A look at the key arguments in the case
While Indians wait for the gavel to drop in famed Ayodhya-Babri Masjid case, here’s a quick re-cap of the 40 day-long arguments in the Supreme Court: a look at what transpired within as well as outside the Court in one of the longest running hearings of the Supreme Court of India.
The Ayodhya land dispute case, at 40 days, is the second longest continuous hearing in the history of the Supreme Court. The longest running hearing was during the Keshavananda Bharti case which was heard for 68 long days. It was this verdict which resulted in the basic structure doctrine.
The present case arises out of one of the most traumatic and dark phases in post-indepenent India’s history. On the back of a movement that challenged India’s foundational constitutional base, and broke the back of the rule of law –the Ramjanmabhoomi movement – the Babri Masjid was demolished in broad daylight on December 6, 1992. The five year long high pitched campaign that preceded the demolition heightened the communal divide; this has in the past 27 years only worsened. The orchestrated demolition of the Babri Masjid by the Kar sevaks, the Rath yatra, the riots in Bombay that followed, have left a lasting blot on the secular standing of India.
The Supreme Court has reserved its judgment after 40 days of marathon hearings in the case. Let’s have a look at the turn of events within the courtroom, the provocations without; the contentions of the parties, and the rebuttals, all of which will finally lead us to what may be termed as another “landmark” judgment of the Supreme Court.
The Civil Suit
The case popularly known as the Ayodhya-Babri Masjid case is listed in the Supreme Court as Shishir Chaturvedi And Ors. Vs. Union of India and Ors (W.P.(C) No. 000151 – / 2019). It was admitted on February 26, 2019 before a five judge Bench comprising of the Chief Justice, Justice S.A. Bobde, Justice D.Y. Chandrachud, Justice Ashok Bhushan and Justice S. Abdul Nazeer. Arguments have been heard by this bench until the hearings concluded three days ago, on October 16, 2019. The appeals reached the Supreme Court after appeals were made to the Allahabad High Court order, nine years ago. Efforts had been made to get the hearings off to a start before the recent general elections. However, in October 2018, the Supreme Court decided that the land dispute case would only be listed before an “appropriate bench” in January 2019.
A case where God is party
In a civil dispute for land, God has been made a party and he appears through a friend. How did it happen? Although, these arguments go back decades, it was in July 1989 thatDeoki Nandan Agarwal, a former judge of the Allahabad High Court, filed a petition seeking to become the “sakha” or friend of the deity and its birthplace in the title suits and the Allahabad High Court allowed the application! The Allahabad High Court observed that till the other parties contested this application, Agarwal will conduct the title suit on behalf of Ram Lalla and Ram Janmasthan. After Agarwal’s death, the representation changed a few times, albeit all attributed to the Vishwa Hindu Parishad, as of now Triloki Nath Pandey is the “friend” of Ram Lalla in Court and will also become custodian of the land in case of a favourable judgement for that party.
A five-judge constitution bench was set up and on March 8, the Supreme Court decided to refer the matter to a mediation committee headed by Justice (retd) F.M.I. Khalifullah and comprising of senior advocate Sriram Panchu and Venkatratnam Ravishankar Ramanayakanpet (also known as Sri Sri Ravi Shankar, the founder of Art of Living).
To encourage mediation, the then Chief Justice of India J.S. Khehar had said in 2017, “Give a bit, take a bit. Make an effort to sort it out. These are issues best decided jointly. these are issues of sentiments and religion. The court should come in the picture only if you cannot settle it. If the parties want me to sit with mediators chosen by both the sides for negotiations, I am ready to take up the task.”The Court had fixed the seat for the mediation process in Faizabad of Uttar Pradesh, which is located around seven kilometres from Ayodhya.
Media reported that Oon August 2, 2019, the mediation process was formally closed after the mediation panel failed to make breakthroughs and reached an impasse in the matter. Questions were also raised about the process itself: allegations that the committee had organized only one meeting with all sides present, which was attended by 41 persons and was one of the first meetings to be held by the mediators!
The Indian Express reported that it had learnt that the side asking for a mosque submitted a proposal in a sealed envelope, during the committee’s second meeting in Faizabad, for a mosque and a temple adjacent to each other within the disputed area.
The Sunni Waqf Board and the Nirvani Akhara, two of the main parties of the case, wished to resume the mediation process in September this year which is when the Supreme Court allowed the process to carry on alongside the Court hearings. It was as a result of this parallel proceeding, therefore, that, on the last day of the hearings, a mediation report was submitted in a sealed envelope to the Supreme Court. The Wire reported that, “according to informed sources, the Sunni Waqf Board and some but not all of the Hindu litigants have signed the settlement proposal.”
The hearings were beset by unruly behaviour and all manner of rumour-mongering. On the very last day, sections of the media ‘reported’ that ‘Muslim parties’ were willing to withdraw their claim over the disputed land. These claims were strongly refuted by advocates for the Sunni Waqf Board through a joint statement.
