The Ayodhya Reference (The Supreme Court Judgement and Commentaries)

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Cases of the Ramajanma Bhumi-Babri Masjid had been rotting in the courts for over forty years. The controversey had led to great tension. The structure had been demolished. The President referred the core question to the Supreme Court. In spite of the way the matter had been handled earlier, a great deal was expected of the Supreme Court. After deliberating over the matter for seven months, the Court eventually decided not to decide.

Several questions hit one at once. Evidence of various kinds, and of unanswerable authenticity showed that the question that the President had referred to the Supreme Court deserved but one answer: Yes, there was a temple at the site. Would the Court have returned the question unanswered had the evidence weighed as heavily on the other side - if it was as clear from it that there had been no temple at the site?

On the other side, the Court's judgement marked an important reaffirmation: in the eyes of law, the Supreme Court declared, a place of worship like a mosque is a piece of property and as such is subject to the normal civil laws which apply to any other piece of property. Would the Court have reaffirmed this fact as unambiguously if the structure had still been standing?

Was the Court's approach unduly legalistic? Did it reflect the colonial predispositions which the Indian elite has internalized? How could one square its observation that the Kar Sevaks who destroyed the building had no religion, that they were just criminals, that an entire community can-not be held responsible for what a few did, with its declaration that Hindu society must carry the cross of consequences on its chest as the ones who destroyed the structure "are suspected to be persons professing to practise the Hindu religion"? Had the Court missed an opportunity to help solve a national problem? Or had it been right in keeping itself away from a problem which was in any case not amenable to judicial determination?

Is it really the case that the question could only be settled by archaeologists etc., and that the judges, not being specialists in these fields, could not adjudge the evidence? Do they not routinely weigh evidence on matters on which they are not specialists - they are not surgeons, yet they decide whether a surgeon has been negligent; they are not experts in aviation, yet they affix responsibility for a crash; they are not irrigation engineers, yet they apportion river waters between states; they are not technologists, yet they determine what effects some change in the location or technology of a refinery shall have, on its economics, its throughput, on the environment. Similarly, courts - the Supreme Court in particular-routinely ask experts to assist them. Could the judges not have sought the assistance of experts this time round? In any case, was the evidence all that complicated? What sort of evidence would the Court have encountered had it examined the question?

The cases got nowhere after being knocked about the courts for 42 years. Will the decision to send them back to the same courts help solve the problem, or does it amount to planting a time- bomb for the future?

The immediate question of the temple aside, what general principles emerge from the Court's judgement? Do these take us a step towards true secularism? If so, will the courts, indeed the Supreme Court itself, have the courage to abide by them?

Leading thinkers - a former Chief Justice of a High Court, a senior advocate, an archaeologist, writers, and journalists - take up these and other questions, and thereby provide a weighty critique of the Supreme Court's judgement.

"It is very desirable that a suit of this kind is decided as soon as possible, and it is regretted that it remains undecided after four years. The delay appears to be principally due to the fact that the record of the proceedings in the trial court was summoned by this court in the year 1953 on the application of the present appellants. Had that not been done, the suit would probably by now have been decided.

"… We, however, consider it extremely desirable that the suit should be disposed of at once and we accordingly direct that the record of proceedings is to be sent back to the lower court."

That was the Allahabad High Court speaking in 1955 about the Ramajanma Bhumi cases which had by then been pending already for four years.

By 1989 the only contribution of the judicial process was that instead of two suits, there were five. All were taken over by the High Court. And a Special Bench of three judges was constituted to hear all of them together.

The mosque at Ramajanma Bhumi had been a Shia mosque. According to Sunni fundamentalists mosques of Shias are not mosques at all. Yet the Sunni Wakf Board waded into the matter. Excavations at the site were kept from being resumed on one pretext after the other: There are graves of Babur's soldiers in the vicinity, it was said, and Islam does not allow graves to be disturbed; apart from the fact that in Saudi Arabia the graves of even the companions of the Prophet have been uprooted and erased, the site has since been bulldozed and not a trace of any grave has surfaced; yet the pretext was enough to halt all excavations for 15 years. In the courts the cases were kept from proceeding by similar devices. And every prospect of the mutwalli and others agreeing to shift the mosque was scotched.

Even then the matter could have been settled by deciding at the threshold whether suits such as the ones instituted by the Sunni Wakf Board were admissible at all. Did the Statute of Limitations not apply in this instance? Had the suits been filed within the prescribed period? On 12 January 1990 the Supreme Court advised the Allahabad High Court to direct its attention to this point. It observed:

"If the defendants press the contention regarding maintainability grounded upon limitation to be raised as a preliminary issue, the High Court which is trying the case will do well to entertain the request."

The High Court flatly refused to heed the counsel of the Supreme Court, and by its order of 22 August, 1990, refused to decide any issue as a preliminary issue.

An appeal was filed against that order with the Supreme Court in September 1990, for if the suits were not maintainable at all, the matter would be over. Nothing was done. The appeal remained pending.

