india

Updated: Jul 20, 2020 21:38 IST

The Supreme Court order giving Hindus the possession of the disputed site in Ayodhya rested on the following key understanding that the judges drew from the suits and the evidence that was presented before them.

POSSESSION NOT ESTABLISHED

One of the key basis for claims by the Muslim side was establishing possession, which can determine proprietorship of land according to Indian law in two ways: by establishing either adverse possession or exclusive possession. Adverse possession is a principle that gives proprietorship of a property to an entity that had its exclusive control for more than 20 years.

Muslim petitioners claimed that they had possession of the mosque since 1528 and continued to do so till 1949 – when idols of the Hindu god Ram were placed in the mosque illegally. Consequently, “Muslims are in possession of that property… by way of an adverse possession,” the petitioners contended.

The court rejected the claim and said there was evidence to show Hindus had unimpeded access to the parts of disputed site – thereby disqualifying the possession to be exclusive. “Hindu worship at Ramchabutra, Sita Rasoi and at other religious places including the setting up of a Bhandar clearly indicated their open, exclusive and unimpeded possession of the outer courtyard. The Muslims have not been in possession of the outer courtyard. Despite the construction of the wall in 1858 by the British and the setting up of the Ramchabutra in close-proximity of the inner dome, Hindus continued to assert their right to pray inside the three-domed structure,” the order said.

In connection with the inner court yard, there was no evidence in the suit by Sunni Board to show exclusive possession prior to 1857, the court noted.

DIVISION IMMATERIAL

The bench suggested no distinction should be made between the inner and outer courtyards to establish possession and the disputed site should be seen as a whole. The division of the site into inner and outer courtyards in 1856-57 “did not either bring about a sub-division of the land or any determination of title,” the order noted.

Concluding that the exclusion of Hindus from the inner courtyard was a matter of contention, the bench noted Hindus offered prayers to the ‘Garbh Grih’ (in the inner courtyard) with the belief that the birth-place of the god Ram was under the central dome of the mosque.

The court also said that there was evidence, “on a preponderance of probabilities” to establish that Hindus offered prayers at the inner courtyard prior to the annexation of Oudh by the British in 1857.

The separation of the courtyard goes back to the 19th century. In 1856-57, riots broke out between Hindus and Muslims in the vicinity of the structure. The then British administration attempted to raise a buffer between the two communities by setting up a grill-brick wall.

It divided the premises into two parts: the inner courtyard, which would be used by the Muslim community, and the outer courtyard, which would be used by the Hindu community.

The outer courtyard had several structures of religious significance for the Hindus, such as the “Sita Rasoi” and a platform called the “Ramchabutra”.

NOT ABOUT FAITH ALONE

In sharp contrast to the 2010 Allahabad high court verdict on Ram Janmabhoomi-Babri Masjid title suit, which relied heavily on faith and belief, the five-judge bench of the Supreme Court said “the court does not decide title on the basis of faith or belief alone but on the basis of evidence.”

“This court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper,” the order read.

The bench kept clear of faith and belief arguments made by the Hindu and Muslim sides and said, “whether a belief is justified lies beyond ken of judicial inquiry. Faith is a matter for the individual believer”.

Hindu parties during the course of arguments in the Supreme Court had produced historical evidence and cited various customs such as ‘parikrama’ to show that devotees had “faith and belief” in the fact that disputed site was the birth place of the Hindu god Ram.

But the court kept off from adjudicating on the issue on the basis of faith and belief and held that “Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before the law. All forms of belief, worship and prayer are equal. Those whose duty it is to interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation. “

Inferences drawn by historians in regard to the faith and belief of Hindus in the birth-place of Ram constitute their opinion and the court cannot rest a finding of fact on the report of the historians and must evaluate the entirety of the evidence presented in the suits, the judges said.

ASI REPORT INCOnCLUSIVE

The Archaeological Survey of India’s (ASI) excavation report on the disputed site in Ayodhya failed to arrive conclusively on whether a Hindu temple was demolished to construct a mosque at the spot, and was of little help to the judges who on Saturday gave the Hindu parties the possession of the disputed site.

Lawyers representing the Hindus had relied heavily upon the ASI report to assert their right over the 2.77 acre land and argued that a temple was pulled down to construct the mosque. Muslims questioned the accuracy of the report, which spoke of the presence of a 12th-century-old Hindu Temple beneath the disputed site. The Muslim side contended structures that came to be revealed during the course of the excavation were of an ‘Idgah’ or ‘Kanati Masjid.”

The ASI submitted its report on August 22, 2003 after carrying out excavations on the orders of Allahabad High Court.

The five-judge Supreme Court bench, however, found no evidentiary value in the ASI report. “A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI... Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial,” the court said. Sunni Waqf Board’s Idgah defence was dismissed by the court as an afterthought.

The ASI report, the bench said, had not specifically opined whether a temple was demolished for the construction of the disputed structure (mosque). What emerged from the report was that a non-Islamic structure is believed to have existed, the order noted.

HC ORDER DEFIED LOGIC

The Supreme Court said the 2010 Allahabad high court verdict, which trifurcated the disputed site at Ayodhya, “defies logic and is contrary to settled principles of law” as it struck it down. The judges said the “high court was not seized of a suit for partition”, so it could not divide the land among the contesting parties.

The top court held that “the high court was called upon to decide the question of title, particularly in the suits, by the Sunni Wakf board and Ram Lalla Virajman. But it adopted a path which was not open to it.”

On September 30, 2010, a three judge bench of the Allahabad High Court comprising Justice SU Khan, Justice Sudhir Agarwal and Justice DV Sharma delivered a judgment holding all the three sets of parties – Muslims, Hindus and Nirmohi Akhara — as joint holders of the disputed premises and allotted a one third share to each of them.