The Marathon Hearings
The marathon hearings which began on August 6 saw varied submissions from all the parties. Throughout the hearings, while several levels of arguments were raised by the parties, there were also rebuttals with sharp questions posed by the Supreme Court. It is likely that before November 17 when the present Chief Justice, Ranjan Gogoi retires, we will have the verdict!
On the first day of the hearing itself the Supreme Court asked the Counsel for Nirmohi Akhara, senior advocate, Sushil Kumar Jain to prove the existence of a temple since the Allahabad High Court judgment had stated, “There is no evidence to show that there existed any temple and that there were idols in it”.
Senior Advocate K, Prasaran, while putting forth his arguments that the disputed site was the birthplace of Lord Ram said that it was difficult to show proof of birth after so many centuries and hence said that unshakeable faith in believers was evidence that Ayodhya was the birthplace of Lord Ram.
At the hearing held on September 24, when asked by the court whether they dispute the Chabutra as the place of birth of Lord Ram, the counsel for the Sunni Central Wakf Board had said, “Earlier we had. But the district judge said it was worshipped believing it to be the birthplace.” The Chabutra, is the spot 60-65 feet from the Babri Masjid which was worshipped by Hindus as Ram’s birthplace, following the Faizabad district Judge decision of 1885. The Court had also asked why “Ain-i-Akbari” — written in the 16th century, the period when the Babri Masjid was allegedly constructed — did not mention the mosque. To which counsel for the Waqf Board said that the book had only important details and the mosque has gained importance only now, back then it was just another mosque.Later senior advocate Rajeev Dhavan, also representing the Waqf board had clarified that the Waqf Board had not accepted that the Chabutra was Ram’s birth place.
About a week into the continuous hearings, Senior Counsel Vaidyanathan, the counsel for Ramlalla Virajman, read out the report of the commissioner who was appointed to inspect the disputed site in 1950 which described the presence of pillars with images of Lord Shiva.
The Court had also raised questions about architectural features believed to be unearthed at the disputed site which are not typical to a mosque, to which Mr.Dhawan for the Waqf Board said that it could be a result of cultural assimilation and that there is no direct evidence of an image of a god. He hence went on to say that the Hindu side arguments were based on theology rather than legality and concrete proof.
A Senior Advocate, Meenakshi Arora, for the Waqf Board had even questioned the ASI (Archaeological Survey of India) report which has been relied upon heavily by the Hindu parties. She said that the report was full of inferences and conjectures, to which Justice S.A. Bobde responded that the findings of the ASI may not be authoritative. Later on, however, another advocate, Mr. Dhawan submitted that they did not want to question the authorship of the ASI report and graciously apologised for delving into the claim. Even the Bench said the inferences from the ASI report were drawn by “cultivated and studied minds” and was not an ordinary opinion.
Justice D.Y. Chandrachud had commented that after a railing, which was constructed by the British, following an armed clash between Hindus and Muslims in 1855, the Ram Chabutra was constructed and it could mean that worshippers believed that praying at the ‘chabutra’ meant actually praying at the central dome and that they were actually praying at the central dome. While Senior Advocate Dhawan for the Waqf Board called this a “conjecture”, the Court held it to be a “preponderance of probabilities”.
The senior advocate, Vaidyanathan said that Muslim parties have argued that they have perfected the title by “long and exclusive use” of the disputed property. That would be a definite admission that Hindus or the temple or the deity was the previous owner if Muslims claim benefit of adverse possession doctrine, he said.
Mr. Dhawan had also submitted that Hindus only had “prescriptive right” to enter and offer prayers at the site and it does not mean that they had ownership claim over the disputed property, after which the Court asked him that if Hindus were allowed to enter and pray, would it not dilute their (the Waqf Board) claim of exclusive ownership.
Mr. Dhavan, also said that Muslims have had title over the land since 1528, and Hindu parties did not claim title between 1885 and 1989. Dhavan urged the judges to not decide the case based on archaeological evidence and to use only legal parameters. “We are concerned with the proposition of law and the archaeological evidence will not and cannot decide my title over the property,” he said. “Why knock down one of the domes of the Babri mosque in the 1934 riots and trespass to install the idols of Lord Ram in 1949 if they [the Hindu parties] already had the title? Why did they have to do all this?”
During the last legs of the hearing, Mr. Dhavan, for the Waqf Board rejected the claims of the Hindus, on the disputed site, saying that the belief, travelogues and Skand Purana do not give Hindus title of land.
The last leg
On the final day of hearing emotions were running high, not only for the parties and the counsels in court but also in the news media and public in general following every update that came from the Court. In this context, the NBSA (News Broadcasting Standards Authority) issued guidelines for news channels to follow, in the coverage of the news, which were flouted by news channels like Aaj Tak which invited a lot of flak on social media.
Reports, based on rumours of the original title claimants, Muslim parties conceding their claim to the disputed land were also vehemently denied.
