Ravi Kiran jain
The Ayodhya Judgment,based on the “Faith and belief of the Hindus”, has forsaken the established principles of law of evidence and cannot therefore be said to be based on a fair -trial.
Two judges out of three have specifically given a finding that the place of birth of Lord Rama was at the disputed site .According to the judgment of Justice Sudhir Agarwal :- “it is declared that the area covered by the central dome of the three domed structure i.e,the disputed structure being the deity of Bhagwan Ram Janmsthan and the place of birth of Lord Rama as per faith and belief of the Hindus belong to plaintiffs (suit no. 5) and shall not be obstructed and interferred in any manner by the defendants”
According to the judgment of Justice D.V.Sharma :- “a disputed site is the birth place of Lord Ram .Place of birth is a juristic person and is a deity .It is personified as the spirit of divine ,worshipped as the birth place of Lord Rama as a child .Spirit of divine ever remains present everywhere at all times for anyone to invoke at any shape or form in accordance with his own aspiration and it can not be shapeless and formless also.
For determining whether Ram idols will stay where they are ,the court framed an issue whether Ram was born at the disputed site ? Whether or not Ram was born at a particular place required evidence .It is impossible to prove the birth place of a particular person born centuries before by any evidence. .The court has held the disputed site to be birth place of Ram on the basis of “faith” “Faith” is not an “evidence” within the meaning of Evidence Act .
Much has been said criticizing the 6000 page Ayodhya Judgment on various aspects by eminent jurists .Many of them have expressed the view that “faith” cannot be the basis to determine a fact. One distinguished (Retd) Judge of Allahabad High Court Justice Kamleshwar Nath has however written in a column of Hindustan Times (Lucknow edition) dated 1st Nov 2010 that “faith is a fact as defined in the Indian Evidence Act,it is a state of mind recognized by law”. He expressed this view while adversely reacting to the speakers of the National Seminar in Lucknow on 30.10.10 in which the speakers expressed the view that ‘Ayodhya ,Mandir –Masjid’ dispute is "based more on faith than facts" and is therefore "extra -legal”. According to Justice Nath "These comments are based on ignorance, ‘they do not know that faith is a fact as defined in Indian Evidence Act 1872’.It is a state of mind recognized by law." It appears that the views expressed by Justice Nath and the finding given by two judgments of two judges of Ayodhya disputes are based upon the mis-reading of definitions of words ‘fact’ and ‘proved’ in sec 3 of the Evidence Act According to sec 3 of the Evidence Act ‘fact’ means the following:
"Fact" - "Fact" means and includes -
1. Anything, state of things, or relation of things, capable of being perceived by the senses;
2. Any mental condition of which any person is conscious.
And the word "proved" is defined in the Evidence Act as follows:-
“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 so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.”
It is thus clear that Justice Nath and the two judges deciding Ayodhya dispute have misconstrued the words , "any mental condition which any person is conscious" in the definition of "fact" in sec 3,by saying that “faith” is a “state of mind" and therefore 'faith' is a 'fact' as defined u/s 3 of the Evidence Act 1872 .They appear to have mis-interpreted the meaning of the word "consciousness” by equating it with “faith”. According to the new International "WEBSTER'S COMPREHENSIVE DICTIONARY" the meaning of the word 'faith' is given as "belief without evidence " and the meaning of the word "consciousness" in the dictionary is "the state of being conscious ;sensation; knowledge; any form of intellectual activity or its product in direct and convincing knowledge ,whether of external or internal objects”.
'Faith' and 'consciousness' are two different states of mind . Mental condition of which any person is "conscious " is a "fact" but a mental condition of a person having ‘faith’ cannot be ‘fact’ within the meaning of Sec 3 of the Evidence Act.
Mental condition is a fact but inference arrived at by a person by a process of ratiocination ,being not a mental condition of that person, is not a fact .(see page 22 and 23 of Law of Evidence by Ratanlal and Dhirajlal 22nd Enlarged edition 2007.
