Peace and justice: On Ayodhya verdict

There comes a time when the need for peace and closure is greater than the need for undoing an injustice. In allowing a temple to come up through a government-appointed trust at the disputed site in Ayodhya, the Supreme Court has apparently chosen a path most conducive to social harmony. To compensate the Muslim litigants, who were deprived of the centuries-old Babri Masjid through an illegal act of demolition, the court has asked for the allotment of a five-acre plot of land elsewhere in Ayodhya that may be used for building a new mosque. That this is more of moral consolation by way of a political compromise and less of

adjudication in recognition of their religious rights is obvious. The final award will always be a source of discomfiture for those to whom closure goes beyond ensuring peace in a communally polarised environment. But what is most welcome about the 1,045-page verdict of a Bench of five judges is its unanimity. For, it sends out a message that the judiciary has, with a single mind, ventured to give legal burial to a prolonged dispute that began as a minor litigation, expanded into a divisive political cause, and became a festering wound on the body-politic for years. The fact that the case is over at last must come as great relief to all peace-loving people.

This sense of relief masks the bitter truth that the fear of a Hindu backlash if there was an adverse verdict was genuine. After nearly three decades of unrelenting pursuit of communal polarisation, the majoritarian, revanchist forces in the country have fatigued their secular adversaries into passive acquiescence. The Bench indeed has done well to record its revulsion at two incidents that represented an onslaught on the psyche of secular India: the desecration of the masjid in 1949 when Hindu idols were planted surreptitiously under its central dome, and the planned destruction of the whole structure by the foot soldiers of Hindutva on December 6, 1992. But what is most disappointing about it is that the relief spelt out by the Bench may amount to legitimising the very demolition it unequivocally condemns. Having declared that the suits are representative of the two communities, organised violence by one party ought not to have been ignored. It is common knowledge that the Vishwa Hindu Parishad, which spearheaded the temple movement with the active backing of the Bharatiya Janata Party and organised the demolition of the mosque, got a foothold in the litigation through an individual who represented the deity, Ram Lalla, as “a next friend” in a fresh suit filed in 1989.

A reading of the judgment reveals that the outcome is not wholly in line with the evidentiary conclusions the court itself reaches. It notes that archaeological evidence — procured only because excavation was made possible by the demolition and as such not available to the parties at the time of institution of the suits — only shows the existence of a 12th century Hindu religious structure underneath, but does not prove any demolition or explain what happened in the intervening centuries. It acknowledges that namaz was offered at the mosque between 1857 and 1949, and declares that Muslims did not abandon it, but offers no relief even though their religious rights stand proved. The entire disputed area covering both the inner and outer courtyards are awarded to one side contrary to its own conclusion that Muslims had a right, albeit a contested one, in the inner courtyard. While it holds that Hindus had possessory right over the entire outer courtyard to the exclusion of Muslims, it does not decide whether they had exclusive title; on the other hand, it rejects the Muslim claim solely on the ground that they failed to prove “exclusive title”. Also, the court says evidence of Hindu worship was available for a period prior to 1857, while there was proof of namaz only after 1857, without accounting for the fact that it was in that year that a massive riot took place that led to the British administration putting up a railing to divide the mosque from the Hindu shrines in the outer courtyard. The case has been decided on the balance of probabilities that Hindus have proved a better title than Muslims. While it is true that “preponderance of probablities” is the standard of proof in civil law, it is doubtful whether this can be invoked to the exclusion of an acknowledged right belonging to the other side.

Why critics of majoritarianism on the 

Ayodhya verdict are wrong

Bringing to a closure a case whose legal genesis can be traced back to 1885, the Supreme Court, in a 1,045-page, unanimous verdict by a five-judge constitution bench comprising Chief Justice of India Ranjan Gogoi, CJI-designate S.A. Bobde, Justices D.Y. Chandrachud, Ashok Bhusan and S.A. Nazeer, on November 9, ruled that the entire 2.77 acre disputed land in Ayodhya be handed over to a trust to be constituted for the construction of the Ram temple. Underscoring in the second paragraph of the introduction of the judgment that the Supreme Court had been 'tasked with the resolution of a dispute whose origins are as old as the idea of India itself', the apex court overturned the 2010 verdict of the three-judge bench of the Allahabad High Court, which had trifurcated the land between the Nirmohi Akhara, Ram Lalla Virajman and the Sunni Central Waqf Board.