During the final stages of hearing, scenes of senior advocate Dhavan, tearing up a map were latched on to by lawyers representing All India Hindu Mahasabha. As soon as the incident took place, the news spread widely and later few members of the quorum clarified in Court itself that Mr. Dhavan did so only after the Court had allowed him to do so.
Many statements such as “Muslims can pray in any other mosque in Ayodhya. There are 55-60 mosques in Ayodhya alone. But, for Hindus this is the birth place of Lord Ram…which we cannot change” “Once a temple always a temple” were made by the Hindu parties. Albeit, the latter was a statement made after the Muslim parties’ submission of “Once a mosque always a mosque.” Hindutva parties also tried to argue that a “historical wrong committed by Babur by building a mosque” needs to “be rectified”.
The last day of the hearing seemed like a rapid fire round between counsel on either side when they were being given the last opportunity to put forth their contentions in Court.
Beyond the Hearings
Advocates for the Muslim parties faced targeted attacks for representing ‘Muslim’ parties. Mr. Dhawan sought contempt proceedings to be initiated against a man who had written an intimidating letter to him; he further said this was just one of the several incidents of threats he received.The Supreme Court also condemned a statement made by Uttar Pradesh State Minister who had said that Ram temple will be built on the disputed land as the “Supreme Court is ours”.
As the hearings of the case entered the last leg, the Ayodhya administration imposed section 144 of the Code of Criminal Procedure until December 10, which prohibits the assembly of five or more people. Additionally, Ayodhya District Magistrate Anuj Kumar Jha’s order prohibits people from flying drones and unmanned aerial vehicles within Ayodhya without permission, while a ban has also been imposed on overloading of boats. For Diwali, the manufacture and sale of firecrackers will only be allowed after permission is taken from the concerned magistrate. The Uttar Pradesh government issued an order that no field officials will be given any leave till November 30, not only due to festive season but also due to security concerns arising ahead of the verdict in the case.
The final verdict
In September, the deadline for the hearings was set by the Supreme Court for October 18, however, the same was concluded two days prior, thus giving a little more time to the Court, even amidst the Diwali vacation to deliver final judgment.
The three main parties of the case have predominantly relied upon very distinct arguments of law, memory and faith to fortify their case. The Nirmohi Akhara relied upon faith and collective memory and made three central arguments. First, that the members of the sect are the real worshippers of Ram. Second, all pujas have been done by the pujari appointed by the Nirmohi Akhara in the past. Hence, they have an inalienable right over this pious land as ‘shabait’ (devotee). Third, the Nirmohi Akhara has had possession over the land, including the mosque, since 1934. For this reason, its ownership claim must be recognised.
The Waqf Board’s arguments concentrates on the land on which the Babri Masjid once stood and its legal status as an Islamic wakf property. The board’s lead counsel Rajeev Dhavan in his concluding arguments said that the board was in continuous possession of the inner courtyard on which the now demolished dome of the mosque once stood, and sought restoration of status quo ante as on December 5, 1992.Dhavan also argued that the Waqf board’s ownership of the outer courtyard had never been questioned nor claimed claimed any title over the land till 1989. They had limited prescriptive rights — restricted to worshipping at the outer courtyard or the outer courtyard, he said. Courts had recognised this as far back as 1886. He argued that his client historically possessed the place since 1854 when it was given grants by the British to manage the affairs of the mosque. There was no claim by the other side to the title between 1885 to 1989, he contended. There is also no proof even in the ASI report that a temple was destroyed to build a masjid, he argued.
Two members of the bench hearing the case, Justice SA Bobde (the next Chief Justice) and Justice DY Chandrachud sought to know if the access of devotees to the outer courtyard — Ram Chabutra and the Sita Rasoi — would not detract from the title of the board to the land. Counsel Rajeev Dhavan denied this, arguing that any such access was a limited elementary right and would not detract from the title of the board. “It is a prescriptive right and nothing more,” he said. “Everything that the British did (like) opening the eastern door to the devotees to pray was for maintaining law and order and signifies nothing more,” he argued. “Beliefs, travelogues and Skanda Purana will not give them title. They sought permission to pray and now they lay claim over the title.” He alleged that the Ram Janmabhoomi Nyas was a socio-political outfit created to claim title over the land in 1989. This was the year, the RSS-Bharatiya Janata Party (BJP) took up the political movement, and aggressively sought votes in the name of the ‘Ram Temple’ electorally. Three years before, the sister body, the more rabid Vishwa Hindu Parishad (VHP) had first announced this religio-political mobilisation that was to change the course of modern India’s history.
On the last day of hearing, a sudden and fresh ‘mediation proposal’ was offered by the Wakf Board.Advocate Shahid Rizvi, representing the Waqf board clarifies that the board will withdraw the suit only if its ‘reasonable conditions’ are accepted by all the parties. Rizvi said that since this is a civil case the parties, as per the provisions of Civil Procedure Code, could continue mediation efforts and submit a final report before the verdict is pronounced.
Politically, the dice is loaded against the title owners of the land. It is to be seen if India’s legal and constitutionally bound institutions remain insulated from the politics of the most powerful.