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The Ayodhya Judgment: What Next?

Nivedita Menon

Since the Allahabad High Court judgment was delivered on 30 September 2010, historians, political commentators, legal scholars and lawyers have all produced serious and engaged critiques of the judgment pointing out flaws in reasoning and law. Based on this substantial body of reflection, this paper develops a composite picture of the problems with the judgment.

n May 2011, while issuing a stay on the Allahabad High Court verdict on Ayodhya that had divided the disputed territory between the three parties, Justice R M Lodha of the Supreme Court Bench declared the high court verdict to be strange. He said: The decree of partition was not sought by the parties How can a decree for partition be passed when none of the parties had prayed for it?1 The matter will now be heard in the Supreme Court in due course. What are some of the key issues that we can hope the Court will keep in mind? What are the weakest links in the high court judgment? Since the Allahabad High Court judgment was delivered on 30 September 2010, a substantial body of reflection upon it has emerged. Historians, political commentators, legal scholars and lawyers have all produced serious and engaged critiques of the judgment, pointing out flaws in reasoning and flaws in law. In an engagement with the debate so far, particularly with the critical voices, of which I am one, I hope here to develop a composite pic ture of the problems with the judgment. I will start with the barely disguised partiality in the judgment towards a particular political project that claims to represent all Hindus; a partiality that has been generally glossed as the recog nition of faith. Both critics and supporters of the judgment seem to be agreed that faith has been given recognition by this judgment. It is with this question, therefore, that I begin.2

1 Faith over Facts?

Does the Ayodhya judgment of the Allahabad High Court privilege faith over facts? The Bharatiya Janata Partys (BJP) position on this is interestingly ambiguous. On the one hand, the BJPs chief spokesperson Ravi Shankar Prasad refuted the claim of the Communist Party of India (Marxist) CPI(M) that the judgment was based on faith and belief, and told reporters that the court decided the case on the basis of testimony and settled principles of law;3 while on the other, L K Advani celebrated the judgment explicitly as faith upheld by law.4 This apparent contradiction, however, was precisely at the heart of the Hindu Rights strategy in court, as outlined in an article in Tehelka (30 October 2010) jointly written by Bhupender Yadav, national secretary of BJP and Vikramjit Banerjee, both Supreme Court lawyers, who are identified as having represented Ram Lalla and other Hindu parties in the case. In this article, they deny that the judgment was a fanciful exploration of faith, and argue that it stayed closely with the legal issues raised in the civil suit, arriving at conclusions based entirely on evidence presented in court (Yadav and Banerjee 2010: 17). Nevertheless, they then go

This paper grew out of the Rajendra Vohra Memorial Lecture delivered at the University of Pune in February 2011. Thanks to Suhas Palshikar for giving me the opportunity to benefit from discussions there. In earlier incarnations, this was a post on kafila.org (The Second Demolition) and a short presentation in a panel discussion The Ayodhya Verdict: Fact vs Faith organised by a student group, Anveshan, in October 2010. Thanks also to Rohit De and Tarunabh Khaitan for helping me think through a previous draft. Nivedita Menon (niveditamenon2001@yahoo.co.uk) teaches at Jawaharlal Nehru University, New Delhi.
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on to state that religious belief was one of the key elements in the case, and in dealing with it, the judgment follows the nuanced view created by British courts in India, that courts will not test the rationality of a belief system, but only whether that belief is actually held by the followers of the religion. Thus, The courts decided to go by the belief system from which the disputes arose, that is, from Hindu belief in cases of Hindu jurisprudence and Islamic belief in cases of Islamic jurisprudence (ibid: 17). It is this test of validly held belief, claim Yadav and Banerjee, that the Ayodhya judgment applies:
Everybody accepts that that Lord Ram is integral to Hinduism and that he was born in Ayodhya. The Muslim parties in the case have only disputed whether he was born at that specific site. To answer this, the Hindu parties had to prove with evidence that Hindus have histori cally believed that the disputed site is Ram Janmabhoomi. Which they did (ibid: 17).

Yadav and Banerjee thus assert the judgment did not go into questions of faith implying this would be a subjective exercise but only considered whether the faith was actually held or not, something they imply can be objectively proved. In this context they make the following arguments: (a) The Sunni Waqf Board (SWB) does not seek the land title but the declaration of the property as a public mosque and the hand ing over of the property after removal of the idol to it. (b) To determine whether it was a public mosque, the court had to go into matters of Islamic faith whether or not it can be treated as a mosque under Islamic law. (The three judges had three different positions on this, but more on this point later.) (c) Ram Janmabhoomi Nyas (RJN) and Nirmohi Akhara (NA) have sought title to the land, unlike the SWB, under the Hindu law. The title claim is based on Hindus always regarding the site as sacred. It does not have to be proved that Ram was born there, they only have to prove that the devotees have believed this the sacredness and deitiness of the place comes from this belief. Yadav and Banerjee cite case history in the Hindu law to support this claim. Thus, Yadav and Banerjee reveal their strategy in court to have been, to show that the Muslim belief (that the demolished struc ture was a mosque) fails the tests set by Islamic jurisprudence, while the Hindu belief (that Ram was born there) passes the test set by Hindu jurisprudence. It is striking that it is assumed both by Justice Sharma and by Yadav and Banerjee that Islamic faith can be interpreted objectively by an outsider to the faith that is, the question of whether it was a mosque can be determined by an objective outsider through a study of Islamic tenets. But when it comes to Hindu beliefs, they can only be tested to see if they are held or not held by believers. To be consistent, if the SWB claims that the Babri masjid was a mosque, the court should have fo cused on the question of whether it is a validly held belief. The fact that Muslims offered prayers there until stopped by court or der in 1949 should establish this fact without a doubt. Even the Hindu parties claim regarding this point concedes that Mus lims worshipped at the mosque till 1934, when it was substan tially damaged in a riot. But rather than considering the question of whether the Babri masjid was a mosque in terms of validly held

