original plaintiff and can be pursued by his son who is also a worshipper.

No submissions were made challenging the legal personality of the first plaintiff in Suit 5. The first plaintiff has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent any express dedication or trust. The legal personality of the first plaintiff is recognised.

The recognition of ‘Asthan Sri Ram Janam Bhumi’ as a juristic person would result in the extinguishment of all competing proprietary claims to the land in question. The extinguishing of competing claims would arise not by virtue of settled legal principles, but purely on the basis of the faith and belief of the devotees. This cannot be countenanced in law. In a country like ours where contesting claims over property by religious communities are inevitable, our courts cannot reduce questions of title, which fall firmly within the secular domain and outside the rubric of religion, to a question of which community’s faith is stronger. The second plaintiff in Suit 5 – ‘Asthan Shri Ram Janam Bhumi’ is not a juristic person.

In Suit 3, the entire case of Nirmohi Akhara is of the deprivation of its shebaiti rights by the Magistrate’s order under Section 145. Suit 3 filed by Nirmohi Akhara is not a suit for possession which falls within the meaning and ambit of Article 142 of the Limitation Act. Neither Article 47 nor Article 142 is attracted. Suit 3 filed by Nirmohi Akhara is governed by the provisions of Article 120. The period of limitation under Article 120 is six years. Nirmohi Akhara claims that the cause of action arose on 5 January 1950. The suit was instituted on 17 December 1959. Hence, the suit is outside the prescribed period of limitation and is barred.

The case of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the deity not being a party to the earlier suits and based on the apprehension that in the existing suits, the personal interests of the leading parties were being pursued without protecting the independent needs and concerns of the deity of Lord Ram, is well and truly borne out by the proceedings as they unfolded in the proceedings before this Court. Suit 5 is maintainable as a suit instituted by a next friend on behalf of the first and second plaintiffs in the absence of a lawfully recognised shebait.

A wealth of arguments have been urged on the archaeological evidence in the present dispute. The ASI submitted its final report on 22 August 2003. The process of excavation was carried out in the presence of parties and was governed by the directions issued by the High Court to ensure impartiality and transparency.

There is adequate basis in the material contained in the ASI report to lead to the following conclusions:

(i) The Babri mosque was not constructed on vacant land;

(ii) The excavation indicates the presence of an underlying structure below the disputed structure;

(iii) The underlying structure was at least of equal, if not larger dimensions than the disputed structure;

(iv) The excavation of the walls of the underlying structure coupled with the presence of pillar bases supports the conclusion of the ASI of the presence of a structure underlying the disputed structure;

(v) The underlying structure was not of Islamic origin;

(vi) The foundation of the disputed structure rests on the walls of the underlying structure; and

(vii) Artefacts, including architectural fragments which have been recovered during excavation have a distinct non-Islamic origin. The conclusion which has been drawn by the ASI that the nature of the underlying structure and the recoveries which have been made would on stylistic grounds suggest the existence of temple structure dating back to the twelfth century A.D. would on a balance of probabilities be a conclusion which is supported by evidence.

Significantly, the ASI has not specifically opined on whether a temple was demolished for the construction of the disputed structure though it has emerged from the report that the disputed structure was constructed on the site of and utilised the foundation and material of the underlying structure. ASI, as an expert body refrained from recording a specific finding on whether the underlying structure was demolished for the purpose of the construction of a mosque. The ASI report has left unanswered a critical part of the remit which was made to it, namely, a determination of whether a Hindu temple had been demolished to pave way for the construction of the mosque. A determination of title was not obviously within the remit of ASI. A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI.

Analysing the depositions of Hindu and Muslim witnesses, the following facets can be gleaned:

(i) Hindus consider Ayodhya as the birth-place of Lord Ram. Hindu Shastras and religious scriptures refer to it being a place of religious significance;

(ii) The faith and belief of the Hindus is that Lord Ram was born inside the inner sanctum or ‘Garbh Grih’ right below the central dome of the three domed structure;

(iii) What Muslims call the Babri mosque, the Hindus consider as the Ram Janmabhumi or the birth-place of Lord Ram;

(iv) The faith and belief of the Hindus that Lord Ram was born in Ayodhya is undisputed. Muslim witnesses also stated that Hindus have faith and belief in the existence of the Janmasthan; and

(v) Both Hindu and Sunni witness testimonies indicate that the disputed site was being used for offering worship by devotees of both faiths;

The Hindu witnesses have furnished statements of their faith and belief in the place under the central dome being the birthplace of Lord Ram. The cross-examination of the witnesses has not established any basis for the court to be led to the conclusion that the faith and belief of the Hindus, as portrayed through these witnesses is not genuine or that it is a mere pretence. Whether a belief is justified lies beyond ken of judicial inquiry. Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshipper. This, we must do well to recognise, applies across the spectrum of religions and their texts, Hinduism and Islam being among them. The value of a secular constitution lies in a tradition of equal deference. The fact that a belief and faith is held is however a matter which is distinct from the actual place where worship was offered.