Since “faith” is “belief without evidence” according to its dictionary meanining,
how can a court give a finding that the people had such “faith” that Ram was born at the disputed site and how they came to acquire such faith, in what manner and since when? It was for the first time in the night intervening 22nd-23rd Dec 1949 that the statues of the deity Ram were placed surreptitiously in the mosque ,under the central dome .It was then that some Hindus started asserting their so called “faith” that it was the birth place of Ram and began to worship for the first time within the mosque and then obtained court order restraining Muslims to pray in the mosque .Can this fact be sufficient to hold that the disputed site was “birth place of Lord Rama as per faith and belief of Hindus” ?Obviously not.
Whether Masjid was built at the site of a Hindu Temple ?
The other finding which has been given by two of the three judges is that the Masjid was built at the site of a Hindu temple. None of the parties could lead any evidence on this issue and the finding is based solely upon the controversial report of the Archaeological Survey of India .
Paragraph 3672 and 3673 of the judgment of Justice Sudhir Agarwal read as follows : “ What lie underneath ? This question is of extreme complication ranging in a period of more than 500 years’ of history . No clear picture emerges from various history books etc. In fact ,the contemporary record did not answer the issues ,one or the other way ,with certainty……….Extraordinary situations demand extraordinary steps and strategy .In the peculiar circumstances ,this Court decided to appoint an Expert body for scientific investigation ,well recognized in the field of archaeology /history and ordered ASI to go for excavation at the site in question and submit report . The question formulated for ASI ,was “whether there was any temple/structure which was demolished and a mosque was constructed on the disputed site .”
It is thus clear that there was no evidence for “what lie underneath ?” It means there was no evidence to establish the fact of there ever being a temple .If excavation had not been ordered and ASI report had not been obtained the court had no option but to give a finding that there was no evidence of a temple being existing few hundred years ago .The order for excavation was passed on 5.3.2003, more than 10 years after the demolition in1992.If the mosque had not been demolished there would have arisen no question for excavation.
The idea to pass an order of excavation struck to the Court on 1.8.02 when the Court considered the observations of D Mandal archaeologist in his book “Ayodhya –Archaeology after demolition”, . Para 212 of the Judgment reads as follows:
“On 1.8.2002 , this Court referring to issues No. 1(b) (Suit-4), 14(Suit-5) and the reference made to the Hon’ble Supreme Court by the President of India , noticed that one of the basic issue engaging attention of the Court in these suits is “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”. Considering the observations of Sri D.Dhaneshwar Mandal ,Archaeologist in his book “Ayodhya –Archaeology after demolition” that sufficient archaeological material is available regarding temple –mosque prompting need for further excavation at Ayodhya ,this Court required the parties to give their views/suggestions ,why the disputed land be not allowed to be excavated by Archaeological Survey of India .Para 214 of the judgment reads as follows:
“The objections were considered and decided by Court’s order dated23.10.2002 .The relevant extract thereof is as under:
‘Having heard the learned counsel for the parties, we are of the opinion that we should get a report in regard to foundations, if any ,of any structure at the site in question .One of the issues in suit is whether there was any Hindu temple or any Hindu religious structure existed and the alleged Babri Masjid was constructed after demolishing such temple /structure at the site in question” .
It is extremely necessary to notice here that the objections were summarily disposed of by this order on23.10.2002 and excavation was ordered by order dated 5.3.2003 and report obtained. It may also be noticed here that on 23.10.2002 and 5.3.2003 when these orders were passed none of the three Judges’ who have delivered the final judgments on 30.8.2011, was a member of the bench.The bench was presided over by Justice S.N.Agrawal with Justice S.Rafat Alam and as two other Judges. Thereafter parties argued at length that the court had no power to order excavation. These arguments have been met now in the final judgement by Justice Sudhir Agrawal on which the other two judges including Justice S.U.Khan agreed.InPara 214 the judgement says:
“The question is whether the court has power to take this course without any of the parties requesting the court for tracing out the foundations on the disputed site……..The second question is why the Court should exercise its power suo-moto in the matter. The reasons are twofold-Firstly, to remove any suspicion or doubt as to the facts of the case which is in dispute and secondly to find out the truth regarding contentious truth laid by the party………The third question is why the Court should exercise its power at this stage when the evidence of all the parties have not closed as yet………………Lastly, it is contended that the report,if obtained , may not be very accurate and the exercise may be futile”. After putting all these questions to itself the Court answered these questions by observing: “As noted above, the plaintiffs of O.S No. 5 of 1999 have themselves relied upon the evidence in regard to excavation, leveling entrenches laid near the site of disputed areas. It would be appropriate that the matter may be thoroughly investigated to find out the truth”
.The finding given by the two judges out of three that the Masjid was built at the site of Hindu temple relying upon the controversial ASI report which was based upon excavations done during the BJP regime in the Centre was criticized by all concern. .The court did not take into account all the evidence contrary to this fact turned up by ASI’s own excavation : “The presence of animal bones throughout ,as well as the surkhi ,lime mortar (all characteristics of Muslim presence)ruled out the possibility of Hindu temple having been there beneath the mosque by the archaeologists .” says a statement jointly given by the following persons which has been published in Economic and Political Weekly of Oct 9, 2010.