belief, Justice Sharma asks another kind of question, precisely the one (coincidentally?) posed by the RJN. That is, whether the dis puted structure was, in fact, a mosque as laid down by rules of the Islamic faith. Justice Sharma then accepted the arguments made by the Hindu parties5 that the construction and dedication of the mosque did not follow the tenets of the Quran it did not have minarets, was surrounded by graveyards, there was no place for vuzoo, there were idols present there and so on.6 On this point, Justice Khan held that none of these features are essential for a mosque,7 and Justice Agarwal was consistent in holding that whether it was a mosque or not must be determined not by the tenets of the Shariyat, but by the beliefs of people who worshipped at it.8 Despite these differences of opinion among the three judges, and the fact that the majority opinion in fact holds that the demolished structure was a mosque, Yadav and Banerjee ignore that point and deftly displace the critical question to Hindu law the title claim of Hindus being based on Hindus always regard ing the site as sacred, and on the claim that in Hindu law, once a deity is always a deity. This displacement is carried out by Justices Sharma and Agarwal too. The question that arises then is this: if Hindu belief is to be tested in cases of Hindu jurisprudence and Islamic belief in cases of Islamic jurisprudence, what is to be done in a case such as this particular dispute, in which two sets of beliefs come into conflict? Which belief or school of jurisprudence has greater value? In this judgment, Sharma and Agarwal trump Muslim law (as they in terpret it) with the Hindu law. What is the justification given for this? The simple answer is none.

2 Flawed Legal Reasoning and the Question of History

The case basically involved five title suits claiming the disputed land, and 28 issues framed by the court. Here I will outline the legal flaws in the very framing of these issues: (a) The Absent Presence of the Babri Masjid: This is the most significant point at the heart of this judgment the demolished Babri masjid. What is the view of the judgment on that act of destruction? Two of the issues were in fact explicitly framed in this way: whether after demolition of the disputed structure as claimed by the plaintiff, it can still be called a mosque and if not whether the claim of the plaintiffs is liable to be dismissed as no longer main tainable? (Suit No 4, Issue 25) and whether Muslims can use the open site as mosque to offer prayer when structure which stood thereon has been demolished? (Suit No 4, Issue 26). It has often been said that the demolition has not been justified by the judgment. This is incorrect. It is true that Justice Khan merely notes the facts of the demolition, and Justice Agarwal condemns it. However, Justice Sharma states very clearly what, in fact, the decision of the judgment assumes: The disputed structure has already been demolished. Accordingly the place cannot be called as a mosque and Muslims cannot use the open place as a mosque to offer prayers.9 As many commentators have pointed out, does not the division of the property through the judgment assume the demolition, for
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the RJN has been given the land on which the Babri masjid once stood. If the mosque had not been demolished, is not this judg ment, in fact, an order for its demolition? (b) The Legitimacy of Invoking History: Anand Teltumbde has drawn attention to the issues that were framed in such a way that they revolved around history whether Ram was born at the spot or whether the mosque was built at the site of a demol ished temple. Teltumbde points out that many of these issues of history had already been settled in law by a fivejudge bench of the Supreme Court in 1994, while responding to the presidential reference sent to it after the demolition of the Babri masjid (Dr M Ismail Farooqi vs Union of India, 1994 (6) S C C 360). The refer ence was to the following effect:
Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi and Babari masjid (in cluding the premises of the inner and outer courtyards on such struc ture) in the area on which the structure stands or not?

Justice Khan too cited this judgment, Para8, as follows: As far as a title suit of civil nature is concerned, there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions.10 After all, as Farasat puts it, even after filling thousands of pages, the fundamental question remains unanswered. Who owns that piece of land? (Farasat 2010). (c) The Complex Nature of Historical Sensibility: Janaki Nair and Radhika Singha have drawn an attention to the gradual amplification of the claim to the site.11 From the 1885 suit by Mahant Raghubar Das demanding that he be allowed to build a temple over the Ram Chabutra, to the expansion of the claim over the century, as a suit involving the right to the entire site by a pur ported representative of the Hindu public in general by 1989. (This representative of the Hindu public is the Next Friend of Ram Lalla, and is an important party in the current litigation. We will return to the question of the Next Friend later in this paper.) Incidentally, the 1885 judgment, both trial and appellate, declared the mosque to be in adverse possession. In 1885, Mahant Raghubar Das acknowledged the Babri masjid as a mosque, and claimed the Ram Chabutra as the birthplace of Ram (chabutra janam asthan), not the space under the dome of the masjid. Nair and Singha too, point to the gradual narrowing down over the years, of the space under dispute to the exact spot under central dome of the Babri masjid. The more general argument Nair and Singha make is about the methods of the historian and the judge. These are alike up to a certain point, but they sharply diverge thereafter.
The historian need not bear the burden of misjudging a just cause, nor does she reach the kind of closure that is imperative for judges, with far reaching implications for future legal action. What has been called into question in this judgment are not merely the evidentiary proto cols of the historian, but the space they can legitimately occupy in a field which pits history against faith.12

The Supreme Court refused to answer the reference, ruling that that such a question was incapable of legal determination and was outside the purview of courts (Teltumbde 2010: 12). That left only the title suits, which in the absence of documen tary proof on all sides, could have been resolved by established law that grants the property to the one who has had uninter rupted possession of it for 12 years or more. Says Teltumbde, there are only two parties that can make this claim, since it is undisputed that namaz had been offered at the Babri masjid from 1528 till 1949, and that the Nirmohi Akhara had conducted religious ceremonies from the 19th century. The act that placed idols under the dome was an act of criminal trespass, and so the claim by Ram Lallas Next Friend should have had no legal status (ibid: 12). As Warisha Farasat puts it, if you dont ask the right questions, you will not get right answers. She points out that the issues were framed in a manner that rendered them insusceptible to legal resolution. For instance, Have the Muslims been in possession of the property in suit from 1528 AD continuously, openly and to the knowledge of the defendants and Hindus in general? If so, its effect? (Suit No 4, Issue 15). And Whether the disputed structure claimed to be Babri masjid was always used by the Muslims only regularly for offering namaz ever since its alleged construction in 1528 AD to 22 December 1949 as alleged by the defendants 4 and 5? (Suit 5, Issue 15). Is it possible, asks Farasat, for any court to determine continuous possession of any immovable property by a party for almost 500 years? In framing the issue, thus, the court set too high a threshold to prove possession and title. Can one go back so far into history to prove title? Farasat cites the Supreme Court decision in Karnataka Board of Wakf vs Government of India & Others (2004) 10 SCC 779, in which it was held that the title of the government over the property could only be ascertained by the courts for the last one hundred years and not beyond (Farasat 2010). (It is not an insignificant detail that in that particular case, reliance on history would have given Muslims control over three mosques.)
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In other words, I understand the question they pose as the fol lowing: whether the historical method can be used to apply clo sure in a field predefined as faith. That is, can the faith of a community be proved by historical evidence? If it is faith, then historical evidence is irrelevant; if history, then there are mul tiple narratives and interpretations of the same body of evidence. Nair and Singha refer to the site as located in the ebb and flow of time and as linked to multiple memories, and in terms of construction, abandonment and reconstruction within a large site. They point out that there are different kinds of complex claims made over a period of time: claims of residence, of occupation and of worship.13 Justice Khan, they say, takes this view of history, but the other two judges treat historical evidence of different sorts as capable of offering proof that can substantiate faith.