The plaintiffs in Suit 5 placed reliance on the accounts of numerous travellers and Gazetteers to highlight the religious importance attached to Ayodhya and the disputed site for the Hindus. Historical records of travellers (chiefly Tieffenthaler and the account of Montgomery Martin in the eighteenth century) indicate:

(i) The existence of the faith and belief of the Hindus that the disputed site was the birth-place of Lord Ram;

(ii) Identifiable places of offering worship by the Hindus including Sita Rasoi, Swargdwar and the Bedi (cradle) symbolising the birth of Lord Ram in and around the disputed site;

(iii) Prevalence of the practice of worship by pilgrims at the disputed site including by circumambulation (parikrama) and the presence of large congregations of devotees on the occasion of religious festivals; and

(iv) The historical presence of worshippers and the existence of worship at the disputed site even prior to the annexation of Oudh by the British and the construction of a brick-grill wall in 1857.

The accounts of the travellers must be read with circumspection. Consulting their accounts on matters of public history is distinct from evidence on a matter of title. An adjudication of title has to be deduced on the basis of evidence sustainable in a court of law, which has withstood the searching scrutiny of cross-examination. Similarly, the contents of gazetteers can at best provide corroborative material to evidence which emerges from the record. The court must be circumspect in drawing negative inferences from what a traveller may not have seen or observed. Title cannot be established on the basis of faith and belief. Faith and belief are indicators towards patterns of worship at the site on the basis of which claims of possession are asserted.

The plaintiffs in Suit 4 have sought a declaration that the property is a public mosque and [a part of it] a Muslim graveyard. The suit in the circumstances is a suit for possession of immoveable property falling in the description provided by the first column of Article 142. The act of placing the idols under the central dome on the night intervening 22/23 December 1949 effectively desecrated the mosque. This was an ouster of possession. The suit has been instituted within a period of twelve years of the date of alleged dispossession on 23 December 1949 and is hence within limitation.

The claim of possession is based on the plea that there has been a continuous use of the mosque for offering prayers since its inception and that this use has been long, continuous and exclusive. It is impossible for the plaintiffs in Suit 4 to set up a case of being in peaceful, open and continuous possession of the entire property.

In spite of the existence of the structure of the mosque, possession as asserted by the Muslims cannot be regarded as meeting the threshold required for discharging the burden of a case of adverse possession. 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.

In seeking to establish their rights over the disputed land, the parties have turned back the clock of human history, to establish a point of genesis, where one party’s claims over the disputed property were uncontested: to establish the first right and the first wrong. The evidence and arguments submitted before this Court have canvassed four distinct legal regimes. The legal consequences of actions taken, proprietary rights perfected, or injuries suffered in previous legal regimes can only be enforced by this Court if they received implied or express recognition by subsequent sovereigns. Absent such recognition, the change of sovereignty is an act of State and this Court cannot compel a subsequent sovereign to recognise and remedy historical wrongs.

The claim in Suit 4 is that since the date of its construction until the mosque was attached in December 1949, Muslims offered prayers continuously in the mosque. But, a crucial aspect of the evidentiary record is the absence of any evidence to indicate that the mosque was, after its construction, used for offering namaz until 1856-7. Several witnesses who deposed on behalf of the plaintiffs in Suit 4 stated that they had visited the Babri Masjid to offer namaz. There is evidence on record to hold that Muslims offered Friday namaz at the mosque and had not completely lost access to or abandoned the disputed property.

There was a consistent pattern indicating possession and worship by the Hindus at the outer courtyardafter the setting up of the railing in 1856-7. The offering of worship at Ramchabutra which was situated in close proximity to the railing coincided with the attempt by the colonial administration, post the communal incident of 1856-7, to conceive of the railing as a measure to maintain peace and order. The extensive nature of worship by the Hindus is indicated by the existence of specific places of worship and the permission by the administration for the opening of an additional point of entry in 1877 due to a large rush of devotees. In the face of a consistent pattern of worship by the Hindus in the outer courtyard after 1856-7, the documentary material does not indicate either settled possession or use of the outer courtyard by the Muslims. In so far as the inner courtyard is concerned, it appears that the setting up of the railing was a measure to ensure that peace prevailed by allowing the worship of the Muslims in the mosque and the continuation of Hindu worship outside the railing. In so far as the worship by the Muslims in the inner courtyard is concerned, the documentary material would indicate that though obstructions were caused from time to time, there was no abandonment of the structure of the mosque or cessation of namaz within.