Romila Thapar ,K.M.Shrimali ,D.N.Jha,K N Pannikkar ,Amiya Kumar ,Shireen Moosvi ,Jaya Menon,Irfan Habib ,Suvira Jaiswal ,Kesavan Veluthat ,D Mandal , Ramakrishna Chatterjee,, Aniruddha Ray ,Arun Bandopadhyay ,A Murali , VRamakrishna, Arjun Dev ,R C Thakran ,H C Satyarthi ,Amar Farooqui ,B P Sahu ,Biswamoy Pati ,Lata Sngh ,Utsa Patnaik ,Zoya Hasan ,Prabhat Patnaik ,C P Chandrashekhar ,Jyati Ghosh ,Archana Prasad ,Shakti Kak ,V M Jha , Prabhat Shukla , Indira Arjun Dev ,Mahendra Pratap Singh ,Ram Rahman,M K Raina ,Sohail Hashmi ,Parthiv Shah ,Madan Gopal Singh , Madhu Prasad ,Vivan Sundaram ,Geeta Kapur ,Rajendra Prasad ,Anil Chandra ,Rahul Verma ,Indira Chandrashekhar , Sukumar Muralidharan ,Supriya Verma ,N K Sharma , S Z H Jafri ,Farhat Hasan ,Shalini Jain ,Santosh Rai ,Najaf Haider ,R Gopinath ,R P Bahuguna , G P Sharma ,Sitaram Roy , O P Jaiswal ,K K Sharma .
These persons have demanded that the site notebooks, artefacts,and other material evidence relating to the ASI’s excavation s be made available for scrutiny by Scholars , historians and archaeologists .
By giving this findingt , the High Court has given a legal shape to the political agenda of the Sangh Parivar “Mandir wahin Banaenge” and has legitimized the Masjid demolition on 6th Dec 1992 giving them a way to construct a “Grand Temple” at the site of the demolished temple.The political campaign of sangh parivar appears to have influenced the judicial proceedings In the ordinary course ,the suit was to be tried by a Munsif .It was only in 1989 ,after the 5th suit had been filed and the two major political parties had already come in race with each other regarding Ram Janam Bhoomi ,that the suit was got transferred to High Court ,and that too to be tried by a bench of three Judges .Thereafter the composition of the bench went on changing because of retirement , elevation , transfers etc. of the Judges from time to time .
There used to be two Hindu Judges in the bench and one Muslim Judge .The first suit was filed on 16.1.1950 and the fifth and the last suit was filed on 1.7.89 .It was thereafter on 10.7.89 that the High Court transferred the suits to itself .It was obviously on account of the reason that the Mandir –Masjid controversy became a matter of high –profile politics ,that the suits were got transferred to the High Court to be tried by a bench of three Judges .From 1950 till 1989 ,4 suits remained pending before the Munsif and the Mandir –Masjid dispute remained confined only to be decided in the litigation in thelower court as it did not become part of agenda of political parties by then .It started becoming agenda of political parties after 1984 elections.