3 Unravelling the Three Voices in the Judgment

It is well known that the judgment is not one but three. The ques tion, however, is, what are the fault lines of the disagreements between them? An obvious one is that between Justice Sharma on the one hand, with his dissenting decision awarding the entire

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property to one party, the Ram Janmabhoomi Nyas; and Justices Khan and Agarwal on the other, who divide it equally between RJN, the SWB and the NA. Other commentators have noted the similarities between Sharma and Agarwal on their reading of his tory14 and on the question of faith (Gupta 2010). But it seems to me that the real division is visible if one considers the reasoning in the judgments rather than the decision, and in this case, the judg ments of Agarwal and Sharma are on the one side and that of Khan on the other. Many commentators have, in fact, read Justice Khans judgment separately, but I suggest that we need to go fur ther taking it seriously should make us see the whole judgment in a different light. In this section, I will look at the judgments of Sharma and Agarwal, and return to Khans judgment in conclusion. On a careful reading, it seems quite clear that the reasoning in all three judgments is an exercise in justifying in retrospect a pre ferred conclusion, decided upon in advance for extralegal reasons. The legal and historical reasons are clearly adduced after the conclusion has been reached a chronicle of a judgment foretold? Let us begin with Justices Sharma and Agarwal. What we find is that there is no consistency regarding which principle should hold in adjudicating competing claims. That is, at least six princi ples have been variously invoked by them history, archaeological proof, possession, adverse possession, legal title to the property and finally, faith. These are invoked often in successive sen tences, and it appears that when one argument seems a little weak, other, quite contradictory ones are added on, just to be on the safe side. Thus, with regard to title to land, possession and adverse possession in the Muslim case: (a) Regarding title, Sharma said the SWB could not show that Babur had a title to the land, nor any registered lease deed about the disputed land. So the SWB has no legal documentation to prove its ownership.15 (b) Regarding possession, Agarwal said that while Muslims lost possession of the outer courtyard from 185657 onwards, the inner courtyard was used by both Hindus and Muslims, since the former prayed there as well. So, while Muslims do not have ex clusive rights of possession of the inner space, Hindus do have exclusive rights of possession to the outer courtyard.16 This point about Hindus worshipping in the outer courtyard is read by Jus tice Khan very differently, as a very very unique and absolutely unprecedented situation,17 implying, it seemed to me, the hope ful possibilities of people of different faiths living together, rather than merely as indicating possession or lack of it. We will return to Khans reading later. (c) Regarding adverse possession by Muslim parties, Sharma de fined it as follows: it involves the dispossession of the owner, gaining of legal possession by the dispossessor, and negligence on the part of the owner to seek a remedial action within a pre scribed time (that is, the statue of limitations applies here). He then made the following arguments rejecting this claim: (1) Muslim parties cannot show dispossession of the true owner as they have not mentioned the real owner, nor shown when the true owner was dispossessed (see (a) above). (2) They do not claim the property through title but through possession.

