- NL Sena
Can you walk into a mosque or a temple, offer ‘mental worship’ to a deity, then claim ownership in the name of that deity?
For most of the recent past, the Supreme Court has been in the spotlight for its judgements on constitutional law or taxation law or administrative law, all of which are based on arguments of law rather than disputes of fact. The Ayodhya judgement is an exception since it dealt with multiple civil lawsuits where the parties were disputing facts and could be resolved only on the basis of evidence marshalled by the litigants. The strongest of cases can collapse for lack of evidence. As the old saying goes, “It’s not what you know, it’s what you can prove in court.”
To evaluate the evidence provided by the contesting parties, it is necessary to first understand the relief that was sought from the court in the three lawsuits that were settled on November 9.
Gopal Singh Visharad’s lawsuit of 1950
The first lawsuit was filed by Gopal Singh Visharad, a resident of Ayodhya, on January 16, 1950, shortly after idols of Hindu gods were smuggled into the Babri Masjid. This led to the government locking up the mosque and preventing entry to it, leading Visharad to seek a “declaration” from court, recognising his right to pray at the site in keeping with his religion and custom. He also sought to prohibit the removal of the idols, which were placed under the central dome of the mosque in December 1949, but didn’t seek possession of the land upon which the mosque then stood.
Sunni Waqf Board’s lawsuit of 1961
The second lawsuit was filed by the Sunni Central Waqf Board in late 1961. Waqf Boards are generally entrusted with managing the Muslim places of worship. In this case, the Sunni Waqf Board sought a judicial declaration that the Babri Masjid was a public mosque and demanded its possession. It also asked for the idols to be removed from the mosque.
DN Agarwala’s lawsuit of 1989
The third lawsuit was filed in 1989 by the deity Ram Lalla and Ram Janma Bhumi (the land on which Ram was born) through their next friend DN Agarwala, a former judge of the Allahabad High Court. Unlike the 1950 lawsuit, which sought the right to pray at the premises without the removal of the idols, Agarwala’s lawsuit sought a declaration that the entire premises belonged to the plaintiff deities along with an injunction against any interference in the building of a temple after the demolition and removal of the existing “buildings and structures”.
What did the litigants have to prove?
Ordinarily, a party filing a lawsuit to establish its ownership over a piece of land has to prove that the land belonged to it either through documentary evidence – title deed, revenue records – or through actual possession that can be established through oral testimony. For example, if a person has to establish ownership of a plot of land, they would produce a sale deed recording the land was purchased, along with other evidence such as oral testimonies of neighbours or government records showing their payment of property tax.
The Ayodhya case was extraordinary because the Hindu parties were trying to establish possession on the basis that they had been offering prayers in the outer courtyard (Ram Chabutra) as well as the inner courtyard under the dome of the mosque even before the idols were installed there.
A claim based on the offering of worship is quite different from showing ownership through control of the premises by building walls or fences or by paying taxes. I doubt there was a precedent where the Hindus made an ownership claim on the basis that they offered prayers on a disputed piece of land that was open to the public.
The problem with such an approach is that it can be difficult, if not impossible, for a court to assess “worship”? What are the ingredients of “worship”? Can “mental worship”, as claimed by some of the Hindu witnesses in this case, suffice to prove a claim? In other words, can you walk into a place of public worship, be it a mosque or a temple, offer “mental worship” to a specific deity, and then claim ownership to the land in the name of your deity?
What was the evidence produced?
The difficulties of adjudicating faith-based claims are evident from a reading of this judgement. After declining to rely on either the Archaeological Survey of India’s report on whether another Hindu structure lay under the demolished mosque (“A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI”) or travelogues (“Consulting their accounts on matters of public history is distinct from evidence on a matter of title”) the court was left with only oral testimonies of witnesses. As expected, all Hindu witnesses (who were deposing in the 1990s about events between 1934 and 1949) claimed that they had been offering prayers in both the outer courtyard and the inner courtyard of the disputed site even before the installation of the idols in 1949, while the Muslims were not offering namaz. (“According to the witness, no Muslim had offered namaz in the mosque after 1934.”)
It is not clear how the Hindus were worshipping in the inner courtyard when it was accepted, even by the court, that there was no idol on the premises until 1949. Some of the witnesses claimed there was a picture or a calendar of Hindu gods while others claimed to have prayed to their god through “meditation” or “mental worship”. This is evident from the cross-examination of one of the witnesses:
Question: From 1934 to 1949, there was no idol below the dome, to whom was Aarti, bhog etc offered?
Answer: The importance of the disputed building, the pictures on the calendars, mental worship and meditation were such things for which worship, bhog, recitation, Aarti were performed.
Similarly, the Muslim witnesses claimed they regularly offered namaz in the mosque before 1949 and that they never witnessed Hindus offering prayers at the structure that was the Babri Masjid.
The Supreme Court accepts the fact that the Muslims offered namaz in the mosque until 1949. (“However, there’s evidence to show that namaz was offered in the structure of the mosque and the last Friday namaz was on 16 December 1949.”) A piece of corroborative documentary evidence in favour of the Muslims was the Waqf inspector’s report stating that despite threats, Friday namaz was being held until the mosque was sealed following the desecration in 1949, and that the Muslims held the lock and keys until then. (“No Azaan is allowed nor Namaz performed except on the day and time of Jumaah. The lock and the keys remain with Muslims.”)
If the court accepted that namaz was being offered until 1949, it is evident that at least some of the Hindu witnesses were not aware of all the facts or were being untruthful in their testimonies to the court. That should have been enough to disregard their testimonies entirely. There does not seem to be any similar documentary evidence to impeach the Muslim testimonies, although given the breadth of evidence in this over 1,000-page judgement, I could be mistaken. However, as already mentioned, evidence law is not about what you know but what you can prove in court.
Strangely, the court placed the evidence of both sides on an equal scale, treating both as credible. On this basis, it accepts as proven the fact that both parties were praying at the disputed site. Once both claims were accepted, and both parties placed on an equal pedestal, the court basically indulged in the equivalent of a judicial coin toss to lean in favour of the Hindus over the Muslims with little to no reasoning as to why the Muslims had to move out of the property when the court accepted they were offering namaz until 1949 and that they had the lock and keys to the mosque until it was attached by the government.
The original sin of the court was to entertain a claim to land ownership based on the fact that worship was being offered at the site by devotees. Once such a relief was deemed acceptable, the chain of absurdities that followed was inevitable. The Indian republic is now in a dangerous new phase. The triumphalism that is bound to follow the construction and inauguration of the Ram temple in Ayodhya will send a worrying message to minorities about their place in ‘New India’.