Critics of the verdict have argued that the Supreme Court has relied on "faith instead of law and reason" and that the judgment has "sided with majoritarianism". Both assertions are wrong.

The Supreme Court verdict has not invoked the brute calculations of majority and minority--the game that politicians of all hues excel at--but by taking recourse to a higher principle, that of equality before the law.

The reasoning, according to the learned judges, was that while both parties Ram Lalla Virajman and the Sunni Central Waqf Board had competing rights over the disputed site, lawyers representing the Hindus had provided better evidence of continuous worship compared to the Muslims.

It is best to quote directly from the judgment itself: 'For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests. At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equality before the law. The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship and prayer are equal.'

The judgment cited travelogues written by William Finch, who visited India between 1607 and 1611 A.D., and Father Joseph Tieffenthaler, who came to the country between 1766 and 1771 A.D., which described the spot as the birthplace of Lord Ram and to the fact that actual worship was conducted on the site.

The judgment also cited an Archeological Survey of India (ASI) report which indicated the existence of a 'pre-existing underlying structure dating back to the 12th century', a structure which the ASI said was of 'Hindu origin'. The Muslim parties could not provide a record of ownership for the three centuries after the construction of the mosque in 1528 A.D., nor offer evidence that 'namaz' was offered in the mosque. 'The conclusion that place of birth of Lord Ram is the three dome structure can, therefore, be reached,' the judgment said.

The court thus concluded that 'faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janmaasthan [sic] 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 Hindus, the five-judge bench said, had established a clear case of possessory title to the outside courtyard by virtue of long, continued and unimpeded worship at the Ram chabutra.

The Supreme Court verdict dismissed the petitions of the Nirmohi Akhara and the Shia Waqf Board. Describing the act of placing an idol in the Babri Masjid in 1949 as an 'act of desecration' and the demolition of the Babri Masjid in 1992 as 'illegal', the Supreme Court decided on principles of title, evidence and facts, not faith and belief. The apex court' in the name of 'equity', awarded the Sunni Central Waqf Board five acres of the acquired land near the site or in a 'suitable prominent place in Ayodhya'.

The verdict brings to an end the festering one-and-a-half centuries-old legal battle over the title to the disputed structure, an issue that has been--in the words of the apex court-'a flashpoint of continued conflagration'--unleashing in its wake enormous sectarian violence all across the country. "The Supreme Court verdict in the Ayodhya-Babri Masjid case has given a decent legal burial to this long-simmering conflict," says Dr Rizwan Kaiser, professor of history at the Jamia Millia University in Delhi.

Can the Supreme Court's unanimous verdict be reviewed in the future? Although the petitioners can on technical grounds file a curative petition or ask for the verdict to be reviewed by the five-judge bench of the apex court, the hearing can only be held within a closed-door chamber and will not amount to any substantive changes in the unanimous verdict. Although All India Muslim Personal Law Board counsel Zafaryab Jilani said, "I respect the Supreme Court verdict but am not satisfied and will examine and file review within 30 days," Uttar Pradesh Sunni Central Waqf Board chairman Zafar Farooqui, in sharp contrast, asserted the opposite viewpoint, claiming that the board "will not file a review petition".

Senior advocate Sanjay Hegde compares the historic Ayodhya verdict to the landmark US nine-judge verdict in 1954 which held that racial segregation in public schools was unconstitutional. Within India, such historic parallels are rare. However, in terms of the sheer length of hearings by the apex court, the 41-day hearings in the Ayodhya verdict make it the second longest case heard by the apex court after the famous Kesavanand Bharati Sripadagalvaru and Ors v. State of Kerala and Anr in 1972-73, which outlined the basic structure of the Constitution in a marathon 68-day hearing by a 13-judge constitution bench of the apex court.