(3) However, the defendants (the Hindus) claim the property was never in an exclusive use by the Muslims. (4) A deity cannot be dispossessed or remain in possession of the plaintiffs, as the deity is a perpetual minor against whom no claim of adverse possession can be brought. (5) The property, in fact, belongs to Dashrath, who was the sover eign king of all Ayodhya, and after him it passed to a charitable trust and a temple was built. This temple was destroyed without formal sanction under the law by way of possession by dispos sessing (sic). Thus concludes Sharma, the Muslim parties have failed to prove adverse possession.18 We can see in this demolition of all Muslim claims to legal title, to exclusive possession and use, and to adverse possession that strict legal norms of usage and formal title have been invoked. This is not the case for Hindu claims. While the lack of Baburs title deed is crucial, Dashraths ownership of Ayodhya is not thus limited. Baburs assumed demolition of a temple is characterised as without formal sanction, while the placing of idols inside the mosque in 1949 and the demolition of the mosque in 1992 are treated differently, and in fact, used to establish adverse possession for the Hindu parties. When it comes to the Hindu claims, they can prove adverse possession, says Sharma, because since 1934, Hindus claim, Mus lims were not allowed to enter the mosque. It has thus been ad versely possessed and has lost its character as a mosque. Thus, Sharma rests his claim on adverse possession that was ensured by the 1934 violence on the mosque by a Hindu mob, the surreptitious placing of idols in 1949 and the subsequent court judgment the same year banning namaz, but permitting puja. He, thus, appears to be basing his decision on legal principles of adverse possession and title to land. However, simultaneously he invokes the core belief of Hindus when he holds that the place being Ram Janmabhoomi makes the site itself a deity and its reli gious significance means that the state cannot acquire it under eminent domain. According to Justice Sharma: Lord Ram as the avatar of Vishnu having been born at Ayodhya at the Janmasthan is admittedly the core part of Hindu belief and faith which is in existence and practised for the last thousands of years19 Further, a sovereign government even by exercising the power of eminent domain cannot exercise the power of acquisition of land or property which extinguishes the core of the faith or the place or the insti tution held to be sacred.20 This specific reference to the untenability of eminent domain is significant, because immediately after the demolition of the Babri masjid in 1992, the Narasimha Rao government acquired large plots of land around the disputed structure through The Acquisition of Certain Area at Ayodhya Ordinance, 1993. The land in the possession of the centre practically encircles the disputed plot and all parties to the dispute are aware that some sort of central government intervention would be needed to redevelop the disputed land whether as a mosque, a temple or in any other way (Vyas 2010). Justice Sharma appears to be trying to ensure undisputed control over the property for the RJN.
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Justice Agarwal too invokes belief on the question of whether the disputed site belongs to RJB it does because Hindus have always believed it. But along with this, he cites the legal principle that the deity is a perpetual minor and no limitation can run against it for purposes of adverse possession.21 That is, Baburs assumed demolition of a preexisting temple does not establish adverse possession for Muslims, because the deity being a perpetual minor is protected from any limitation challenging this after any length of time. Thus we see that the Justices Sharma and Agarwal use the legal principle derived from the deity being a perpetual minor to buttress the validly held faith of Hindus. The faith of Muslims, on the other hand, is judged by an outsiders reading of Islamic scripture, and ends up failing both the test of faith and legal principles as interpreted by the judges. The reasoning behind these two judgments is that the Hindu claims are justified. Sharma hands over the entire property to them, but Agarwals reasoning too, in dividing the property, is essentially derecognising the SWBs claim, and accepting adverse possession for Hindus following the communal violence of 1934, the placing of idols in 1949, and the subsequent court order ending namaz and permitting puja. It has been pointed out by Anil Nauriya, regarding the Section 110 of the Evidence Act (which the judgment cites to say that since no party has the title deed, the property will be shared among the claimants), that according to this section, it is the challenger who must prove his claim, not the one in possession. Since it is the Hindu side that has encroached/trespassed (in placing the idols and in demolishing the Babri masjid), it is they who should prove their claim. If they are unable to do this, the Waqf Board remains the owner.22

Certainly Christ does not sue, nor can be sued; Hindu gods, it would seem, he adds cheekily, are altogether a more litigious lot (Patel 2010: 50). The second critical question here was flagged by Rohit De.23 Even if it is accepted that Ram Lalla is a perpetual minor, and therefore, needs to be represented by his Next Friend, or by a natural person, one can raise the question who should be this person? How is s/he to be appointed? The Next Friend (in the case of a minor) or shebait (i e, manager, in the case of an idol) has legal standing, but this status must be established in court. Sometimes there are competing claims, which the court must decide between. A relevant recent judgment is that of the Supreme Court in the case of Aruna Shanbaug, who is in a permanent vegetative state following a sexual attack 37 years ago. She is being looked after at the hospital where she was a nurse, so devotedly that in all these years she has not had a single bed sore. A writer, Pinky Virani moved court as the Next Friend of Shanbaug, seeking permission to withdraw life support, while this move was opposed by the staff of the hospital. The court ruled (in March 2011):
It is the KEM Hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision.24

4 Appropriation of Next Friend Status

The key figure in the judgments of Sharma and Agarwal is the deity who is a perpetual minor and must be represented by its Next Friend. However, this section will explore two questions that arise from this assumption: (a) there are legal doubts about whether an idol is, indeed, the same as a minor in Indian law; (b) the recent Supreme Court judgment on the Aruna Shanbaug euthanasia petition clarifies the legal position on the status of Next Friend, which has consequences for the Ayodhya dispute. Gautam Patel has drawn our attention to the differences in legal status of a minor and an idol, which have been conflated in the judgment. He claims that while there are points of similarity between the two,
An idol is inherently an act of judicial artifice, but a minor is a natural personMost importantly, under the substantive law of contract, a minor cannot contract; an idol may. Adjectival law (limitation) ex empts a minor from the bar of time. This protection is not extended to Hindu idols (Patel 2010:49).

Thus, it is legally contestable whether the deity Ram Lalla is indeed a perpetual minor protected from the statute of limita tions as Sharma and Agarwal claim, enabling a suit to be brought 400 years after the fact. Moreover, argues Patel, the parallel that Sharma and Agarwal draw with the church is untenable, as the histories of the two religious institutions are very different. The church holds property in its own name, not in the name of Christ.
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Since the KEM staff desired to keep Shanbaug alive, the court declined Viranis plea. That is, the court assessed the claims of two parties to be the Next Friend in this case, and chose one over the other. Why this judgment is relevant here is that it illustrates that the Next Friend status has to be established, and can be con tested in court.25 But how was the critical figure of Next Friend appointed in the Ayodhya case? How, as Rohit De puts it, was Ram Lalla kid napped and Next Friend status appropriated? In 1989, Deoki Nandan Agarwal, after retiring as an Allahabad High Court judge, and having collected data, including revenue records, to prove that the land belonged to Ram Lalla (as he claimed), filed a writ petition at Allahabad High Courts Lucknow bench seeking his own appointment as Ram Lallas sakha (friend). As Ram sakha, Agarwal then filed civil Suit No 5 on behalf of the deity at Ram Janmabhoomi with Ram Lalla as Plaintiff No 1; the site itself, Asthan Janmabhoomi as Plaintiff No 2; and himself as Plaintiff No 3. Agarwal acted as Ram Lallas Next Friend throughout his life. After his death in 2002, T P Verma, a retired history professor at Banaras Hindu University (BHU), got himself appointed the next sakha. In 2008, Verma applied for retirement in court, citing illhealth and age. Triloki Nath Pandey then took charge as Ram sakha in early 2010. Pandeys association with Ram Lalla began in 1974 when he became an RSS pracharak. The link between the Vishwa Hindu Parishad (VHP) and these individuals who unilaterally got themselves appointed the Next Friends of the deity, is clear when we consider the following sequence of events. The VHP set up the RJN in 1986 to renovate, reconstruct and develop the birthplace of Ram. It was soon afterward, in 1989, that Deoki Nandan Agarwal filed the writ to get himself appointed the Next Friend. After the recent Allahabad