Justice S U Khan joined the bench by the order dated 21.12.09 of the then Chief Justice as Justice Rafat Alam (whom Justice S U Khan replaced) took oath as Chief Justice of Madhya Pradesh High Court on 20.12.09 .The name of Justice Rafat Alam for being appointed as Chief Justice of Madhya Pradesh High Court was cleared by the collegiums of the Supreme Court ,some time in Oct 2009. The Ayodhya matter had reached a concluding stage of hearing by that time .It was a matter of common knowledge in the corridors of the Bar that Justice Sudhir Agarwal had already dictated a substantial part of the judgment by then. Justice Rafat Alam took a view that as his name had been cleared for Chief Justice ship of another High Court,he would not continue to sit in the bench to hear the matter .There was no justification for him to take such a view .If he had not taken such a stand the suits could have been disposed of by the time he took oath as Chief Justice of Madhya Pradesh High Court on 20.12.09.
Justice S U Khan joined the bench with a handicap, that the other two judges had virtually heard the matter finally and had already made up their minds and also started dictating the judgments .At this stage ,hearing started afresh because ,it became a different bench ,although ,the other two judges still remained in the bench. In a situation like this, it is quite obvious that the re-hearing of all the counsel in all the suits, before a bench of three judges, out of whom the two judges had already heard the matter at great length, the third judge would not be able to cope up with the process of deciding independently and he would be influenced by the opinion already framed by the other two judges. This aspect is reflected in the following observations of the Judgment of Justice S U Khan.
“My judgment is short, very short. Either I may be admired as an artist who knows where to stop, particularly in such sensitive, delicate matter or I may be castigated for being so casual in such a momentous task. Sometimes patience is intense action, silence is speech and pauses are punches.
I have not delved too deep in the history and the archaeology. This I have done for four reasons. First, this exercise was not absolutely essential to decide these suits. Second, I was not sure as to whether at the end of the tortuous voyage I would have found a treasure or faced a monster (treasure of truth or monster of confusion worst confounded). Third, having no pretence of knowledge of history I did not want to be caught in the crossfire of historians. Fourth, the Supreme Court, in Karnataka Board of Waqf vs. Government of India, 2004 (10) SCC 779 has held in Para -8 as follows:-“As far as a title suit of civil nature is concerned, there is no room for historical facts and claims.”
It seems that Justice S.U.Khan was over conscious of his being a Muslim Judge ,in this Mandir –Masjid dispute .He also appears to have the apprehension that ,there may be violent agitations by one party or the other after the Judgment ,which is quite evident by the following observations in his Judgment .
“As this judgment is not finally deciding the matter and as the most crucial stage is to come after it I remind both the warring factions of the following. “The one quality which epitomized the character of Ram is tyag [sacrifice]. When Prophet Mohammad entered into a treaty with the rival group………”.
It appears that Justice S.U.Khan had to take a short cut on account of the aforesaid handicap. His over consciousness of being a Muslim Judge impelled him to make an appeal to the minority community which virtually amounts to suggesting them to accept that they are Second Class Citizens in a country where the Hindus are in Majority and therefore they should accept the Majority Verdict .This aspect is reflected in the following observations in his Judgment.
“Under the sub-heading of demolition, I have admired our resilience. However we must realize that such things do not happen in quick succession. Another fall and we may not be able to rise again, at least quickly. Today the pace of the world is faster than it was in 1992. We may be crushed. “Only those species survived which collaborated and improvised” Muslims must also ponder that at present the entire world wants to know the exact teaching of Islam in respect of relationship of Muslims with others. Hostility, peace, friendship, tolerance, opportunity to impress others with the Message, opportunity to strike wherever and whenever possible, or what? In this regard Muslims in India enjoy a unique position. They have been rulers here, they have been ruled and now they are sharers in power (of course junior partners).
They are not in majority but they are also not a negligible minority (after Indonesia, India has the highest number of Muslims in the world). In other countries, either the Muslims are in huge majority, which makes them indifferent to the problem in question, or in negligible minority, which makes them redundant. Indian Muslims have also inherited huge legacy of religious learning and knowledge. They are therefore in the best position to tell the world the correct position. Let them start with their role in the resolution of the conflict at hand.”
