THE Communist Party of India (Marxist) has passed a resolution regarding the decision of Allahabad High Court in Ramjanmabhoomi-Babri Masjid matter, which is remarkable in it’s simplicity, both, being simple as to what it wanted to say (none of the Congress pussy footing here), and, being simplistic in the knowledge of the intricacies of Indian law. Of course the Communists being so used to “People’s Tribunals”, procedural fairness is something which is alien, but it is surprising to read some of India’s eminent lawyers and constitutional experts commenting on the judgement, seemingly without context and seemingly without reading either the issues involved or the judgements or the documents which were filed in the matter.
The gist of the resolution of the Communist Party and the main argument of the oracles of “secularism in danger” is this: The judgement of Allahabad High Court in Ram Mandir matter is based on faith, and, since faith has no place in law, therefore the judgement is invalid.
The question is that, is it correct that the Court has “wrongly” considered faith as the basis of the judgement in the present case? To answer this question it is important to look at the prayers in the plaints of Suit No. 4 of the Sunni Waqf Board and Suit No. 5 filed by the “deities” Sri Ram Lalla Virajman and Asthan Sri Ramjanmabhoomi.
The first and basic prayer of the Sunni Waqf Board in it’s suit is: “(a) Declaration to the effect that the property indicated by letters ABCD in the sketch map attached to the plaint is a public mosque commonly known as “Babari Masjid” and that the land adjoining the Mosque shown in the sketch map by letters EFGH is a public Muslim graveyard as specified in para 2 of the plaint may be decreed.”
(b) That incase in the opinion of the Court delivery of possession is deemed to be proper remedy, a decree of delivery of possession of the Mosque and graveyard in suit by removal of the idols and other articles which the Hindus may have placed in the Mosque as objects of worship be passed in the plaintiff’s favour, against the defendants.”
It is important to note that what was being asked for is not a title to the land, but a declaration that the site was a “Public Mosque”. This would mean an essential decision as to whether the site can be called a “Public Mosque” at all. This means a conclusion will have to be drawn as to whether the said site could be called a public mosque in Islamic Law. Now there are certain facts which have to be adjudicated in Islamic Law for a place to be called a public mosque and one of them is whether the Muslims ever treated this place as a public mosque (this is a question of faith), another, whether Islamic Law allows construction of mosques on places of worship of others (which is an interpretation of Islamic religious conceptions and practices …again a question of faith) and third, what is the status of a supposed mosque which is presently a place of worship of another religion (again a question of Islamic conceptions, traditions and therefore …faith). It is worthwhile to remember that the Sunni Waqf Board suit was filed after 12 years of the installation of the idols of Sri Ram Lalla. The Court was necessarily asked to go into that question not by the Hindus but by the Sunni Waqf Board in it’s plaint. It is also important to bear in mind that though it is being bandied about today that the dispute was a “title” suit, but what is most important to note is that the Sunni Waqf Board had never ever sought declaration that the “title” of the land be declared in their favour but had asked it to be declared a “Public Mosque”, with all it’s consequent conditions, which could not be decided without going into the “faith” of Muslims. The same “faith” which is a secular dirty word today.
At least in the Suit No. 5 filed by Sri Ram Lalla Virajman and Asthan Sri Ramjanmabhoomi title to the land was sought for: “(a) A declaration that the entire premises of Sri Ram Janma Bhumi at Ayodhya as described and delineated in Annexures I, II and III belong to the plaintiff deities;
(b) A perpetual injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any obstruction in the construction of the new temple building at Sri Ram Janmabhumi Ayodhya”.
The above claim of the “deities” (who have the right to sue through their next friend under Hindu Law) was sought on the ground that Hindus have always treated the site as “sacred” and the birthplace of Sri Ram and held the place as Asthan Sri Ramjanmabhoomi, and therefore a deity in itself, on which Sri Ram Lalla presided (therefore Sri Ram Lalla “Virajman”) as an idol and being another deity. Both the deities were plaintiffs in the suit. It was also contended that there was an existing temple which was broken to construct a mosque and such was invalid since in Hindu Law once a deity (being the Asthan Sri Ramjanmabhoomi in the present case) always a deity and that in addition after the due consecration of the idol of Ram Lalla (the other deity) in accordance with Hindu rites, the rights of all parties if any stood extinguished as the right of the original deity stood revived.
Moreover in Hindu Law the deity can never die and according to the Supreme Court itself in Mahant Ram Swarup vs. SP Sahi, even if the idol is broken, or lost or stolen, the moment it is replaced by another idol and duly consecrated it takes the sanctity of the old. It is important again to clarify here that “deity” does not mean only an “idol”, which seems to be a broader misconception being held by the so-called “secular” brigade. An idol is not a precondition for a “deity” to exist in Hindu theology and jurisprudence, the deity can in the words of the Supreme Court in Ram Janki Deity v. State of Bihar be shapeless, formless like Agni or Vayu, or even a simple piece of wood. The Supreme Court in the same case said that as long as the public feel there is a “divine presence” any place can be considered a temple.