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High Court judgment, Nritya Gopal Das, president of the RJN, staked the RJNs claim to build the temple along with Ram Lalla We will build it with Ram Lalla, which will remain its owner, as it has always been, he declared (Bhattacharya 2010). Thus, this position of Next Friend has been unilaterally appro priated by the RJN and the VHP. Even if the deity is to be considered a minor, the only reason that the VHP is its Next Friend, is that the VHP approached the court first, having worked out its longterm strategy in Ayodhya. Consider the other Hindu party to the dispute, with a much older history in Ayodhya than the RJN, but which had for long been eclipsed by the RJN until the judgment suddenly made it visible. NA is a religious denomination follow ing its own religious faith and customs, belongs to the Vaishnav sampradaya and is one of the 14 akharas recognised by the Akhil Bharatiya Akhara Parishad. NA has long been at loggerheads with the VHPdominated RJN and in April this year, it broke off all ties with the RJN. The chief priest of the NA, Mahant Jagannath Das said, VHP does not have any claim over Ram Janmabhoomi. It just created communal riots and disturbed the peaceful atmos phere of country. It is responsible for whatever has happened in its socalled Ram temple movement (Khan 2011). The NA filed a suit as long ago as January 1885 with the sub judge of Faizabad, seeking consent to construct a temple for Lord Ram in the area called the Ram Chabutra, adjacent to the Babri mosque. (The RJN as we know, was set up about a century later!) The claim was not to the very land occupied by the Babri masjid, but to build a temple adjacent to it. The subjudge held then that two large religious structures in close proximity could poten tially be a threat to public order. Permission was denied by the court, though the NA has since kept up its effort to construct the temple. Bhaskar Das, the Mahant of NA, was the man who had filed the first petition in 1959 seeking ownership rights of the land in Ayodhya adjacent to the mosque. He said to a reporter: You know who filed the petition on our behalf for the first time? He was a Muslim, one Siddiqui sahib (Banerjee 2010). The current disagreements between the RJN and NA as to who will build the temple, whether the decision should be appealed in the Supreme Court, and whether a mosque should be built along side, is a clear indication that while the appropriation of the status of spokesperson of the Hindus status by the RJN/VHP may have legal standing currently, it can be legitimately challenged in court. Akhil Bharatiya Akhara Parishad president Gyan Das wants Muslims to build the temple and Hindus to build the mosque, proposing that the two shrines be set up side by side. To be able to do that, Gyan Das, who belongs to the NA, says his sect and the NA will have to build the temple together (ibid). Rohit De points to a precedent for the argument that the claim of particular groups to speak for the entire religious community can be challenged before the court the ongoing litigation over the Parasnath Hill in Jharkhand. The suit began when a Swetamber Jain trust sued the state of Bihar/later Jharkhand for control over certain shrines and pilgrimage facilities. The Digambers inter vened in a separate suit and argued that Sheth Anandji Kalyanji Trust (a Swetamber Trust) have no proprietary interest over the hill property nor do they have any hold in the forest. Rather, the Jain community as a whole has a right to worship on the shrines

over hill and the other customary rights arising therefrom. The litigation on this has been going on for over 50 years in various forms and is currently being argued before the Supreme Court.26

5 Faith as Hindu/Hinduism as Culture

The confident assertion by Yadav and Banerjee that Everybody accepts that Lord Ram is integral to Hinduism and that he was born in Ayodhya is open to scrutiny. The heterogeneity of Hindu beliefs and practices across the country (including the worship of Ravana in several parts of India);27 the fact that for large numbers of practising Hindus, Ram is not even a deity to be worshipped but an ideal man, maryada purushottam; the fact that there are very few temples to Ram;28 are all matters that can be established in court, challenging the idea that everyone accepts that Ram is integral to Hinduism. Soon after the judgment, some commentators applauded it for recognising that the social world of our subcontinent is deeply formed by its religiosacred inheritances. Most people regard the divine to be intimately and integrally involved in human life (Mani 2010: 11); and for creating a space for compassion and hu man sentiments (Nandy 2010: 16). Both Mani and Nandy seem to have accepted the general assessment then prevalent in the media and assiduously purveyed by some sections of the BJP that the judgment had accommodated faith. But as I hope to have demonstrated, only one faith, indeed, one particular voice in Hinduism, is legitimised in the judgment; and of course, the religio sacred inheritance of Muslims is not considered worthy of recog nition at all. Mani further suggests that the judgment vindicates
the grounds that already exist for forging a common struggle against authoritarian religionThe very thing that secularism is unable to notice: the openended, intimate, dialogic and, at heart, individual re lationship with Allah or deity, a fact inimical to the fundamentalist project (2010: 11).

On the contrary, it is precisely authoritarian religion and the fundamentalist project that has been vindicated by the judgment, the project that demolished the Babri masjid and seeks the build ing of a temple at that very spot mandir vahin banayenge. Manis intimate dialogic relationship with ones god does not require that god be accommodated in grand temples at the very site where the place of worship of another faith once stood. Nandy seems to think (or did at that point) that the judgment encourages Ayodhya to settle its problems locally[It] recog nises that the final solution cannot come from the courts; it will have to come from the local communities (2010: 17). With all due respect, the judgment does nothing of the sort. I doubt that Nandy had read any part of the judgment at the time, at any rate there is not one concrete reference to the judgment in his entire article. Mani cites Justice Khans Epilogue, but we will return to Khans judgment in conclusion, and I suggest that a serious reading of his judgment would in fact undermine the majority decision. This conflation of faith, religiosacred inheritance or religion with the professed beliefs and practices of one strand of Hinduism is one common way of privileging Hindutva. A brief aside is not out of place here, to consider another kind of privileging of Hindutva, in the public realm. This is the characterisation of Hindu practices (and sometimes of Hindutva the political project) as nonreligious,
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cultural, and generally Indian, as the Supreme Court judgment on Bal Thackerays politics did in 1995, terming Hindutva as way of life and as Indianisation (Menon 1998: PE6). A more recent example of this strategy has been drawn to our attention by Arun Thiruvengadam. A judgment of a division bench of the Gujarat High Court recently dismissed with exem plary costs of Rs 20,000, a public interest litigation filed by a dalit activist challenging the performance of Hindu religious func tions during a foundation laying/bhumi pujan ceremony on the grounds of the high court. The petitioner had claimed that the performance of such a Hindu ceremony in a government institu tion would shake the confidence of the people who do not be lieve in Hindu religion and was therefore unconstitutional. The judges held that any apprehension that the impartiality of the judiciary was impugned on account of prayers and the sanskrit slokas spoken at that ceremony, was a misreading of a noble intention of praying the earth for the successful construc tion of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. The court was of the opinion that the offering of prayers for the betterment of everybody cannot be termed as a nonsecular activity. The real object and purpose of the prayers was the successful construction of the building and not for flour ishment of any religion. As Thiruvengadam comments:
The Times of India report on the case carries the headline: Secularism is not antigod. Students of the Indian judiciarys body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be antigod to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all re ligions in India be treated equally (2011).