Over consciousness of Justice S U Khan and his feeling of short coming for joining the bench late is also reflected by the following observation of his Judgment:
“Before parting I thank Hon,ble the Chief Justice C.K.Prasad (now an Hon,ble Judge of Supreme Court ) for giving me the responsibility and providing opportunity to me to decide this historical case by inducting me in this Bench. We are also thankful to Hon,ble the Chief Justice H.L.Gokhale (now an Hon,ble Judge of Supreme Court )for inducting Hon,ble Sudhir Agarwal ,J in this bench who is extremely labourious , very upright and considerably balanced”.
The Race Between Two Major Political Parties
In 1984 Elections in which Rajiv Gandhi had a clean sweep, BJP could secure only 2 seats in Lok Sabha .The Sangh Parivar started a campaign for the construction of a magnificent Ram Janam Bhoomi Temple at the site and by 1985 built up a sizeable support in the Hindu Community.In January 1986, locks were removed from the mosque and Ram bhakts were permitted to offer prayers to Ram lala .It is said that the Prime Minister Rajiv Gandhi ordered the Chief Minister Veer Bahadur Singh to do so who got the District Administration to ensure this .The two major political parties BJP and the Congress started a race on pandering to communal Hindu sentiments .In 1988 ,Hindutva Organizations led by the RSS organized a mass campaign for building a grand temple exactly where the Mosque stood .They claimed that the Mosque stood at the precise site where Ram was born .By the time of the fifth and final suit was filed in July 1989 the political climate had changed beyond recognition
Union Home Minister Buta Singh signed an agreement with the VHP on 17th August 1989,that bricks for constructing the temple would be allowed to be brought from all over UP without hindrance and collected at the plot No. 586 near the mosque .This agreement was in violation of an order of the Allahabad High Court given on 14th August that no construction activity could be taken at that spot.
Later ,the VHP announced that ‘kar sewa’ would be performed to lay the foundation stone .This was also a violation of the judgment given two days ago,prohibiting any such activity .This repeated defiance ,of the orders of the court did not weigh with the Prime Minister who inaugurated the campaign of Congress Party the next day from twin city of Faizabad , and announced that the objective of the party was to establish Ram Rajya .Soon thereafter the BJP President Advani ,at Palampur ,after the National Executive Meeting ,announced that the inclusion of the construction of the temple in its Election Manifesto “would fetch votes “ for it .It would thus appear that the two major political parties were in a race on this issue.
“A new dimension was added to the campaign for the construction of the temple with the formation of the Government in Uttar Pradesh in June 1991 by the Bhartiya Janta Party (BJP) which declared its commitment to the construction of the temple………….The focus of the temple construction movement from October 1991 was to start construction of the temple by way of ‘kar-sewa’ on the land acquired by the Government in Uttar Pradesh while leaving the disputed structure intact.”has been noticed by( The Supreme Court in M.Ismail Farooqui’s case,(AIR 1995 SC 605)
“ The judgments delivered by the Lucknow Bench of Allahabad High Court on September 30 on the Babri Masjid cases not only flagrantly violate the law and the evidence but a binding unanimous judgment of the Supreme Court on the Babri Masjid case itself (M. Ismail Faruqui and Others vs Union of India and Others (1994)6 Scc 360. It sanctified the conversion of a historic mosque ,which stood for 500 years into a temple.” Says A.G.Noorani in his article “Muslims Wronged” in Oct 22 ,2010 issue of Frontline .
Noorani further says in the same article , “On the Babri Masjid ,for 60 years from 1950 to 2010, Muslims have been woefully wronged by every single court ruling ,including that of the Supreme Court after the demolition of the mosque on Dec 6, 1992”.
“The absence of any condemnation of the vandalism of the demolition of the Babri Masjid on Dec 6, 1992 is a conspicuous aspect of the Ayodhya verdict of the Allahabad High Court .” says T.R.Andhyarujina , an eminent jurist and Senior Advocate of Supreme Court in his article ( The Hindu )Oct 5,2010.
