“Should have objected in High Court”

The Muslim parties in the Ayodhya dispute argued on Wednesday that the Archaeological Study of India (ASI) report on the excavations at the Babri Masjid site in 2003 is filled with “palpable and inherent” infirmities and inconsistencies.

But the Constitution Bench led by Chief Justice of India Ranjan Gogoi said it was too late in the day to object to the ASI report. The Bench wondered why the Muslims had chosen to question the report now in the Supreme Court and not earlier in the Allahabad High Court, which had commissioned the excavations. It said the Muslims cannot object in the Supreme Court to what they did not object before the Allahabad High Court.

The High Court had ordered the ASI excavation of the disputed area in a judicial direction. The archaeologists reported traces of a large structure which pre-existed the Babri Masjid. The Hindus claim that the findings gives credence to their claim that there was a Ram Mandir in that place.

Senior advocate Meenakshi Arora said the ASI report was “weak evidence” and can be only considered an opinion at best. The lawyer argued that the summary of the ASI report was neither signed nor attributed to any of the archaeologists who were members of the project. She argued that each chapter in the report was inconsistent with the next chapter.

Ms. Arora, for the Sunni Wakf Board, submitted that the Muslim parties had indeed objected to the report in the High Court, but the court had merely said their protests would be dealt with later. “This was, however, not done,” she submitted.

“On plain reading of the ASI report, on the face of it, it is a part of record of the case, unless the court itself is dissatisfied with the report or the parties find it incongruous. If you have not objected in trial stage, none of your protests can be considered now in appeal,” Chief Justice Gogoi told Ms. Arora.

The judges on the Bench, one after the other, expressed scepticism about her argument. The Bench said the ASI report was a Court Commissioner’s report. It had mandatorily become a part of the record of the Ayodhya case. The report could have been only questioned under Order 26 Rule 10 of the Code of Civil Procedure, that too only if the court found it not satisfactory or if any of the parties wanted to examine the ASI members.

“You are asking us to sit in judgment of something that happened in the trial stage? You should have confronted the Commissioner [ASI] and put all these questions about the infirmity of the report. You cannot come in appeal and say the report is infirm,” said Chief Justice Gogoi.

“ASI report is completely dark on who analysed the data and there is no sign of any discussion notes,” Ms. Arora said. “Without these notes and record of meetings, the report and its conclusions lose relevance.”

The ASI report was a Commissioner report to the High Court, Justice D.Y. Chandrachud said. “If you had objections to the summary in the report, you should have raised the questions then. Why did you not? Order 26 Rule 10 of CPC uses the term ‘shall’. It means the ASI report shall be evidence in court. If you want to discredit it, you should have raised your objections and sought permission to examine the Commissioner.”

Justice S.A. Bobde said the objection raised is not that someone interpolated the summary, but only that the authorship of summary of the ASI report was not given. However, the court later conveyed to Ms. Arora, after checking with the Registry, that the ASI report was handed over to the High Court with an application which was duly signed.

Ms. Arora said the entire Hindu claim was based on hearsay from gazetteers and travelogues. “ASI has also not brought any proof of the demolition of a temple to build a mosque,” she argued.

Ms. Arora said the ASI report cannot be banked upon by the court to prove there was a temple. “Archaeology is not an exact science. Archaeology is based on presumptions, assumptions, hypothesis, inferences and does not present a verifiable conclusion,” she submitted.

“If you are going to argue on Archaeology being an inexact science unlike Astrophysics, then we can hear you separately on that..." Justice Bobde intervened.