a minor, the statute of limitations on contesting adverse posses sion does not apply. This means that the SWB can use neither the argument of actual exclusive possession (since Hindus continued to worship in the outer courtyard) nor that of adverse possession (assuming a temple was destroyed 400 years ago to build the mosque) because Ram Lalla is not bound by the statute of limita tions, being a minor, and can claim its property back even after 400 years. (b) The use of history in civil suits over property title has been established as impermissible by an earlier judgment of the Su preme Court in the Karnataka Board of Wakf case (2003). Title over property can only be ascertained by the courts for the last one hundred years and not beyond, it was held.29 (c) The status of Next Friend has been unilaterally appropriated by the VHP claiming to represent all Hindus, a claim that can be contested in court. (d) The use of the terms Hindu and Muslim for the three spe cific parties to the title brings into the ambit of the judgment all Hindus and Muslims, who should therefore, be permitted to have a voice in court. (e) The notion of faith and belief has been conflated with the professed faith of one strand of Hinduism only. If these notions are to have their place in a court of law, then they must be consist ently applied, taking into account the faith of all parties to the suit. (f) Hindu law and Islamic law have been inconsistently applied in the case, and there is no explanation offered anywhere, of the principle of adjudication followed when one comes into conflict with the other. What is clear is that Hindu law has been consist ently privileged.

7 Justice Khan Findings in Conflict with Decision

Coming now to Justice Khans judgment, the summary of his findings is in direct contradiction to those of the other judges. He finds (in sum) that30 The disputed structure was constructed as mosque by or under orders of Babar; No temple was demolished for constructing the mosque; Mosque was constructed over the ruins of temples and some material thereof was used in construction of the mosque; That for a very long time till the construction of the mosque it was treated/believed by Hindus that somewhere in a very large area of which premises in dispute, is a very small part where the birthplace of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area. That after some time of construction of the mosque, Hindus started identifying the premises in dispute as exact birthplace of Lord Ram or a place wherein exact birthplace was situated. That much before 1855 Ram Chabutra and Seeta Rasoi had come into existence and Hindus were worshipping in the same. It was very very unique and an absolutely unprecedented situation that inside the boundary wall and compound of the mosque the Hindu religious places were there which were actually being worshipped along with the offerings of namaz by Muslims in the mosque. That in the early hours of 23 December 1949, idols were placed beneath the central dome of the mosque.

The universal position claimed by Hinduism in such situations (where Hindu practices reflect general Indian culture (breaking coconuts, worshipping bhumi), while other practices are religious) is exposed if one plays with a counterfactual idea around the in sistence of the Hindu right that Vande Mataram be sung by Muslims. The song supposedly merely shows veneration to ones motherland, and by focusing on its idolatrous implications, the Hindu right claims, Muslims display their lack of patriotism. In response, let us take a simple uttering of the sentiment, god is great, which could surely be proclaimed by any believer. Now, let us insist it must be said in the following way: Allah-o-Akbar. The impossibility of passing off the latter as merely cultural reveals, as feminists recognised long ago, that proclaimed universals are always surreptitiously coded with the features of the dominant group, as Seyla Benhabib has pointed out in another context (Benhabib 1986). The Ayodhya judgment and the Gujarat High Court judgment are thus similar in flouting, through different strategies, the basic principle of Indian secularism sarva dharma sama bhava.

6 Summary of Flaws in Judgment

Before we move in conclusion to Justice Khans judgment then the following points discussed so far may be noted: (a) The status of the idol as a juristic person and as a minor has been conflated, permitting the argument that since Ram Lalla is
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That is, he disagrees with both Sharma and often with Agar wal on every key issue he holds that the structure was a mosque, that no temple was destroyed to build it, that Hindus have not always believed that the spot under the dome of the Babri masjid was the birthplace of Ram, and that the idols that miracu lously appeared in 1949 were placed there by human hands. The decision he hands down, however, does not follow from this outline of facts at all. Rather, we have to understand his deci sion in the light of the Epilogue31 in which he sets out his reason ing. My judgment is short, very short, he concedes,32 but Some times patience is intense action, silence is speech and pauses are punches. What is it that he wants us to hear in his silences? He recognises that this judgment is not finally deciding the matter and that the most crucial stage is to come after it. Keep ing this in mind, he offers a reminder to both the warring fac tions to the Hindus, of the quality of tyag (sacrifice) that char acterised Ram; and to the Muslims, of Mohammads treaty with the rival group at Hudayliyah, which initially appeared to be a surrender, but which proved to be a wise compromise, because within a short span of time, Muslims entered the Mecca as victors, and not a drop of blood was shed. Although earlier in his judgment he celebrated the resilience showed by India after the demolition of the Babri masjid, at this point he cautions against continuing on this path; implying a ref erence to the Hindu rights claims on mosques at Kashi (Gyanvapi) and Mathura (Katra) when he says somberly: Another fall and we may not be able to rise again, at least quickly. Today the pace of the world is faster than it was in 1992. We may be crushed. He quotes Iqbal here:
Na samjhoge toh mit jaoge ae hindostanwalon/tumhari daastan tak na hogi daastanon mein (If you fail to understand, you will be erased, oh dwellers of Hindostan/ your very stories will vanish from history.) Turning to Darwin (what an authority to quote in a religious matter! he says in a tongueincheek aside), he reminds us: Only those species survived which collaborated and improvised.