T.R.Andhyarujina further says in the same article : “The Ayodhya judgments of the Allahabad High Court make no note of the vandalism of Dec 6, 1992 .On the other hand ,they take the demolition as a fait accompli, as if the disputed 2.77 acre site was vacant land .After holding that the area beneath the central dome of the erstwhile Masjid must be allotted to Hindus because of their faith that Lord Ram’s place of birth was there ,and the areas covered by the Ram Chabutara and Sita Rasoi should be allotted to the Nirmohi Akhara ,the court has said that the remaining area of the disputed site should be divided , two-thirds to the two Hindu plaintiffs and one third to the Muslim plaintiff by metes and bounds .These judgments, therefore legalize and legitimize the 1992 demolition, as the decree of the court proceeds on the basis that there is no Masjid on the disputed site today .
It is an elementary rule of justice in courts that when a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage,(as the demolition in 1992 did in favour of the Hindu plaintiffs ),the court would first order the restitution of the pre-existing state of affairs .”
It may be noticed here that the Supreme Court in its judgment of 1994 said of the demolition: “Within a short time, the entire structure was demolished and razed to the ground .Indeed, it was an act of ‘national shame’. What was demolished was not merely an ancient structure, but the faith of the minorities in the sense of justice and fair play of the majority .It shook their faith in the rule of law and constitutional processes”.
The Muslims today are once again feeling dismayed and betrayed by legitimization of the Masjid –demolition by the Ayodhya judgment .
The suits were transferred to the High Court to be tried by a Special Bench of three Judges in the wake of a high –profile campaign ,after the trial started in the High Court ,the profile became all the more high on subsequent developments ,starting from the demolition on 6th Dec 1992 followed by setting up of Librahan Commission and CBI Investigation and prosecutions of L.K.Advani and other big-wigs ,who even came into power in the Centre and many States ,while the investigations were still going on. But for this hype ,this Judgment instead of running into 6000 pages would may well have been given only in 6 pages .The two points which required verdict in these suits were:-
1. Was the place under Babri Masjid the birth place of Lord Ram.
2. Was there or not a temple on the land on which Babri Masjid was built.
Mr.Rajinder Sachar only 4 days before the verdict came i.e. on Sep 26 2010 ,in an article which was published in “JANATA” rightly said that it was impossible for any Court to give a finding about place of birth of Lord Rama and even if there was a temple on the land 400 years ago on which Babri Masjid was built ,the suit would be barred by time . He said in the aforesaid article:
“I say this in view of the precedent of the case of Masjid Shahid Ganj in Lahore decided by the Privy Council in (1940). In that case there was admittedly a Mosque existing since 1722 A.D. But by 1762, the building came under Sikh rule and was being used as a Gurdwara. It was only in 1935 that a suit was filed claiming the building was a Mosque and should be returned to Muslims.
The Privy Council while observing “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and in violability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely” and then went on to hold “The Property now in question having been possessed by Sikhs adversely to the waqf and to all interests there under for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Limitation Act. “On the same parity of reasoning even if temple existed prior to the building of Masjid 400 years ago, suit by VHP etc has to fail”.
The controversy was thus concluded by Judgment of Privy Council in Masjid Shahid Ganj case and could have been decided by a Short Judgment.
India became Independent on 15th August 1947 .The idols were surreptitiously placed in Dec 1949 .The first suit was filed on 16.1.1950 .We became Republic on 26.1.1950 The first Parliamentary Elections took place in 1952. Looking back ,we find that the people of this country had an urge to participate in the political process ,and this was evident in the elections that took place till 1967 and then in 1977 and 1989 ,and even a common man could then hope to get elected ,because by that time poll politics had not come in the vicious grip of casteisation, communalization and criminalization.It was in 1989 ,when the 5th suit was filed and all the suits were transferred to the High Court that the Poll politics came in the vicious grip of Casteisation , communalization and criminalization.In1991 ,when the coffers were found empty ,the Government led by Narasimha Rao with Dr. Manmohan Singh as his Finance Minister threw the country into the debt trap of the World Bank under the guise of liberalization and economic “reforms”.All these gave rise to nexus between criminals ,unscrupulous politicians and corrupt bureaucrats.
After 1989 ,issues started becoming non-issues and non-issues became issues .There is a terrible economic in-equality ,disease ,illiteracy and human sufferings .Millions are exploited .We require a United India to restore our economic and political sovereignty and achieve the objectives contained in Part IV of the Constitution .