Necessarily in course of the proceedings it had to be proved that Hindus have always treated the site as “sacred” and as the birthplace of Sri Ram. The deities did not have to prove that Sri Ram was born there as the claims of the deities in the plaint was not that Sri Ram was born there and therefore it is sacred, but, that the deities’ devotees “believed” that Sri Ram was born there and it is “Ramjanmasthan” and therefore it is “sacred” to them and has always been treated as a deity.
The Allahabad High Court itself had previously held that the way to prove the existence of a deity which is claimed to have been existent from time immemorial is through the fact that the deity was recognised to be one and a representative of the divine form by the people who treated it as part of the divine. The Supreme Court in Balashankar Mahasankar Bhattjee and Others vs. Charity Commissioner, Gujarat had clearly held that Gazetteers being official records evidencing public affairs, the Courts may presume the contents of Gazetteers as genuine specially about existence of old temples. Needless to say that the Imperial Gazetteers in the present case had consistently held that the Hindus had always treated this place as sacred and continued to worship there even though a mosque existed on the site.
The fact of the sanctity of the site was also proved by voluminous contemporaneous documentary evidence of the above mentioned Imperial Gazetteers (which are also admitted as valid evidence under the Indian Evidence Act) and travelogues of foreign travellers and who were travelling in the area and who recorded Hindu worship in the site, even, after the Mosque was constructed and the ASI Report which showed that even previous to the supposed Mosque there was an existent Hindu temple. The documents disclosed also included documents of Muslim noblemen who recorded the destruction of the temple built on the birthplace of Sri Ram and the construction of the mosque thereon.
Interestingly this is the point where everyone is attempting to rely on to show that the decision was one based on “faith” and not on law, when such was clearly a question of evidence and for which evidence was led by both parties to show whether the Hindus did consider the site sacred. Historians appeared as expert witnesses from both sides to make the point. They were cross examined in detail. Documentary evidences were also produced and questions were put to the witnesses who were produced from both sides as experts on the point. Interestingly none of the great historians who hold forth in the matter today, people like Romilla Thappar or Irfan Habib ever made appearance to put forth their views before the Court. They should have deposed before the Allahabad High Court and allowed the parties to cross examine them as to their views and on what basis they held them, in case they were really interested in the matter. They chose not to do so understandably for the fear of being caught out under scrutiny.
The Court therefore considering the statements made in various plaints and written statements framed the following issues amongst various others on other points, which were to be decided finally by the Court:
(i) Issue No. 14:- Have the Hindus been worshipping place in dispute as Sri Ramjanmabhoomi or Janam Asthan and have been visiting it as a sacred place of pilgrimage as of right since times immemorial? If so, its effect?
(ii) Issue No. 19 (c):- Whether any portion of the property in suit was used as a place of worship by the Hindus immediately prior to the construction of the building in question? If the finding is in the affirmative, whether no Mosque could come into existence in view of the Islamic tenets, at the place in dispute?
Based on the said issue, evidence was led that (i) documents were disclosed by all plaintiffs and defendants to the suit, and (ii) witnesses were produced by all the parties and cross examined by other parties to the proceedings. After the evidence had been disclosed, then arguments were commenced by the parties by placing the law on the various issues and linking the law to the evidence and trying to prove that the statements made by them in their plaints (statements of claims) and written statements (statements of opposition ) were true, and, the statements made by the other parties were not true or could not be proved. This process nearly took 16 years after the directions of the Supreme Court in the Ismael Faruqui case and subsequent framing of issues by Allahabad High Court. The great commentators of today were conspicuous by their absence during all this time.
In the present judgement the Majority Opinion thereafter went on to answer the issues raised in the Sunni Waqf Board suit by a majority that the disputed structure is not a public mosque and the mosque was constructed on an old temple based on the ASI Report. The majority also held that prayers in the mosque had not been made from time immemorial and the disputed place is the “Ram Janmabhumi” and no valid mosque can come up in that place such being against Islamic law.
The majority thereafter addressing the questions raised in the suit filed by the two deities found that the deities are entitled to sue through their next friend. The majority also concluded that the Hindus believe that the disputed site is the birth place of Sri Ram being the Ramjanmasthan and the place is revered as a deity itself and therefore there can be no valid mosque built on the same.
Under the above circumstances it is apparent that the said conclusions directly arise out of the issues framed in the suit and are not a fanciful exploration of “faith” as is being attempted to be made out by the secular chorus.
What requires repetition is that the present case being a civil suit and not a “Government Commission of Enquiry” or a “People’s Tribunal” had to argued only based on the statements stated in the plaints (or statements of claim, filed by the various parties) and the written statements (or statements opposing the statements of claims, field by those opposing them in the various suits). It is a fundamental proposition of civil procedure that no party can go beyond the assertions in the plaints and written statements filed by the parties in court in the case and all evidence and arguments has to be restricted to proving the facts stated in the plaint and the written statements only. A plaint and a written statement is the basis of any case, and, they are of utmost importance, as facts stated in them cannot be changed later for better or for worse.
There has been strong criticism of the present judgement from various quarters, a lot of which is unfounded and superficial. It is important in our view that for the formulation of any criticism of the present judgement the principles of civil litigation be kept in mind, otherwise we would be in danger of fundamentally misunderstanding the principle foundation on which the present case was decided.
(The writers are Advocates, Supreme Court of India.)