on this question is by the state of New York in 1889 in Riggs vs Palmer. The majority decision was that over and above ordinary law, there were the fundamental maxims of the common law, according to which,
No one shall be permitted to profit by his own fraud, or to take advan tage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilised countries, and have nowhere been superseded by statutes.33

He then urges Muslims, as junior partners in this democracy, to play a positive role in the resolution of this conflict. Thus, when he finally concurs with Justice Sharma in finding both the parties to be joint title holders in possession of the entire premises in dispute, and allots to the Hindus, the portion beneath the central dome where at present the makeshift temple stands, it is clear that the decision does not follow from his findings as out lined above.

This understanding is widely accepted in legal philosophy, and Ronald Dworkin for example, has argued that in addition to rules established in statutes, ethical principles are also a com ponent of law (1967: 2324). Let us remind ourselves that in the Ayodhya case, the court framed the issues 25 and 26 in the manner as outlined in Section 2(a) on page 82. It should be clear that this manner of framing the issues vio lates the basic principle of legal ethics, permitting the criminal to take advantage of his own wrongdoing. Lata Mani sees the judgment as making it possible to facilitate peace understood as negotiated compromise (Mani 2010: 12). However, if the reasoning of Justice Khan is to be taken seriously, and it is accepted that the judgment on this issue cannot be purely about legal verities, but must foster compassion and peace, then why are we limited to this particular conclusion that treats Muslims as junior partners? Why is the sacrifice to be on the part of the younger sibling rather than the older? If the reasoning behind Justice Khans decision can be a legally sound basis for arriving at a decision, then Ashis Nandys claim is vindicated that The aim of a judgment is to deliver justice within the law, not absolute justice. But to acquire moral stature, it should ideally make sense within the ethical frames of ordinary citizens (2010: 16). However, I hope to have shown that the decision as a whole fails both tests that of delivering justice within the law as well as making sense within the ethical frames of ordinary citizens, presuming that the latter includes all citizens of India. However, if Nandys claim can be read as a blueprint of what a judgment, especially a judgment on Ayodhya, ought to do, I am in agreement with him. Justice Khans Epilogue brings in ethics in an extraordinary fashion into the law. His argument is fully one half of the two

THE VERDICT ON AYODHYA

December 11, 2010
Dissecting the Ayodhya Judgment Secularism and the Indian Judiciary Idols in Law Issues of Faith Was There a Temple under the Babri Masjid? Reading the Archaeological Evidence Anupam Gupta P A Sebastian Gautam Patel Kumkum Roy Supriya Varma, Jaya Menon

8 Role of Ethics in Legal Reasoning

What we see is that despite the findings as he sees them based on law and evidence, he privileges something else, something intan gible, a patience that is intense action the continued existence and survival of India as a plural society. What Justice Khan privi leges is a form of ethical reasoning that is widely accepted as be ing part of law. Seen from this perspective, the majority decision (including Khans voice in it), in fact, violates the widely accepted common law principle that no one should benefit from his own wrongdoing. If one murders a person to inherit his wealth, then one should not be eligible to inherit it. The landmark judgment

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judge decision, and if that reasoning is tenable, then there is no reason why the Supreme Court should not consider the case before it, keeping Justice Khans objectives in view. That is, rather than treating the issue either as a straightforward property dis pute (which can legally only be resolved in favour of the SWB) or as a situation in which the powerful threatening majoritarian forces have to be appeased,34 the Supreme Court could address the issue as one involving the future of plural faiths, Indias future as a democracy, the need to live together, and above all, the desires of the people of Ayodhya themselves. As we saw earlier, it is already emerging that the way in which the NA (and other Akharas) see the situation and the way in which the RJN does, are quite opposed, with the former wanting a just and more local reso lution in which the Muslims of Ayodhya will have a say. If Justice Khans judgment has legal standing, then its reason ing is as important as his solution. This same reasoning can well be followed by the Supreme Court to arrive at a decision that is more just and inclusive. However, as things stand, the reason for the stay granted by the Supreme Court that the parties had
Notes
1 Supreme Court Stays Allahabad High Court Verdict on Ayodhya, The Hindu, 9 May 2011. 2 Extensive summaries of the voluminous judg ment prepared by Biswajit Roy (Reading the Ayodhya judgment, Part I http://kafila. org/2010/10/09/readingtheayodhyajudge mentbiswajitroy/ and Part II http://kafila. org/2010/10/15/readingayodhyajudgementii biswajitroy/) and by Aparna Chandra (http:// papers.ssrn.com/sol3/papers.cfm? abstract_ id=1690803) are invaluable resources. The full judgment is available at http://rjbm.nic.in/ 3 Read the Ayodhya Judgment: BJP Advice to Left, 5 October 2010, http://www.zeenews.com/ news659771.html 4 Faith Upheld by Law, Says Advani, The Asian Age, 4 October 2010, http://www.asianage.com/ india/faithupheldlawsaysadvani751 5 The use of the terms Hindu and Muslim parties for the RJN, NA and SWB in the judgment, is noteworthy and we will return to it in conclusion. 6 Justice Sharma, pp 11213, Vol 1, OS No 4/1989. 7 Summary of judgment by Aparna Chandra, op cit, p 11. 8 Justice Agarwal, p 3315. 9 Justice Sharma, pp 29091, Vol 2, OS No 4/1989. 10 Epilogue to Justice Khans judgment. http://rjbm. nic.in/suk/O.O.S.%20Nos.1,3,4%20&%205%20of %201989.pdf 11 Presentation at seminar on Ayodhya at Centre for Historical Studies, JNU, January 2011. 12 Ibid. 13 Ibid. 14 Ibid. 15 Justice Sharma, pp 23637, Vol 3 OS No 4/1989. 16 Justice Agarwal, p 3962. 17 Gist of findings Justice Khans judgment point 7, p 282. 18 Justice Sharma, p 87, Vol 3, OS No 4/1989. 19 Justice Sharma, p 121, Vol 4, OS No 4,1989. 20 Justice Sharma, p 144, Vol 4, OS No 4/1989. 21 Justice Agarwal, pp 259495. 22 Panel discussion The Ayodhya Verdict: Fact vs Faith, organised by a student group, Anveshan, in October 2010. 23 Presentation at LASSNET conference, Pune, December 2010. 24 Supreme Court judgment on Aruna Shanbaug eu thanasia petition, Para 126 (i). http://ibnlive.
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not asked for partition is more than a little worrying. If the issue is treated purely as a property dispute, in order that one and only one party may be granted the entire territory, the reasoning be hind Justice Sharmas minority verdict in the high court decision may well prevail. In any case, granting of the property to any one of the three parties would only leave the wound festering. The parties to the property dispute are three specific groups, but they are continuously referred to by all three judges in the high court decision as the Hindu and Muslim parties. If Hindus and Muslims are party to the case, then other Hindu and Muslim voices must be heard too. Every citizen of India has a stake in the resolution of the Ayodhya issue. We must insist our voices be heard, that wideranging discussions be conducted nationwide with the residents of Ayodhya, Hindu and Muslim, as the primary participants to start the process of a just, creative and sustainable resolution of this intolerable situation. The Supreme Court, in short, can do justice only by mandating a return of the Ayodhya dispute to the realm of politics, where it should have been resolved in the first place.
to marry the raped woman to her rapist, in order to secure peace. The Second Demolition at http:// kafila.org/2010/10/02/theseconddemolitionayo dhyajudgementseptember302010/