In October 1991 the UP Government took over the land under and around the structure. Writs were filed both in the High Court and Supreme Court against the acquisition.

On 15 November 1991 the Supreme Court transferred all the writs to the High Court. It said that the High Court was taking over the cases for final disposal in December 1991.

Even in July 1992 the hearings were still going on.

When the Kar Seva began in July 1992 the Supreme Court said that if the UP Government could stop the Kar Seva the Supreme Court would transfer the acquisition cases to itself and decide them all together. The Kar Seva was stopped. But the Supreme Court eventually decided not to take over the cases on the ground that the hearings before the High Court were far advanced. It stressed how-ever that the High Court should expedite the hearings and decide the case expeditiously.

Kar Seva was set for 6 December 1992. The High Court concluded its hearings on 4 November 1992. The UP Government and others repeatedly requested it to deliver its judgement, one way or the other. To no avail. Instead, one of the judges proceeded on leave.

The structure was demolished on 6 December 1992. The High Court delivered its judgement on 11 December 1992!

Even as proceedings in courts remained stalled-by the usual devices, and by the predilections of the courts themselves - efforts were on to find a solution by other means. As Muslim leaders had said that if it could be shown that a temple had existed at the site before the mosque was built, they would themselves advise Muslims to hand over the site to the Hindus, Mr. Chandra Shekhar's Government identified this as the "core question" to be settled: Was there a Hindu structure at the site before the mosque was built? Representatives of the two sides garnered evidence and submitted it to Government. In doing so the Babri Masjid Action Committee was assisted and guided by a number of leftist historians. When it became evident that the evidence was all going the other way, they stopped sending the notes they had agreed to provide, they did not turn up for the meetings which the Government had scheduled in consultation with them.

The Government of Mr. Narasimha Rao proceeded to delay, prevaricate, dodge the issue, take it up, attempt deals, float formulae, collect evidence, say one thing to one side and something else to the other...

The structure was demolished, a make-shift temple stood in its place.

One of the things the Government did subsequently was to revert to the "core question" which had been identified by the previous Government. Under Article 143 (1) of the Constitution the Government requested the Supreme Court to assess

"Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood."

In spite of the way cases had dragged on in the courts for 42 years, in spite of the way the Supreme Court itself had proceeded in the matter, much was expected of the Supreme Court. After all, both sides had agreed earlier that this was the "core question". After all, no one could doubt that a pronouncement by the Supreme Court on the facts would have a decisive influence on public opinion, and thereby on the organizations which were directly involved in the dispute.

Barring holidays and the summer vacation, five judges of the Supreme Court heard the case three days every week from February to September, 1994. And, alas! in the end they decided not to answer the Reference at all.

Several questions hit one at once. Evidence of various kinds, and of unanswerable authenticity showed that the question that the President had referred to the Supreme Court deserved but one answer: Yes, there was a temple at the site. Would the Court have returned the question unanswered had the evidence weighed as heavily on the other side - if it was as clear from it that there had been no temple at the site?

On the other side, the Court's judgement marked an important reaffirmation: in the eyes of law, the Supreme Court declared, a place of worship like a mosque is a piece of property and as such is subject to the normal civil laws which apply to any other piece of property. Would the Court have reaffirmed this fact as unambiguously if the structure had still been standing?

Was the Court's approach unduly legalistic? Did it reflect the colonial predispositions which the Indian elite has internalized? How could one square its observation that the Kar Sevaks who destroyed the building had no religion, that they were just criminals, that an entire community cannot be held responsible for what a few did, with its declaration that Hindu society must carry the cross of consequences on its chest as the ones who destroyed the structure "are suspected to be persons professing to practise the Hindu religion"? Had the Court missed an opportunity to help solve a national problem? Or had it been right in keeping itself away from a problem which was in any case not amenable to judicial determination?

Is it really the case that the question could only be settled by archaeologists etc., and that the judges, not being specialists in these fields, could not adjudge the evidence? Do they not routinely weigh evidence on matters on which they are not specialists - they are not surgeons, yet they decide whether a surgeon has been negligent; they are not experts in aviation, yet they affix responsibility for a crash; they are not irrigation engineers, yet they apportion river waters between states; they are not technologists, yet they determine what effects some change in the location or technology of a refinery shall have, on its economics, its throughput, on the environment. Similarly, courts - the Supreme Court in particular - routinely ask experts to assist them. Could the judges not have sought the assistance of experts this time round? In any case, was the evidence all that complicated? What sort of evidence would the Court have encountered had it examined the question?

The cases got nowhere after being knocked about the courts for 42 years. Will the decision to send them back to the same courts help solve the problem, or does it amount to planting a time-bomb for the future?

The immediate question of the temple aside, what general principles emerge from the Court's judgement? Do these take us a step towards true secularism? If so, will the courts, indeed the Supreme Court itself, have the courage to abide by them?

The commentaries in this volume take up these and other questions. As the reader will see, the contributors differ in their answers to specific questions. What they share is a concern for the state of our country, and a feeling that in this instance at least the Court could have done more to alleviate that condition.