The plaintiffs in Suit 4 were 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. It was urged that even in the absence of an express dedication, the long use of the disputed site for public worship as a mosque elevates the property in question to a ‘waqf by user’. No evidence has been produced to establish worship at the mosque or possessory control over the disputed property over the period of 325 years between the alleged date of construction in 1528 until the erection of railing by the colonial government in 1857.

If the contention urged by the plaintiffs in Suit 4 that the entire disputed property is a waqf by user is accepted, it would amount to extinguishing all rights claimed by the Hindus in the disputed property as a site of religious worship. The consequences that stem from recognising the entire disputed property in the present case as waqf by user is a mirror image to the claim of the plaintiffs in Suit 5 of recognising the land itself as a juristic person. The consequence would be the destruction of the rights of another community to offer worship by virtue of the internal tenets of a specific religion which have been recognised for a specific purpose. This may not be extended to the extinguishment of competing and established religious rights of another community in the same property.

The disputed site has witnessed a medley of faiths and the co-existence of Hindu and Muslim practices, beliefs and customs. A blend of Hindu and Muslim elements emerges from the religious and architectural tradition associated with the erstwhile structure which embodied features both of a temple and a mosque. They were symbols of a syncretic culture. Their co-existence was at times, especially before 1856, accepting and at others, antagonistic and a cause of bloodshed. Yet, the distinctive features of the site, embodying both Hindu and Islamic traditions led to the creation of a space with an identity of its own. The real significance attached to the composite structure is evidenced by the nature and the length of use by both of the parties.

Though, the case of the plaintiffs in Suit 4 is that the mosque was constructed in 1528 by or at the behest of Babur, there is no account by them of possession, use or offer of namaz in the mosque between the date of construction and 1856. For a period of over 325 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British, the Muslims have not adduced evidence to establish the exercise of possessory control over the disputed site. Nor is there any account in the evidence of the offering of namaz in the mosque, over this period; On the contrary, the travelogues (chiefly Tieffenthaler and Montgomery Martin) provide a detailed account both of the faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of the actual worship by the Hindus at the Janmasthan.

On 6 December 1992, the structure of the mosque was brought down and the mosque was destroyed. The destruction of the mosque took place in breach of the order of status quo and an assurance given to this Court. The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law.

The High Court on a finding that Hindus and Muslims were in joint possession directed a three-way bifurcation of the disputed site, one third each being assigned to the Muslims, Hindus and Nirmohi Akhara. The High Court was not seized of a suit for partition. The High Court was called upon to decide the question of title particularly in the declaratory suits, Suits 4 and 5. The High Court has adopted a path which was not open to it. Having come to the conclusion that Suit 3 (filed by Nirmohi Akhara) and Suit 4 (filed by Sunni Central Waqf Board) were barred by limitation, the High Court proceeded to grant relief in Suit 5 to the plaintiffs in Suits 3 and 4. This defies logic and is contrary to settled principles of law.

In the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a brick grill wall in 1857. Their possession of the outer courtyard stands established together with the incidents attaching to their control over it. As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857.

Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. After the setting up of the brick grill wall, the structure of the mosque continued to exist and there is evidence to indicate that namaz was offered within its precincts. The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship.During the pendency of the suits, the entire structure of themosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.

We are of the view that on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly decreed by directing the allotment of alternate land to the Muslims for the construction of a mosque and associated activities.

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.

Having weighed the nature of the relief which should be granted to the Muslims, we direct that land admeasuring 5 acres 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 within the city of Ayodhya.

We are of the view that it would be necessary to direct the Central Government to frame a scheme in exercise of the powers conferred upon it by Sections 6 and 7 of the Ayodhya Acquisition Act 1993 to set up a trust or any other appropriate mechanism to whom the land would be handed over in terms of the decree in Suit 5.

The scheme shall incorporate all provisions necessary to vest power and authority in relation to the management of the trust or the body chosen for the vesting of the land.

Nirmohi Akhara’s claim to be a shebait stands rejected. However, having regard to the historical presence of Nirmohi Akhara at the disputed site and their role, it is necessary for this Court to take recourse to its powers under Article 142 to do complete justice. Hence, we direct that in framing the scheme, an appropriate role in the management would be assigned to the Nirmohi Akhara.

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