25

26 27

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30 31 32 33 34

in.com/news/fulltextsupremecourtsjudgment onarunaramachandraeuthanasiapetition/ 145201 53.html It should be clear that I am not here going into the substance of the judgement that has crucial impli cations for the Right to Life. Two recent articles in EPW have raised this debate by Rakesh Shukla and Sushila Rao in EPW, 30 April 2011. I only draw attention here to the fact that simply making a claim to be Next Friend is not sufficient and rival claims are assessed by courts, finding one claim to be acceptable over others. Ibid. See accounts of Ravana worship in Karnataka, Madhya Pradesh and Jodhpur in Hindu Blog: Ravan Is Worshipped at Khonpura Village in Madhya Pradesh, http://www.hindublog.com/ 2010/09/ravanisworshippedatkhonpuravillage. html Ravana Worshipped in Kolar District of Karnataka, http://www.hindublog.com/2008/07/ ravanaworshippedinkolardistrictof.html Ravana Descendants Planning to Instal Idol, http://www. hindublog.com/2006/11/ravanadescendantsplan ningtoinstall.html For example, there are only three listed out of 61 major and ancient Temples in India by Swami Sivananda in a Divine Life Society publication. These are at Bhadrachalam, Nasik and Ayodhya, the last listed as destroyed by Babur. See http:// www.dlshq.org/download/temples.htm#_VPID_22. This list is of course not exhaustive, but is certainly indicative of the fact that Ram is not worshipped in temples generally. The impossibility of ascertaining and adjudicat ing between such longstanding claims is evident when we consider the claim of Buddhists to a his tory in Ayodhya going back to the 7th century BCE. Press release from the All India Confederation of SC/ST Organisations after the Ayodhya judgment. http://kafila.org/2011/01/08/ayodhyaforbuddhist sallindiaconfederationofscstorganisations/ Gist of findings of SU Khan, J http://rjbm.nic.in/ suk.pdf Epilogue to Justice Khans judgment, http://rjbm. nic.in/suk/O.O.S.%20Nos.1,3,4%20&%205%20of %201989.pdf It is 285 pages to Sharmas 5019 and Agarwals 560 pages. http://www.courts.state.ny.us/reporter/archives/ riggs_palmer.htm In an intervention very soon after the judgment I had likened it to a decision of the village panchayat

References
Banerjee, Biswajeet (2010): Muslim Pleaded for Nirmohi Akhara in 1959, The Pioneer, 1 October. Benhabib, Seyla (1986): The Generalised and the Concrete Other: The KohlbergGilligan Contro versy and Feminist Theory, Praxis International, 5, 4 January. Bhattacharya, Debaashish (2010): God of Small Things, The Telegraph, 7 November. Dworkin, Ronald M (1967): The Model of Rules, The University of Chicago Law Review, Vol 35, No 1, (Autumn), pp 1446. Farasat, Warisha (2010): Ayodhya Verdict: Does It Provide Closure?, http://kafila.org/2010/11/09/ ayodhyaverdictdoesitprovideclosure/ Gupta, Anupam (2010): Dissecting the Ayodhya Judgment, Economic & Political Weekly, 11 De cember. Khan, Arshad Afzal (2011): Nirmohi Akhara Severs Ties with VHP, Times of India, 16 April. Mani, Lata (2010): Where Angels Fear to Tread: The Ayodhya Verdict, Economic & Political Weekly, 6 October. Menon, Nivedita (1998): State/Gender/Community: Citizenship in Contemporary India, Economic & Political Weekly, 31 January. Nandy, Ashis (2010): The Judges Have Been Injudi cious Enough to Create a Space for Compassion and Human Sentiments, Tehelka, 6 November. Patel, Gautam (2010): Idols in Law, Economic & Political Weekly, 11 December. Teltumbde, Anand (2010): Whither the Faith of Indians, Your Lordhsips?, Economic & Political Weekly, 13 November. Thiruvengadam, Arun (2011): Gujarat High Courts Stimulating Interpretation of the Demands of Indian Secularism, http://lawandotherthings. blogspot.com/2011/02/gujarathighcourtsstim ulating.html Vyas, Neena (2010): RSS, VHP Welcome Court Deci sion, The Hindu, 18 September. Yadav, Bhupender and Vikramjit Banerjee (2010): Courts Cant Judge the Rationality of Faith, Tehelka, 30 October.

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