Historical Rights or Wrong
The law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course which history has taken. The courts of today cannot take cognisance of historical rights and wrongs unless it is shown that their legal consequences are enforceable in the present. Thus, before this Court embarks on a lengthy historical enquiry, it is important to consider the extent to which acts done and rights accrued under previous legal regimes have legal consequences today under our present laws.
Articles 372 and 296 of the Constitution evidence a legal continuity between the British sovereign and the Republic of India. Moreover, the conduct of the Republic of India subsequent to attaining Independence was to uphold private property claims that existed during the rule of the British sovereign.
This Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate. However, the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of rights and liabilities on the basis of our ideology, our religion, the colour of our skin, or the century when our ancestors arrived at these lands, and submitted to the rule of law. Under our rule of law, this court can adjudicate upon private property claims that were expressly or impliedly recognised by the British sovereign and subsequently not interfered with upon Indian independence.
Importance of Gazette and account of Historians
the gazette was not treated to be independent evidence of a conclusive nature in itself. The contents of the gazetteer may be read in conjunction with other evidence and circumstances. They may be taken into consideration but would not be conclusive evidence. Consequently, where there is a dispute pertaining to possession and title amidst a conflict of parties, historical accounts cannot be regarded as conclusive. The court must then decide the issue in dispute on the basis of credible evidentiary material.
Interpreting history is an exercise fraught with pitfalls. There are evident gaps in the historical record, as we have seen from the Babur-Nama. Translations vary and have their limitations. The court must be circumspect in drawing negative inferences from what a historical text does not contain. We are not construing a statute or a pleading. We are looking into historical events knit around legends. stories, traditions and accounts written in a social and cultural context different from our own. There are dangers in interpreting history without the aid of historiography. Application of legal principles to make deductions and inferences out of historical context is a perilous exercise. One must exercise caution before embarking on the inclination of a legally trained mind to draw negative inferences from the silences of history. Silences are sometimes best left to where they belong – the universe of silence.
In a case such as the present, history presents another difficulty: in Eastern philosophy, religious tradition is transmuted through generations by modes not confined to written records.
There are severe limitations in applying the test of preponderance of probabilities in situations like the present founded in aural traditions as much as in written text, where belief is nurtured by religion as much as by mythology and cultural traditions borne in epics, music and celebrations of festival provide balm to the soul of the believer.
The Court can take into consideration the Gazetteers under the Evidence Act, 1872, even though, the statement in Gazetteers will not be treated as conclusive evidence but the presumption of correctness of that statement is attached to it. The admissibility of books and travelogues cannot be denied in view of Section 57. Section 81 of the Evidence Act also contemplate for a presumption of genuineness of every document purporting to be any official Gazette or the Government Gazette.
Conclusion on Janmasthan
All Gazettes published by the Government authority repeats the same statement that Babri Mosque was constructed at the Janmasthan of Lord Ram. There is no evidence worth name led of the plaintiffs of Suit No.4 to disprove the above statement and further, oral evidence as noticed above clearly supports the faith and belief of Hindus that Lord Ram was born at the place where Babri Mosque has been constructed. The conclusion that place of birth of Lord Ram is the three- dome structure can, therefore, be reached.
Section 110 is based on the principle that possession in and of itself may raise a presumption of title. But this applies when the facts disclose no title in either of the disputants in which case, as it is said, possession alone decides. Hence, on the other hand, it is also well-settled that the presumption cannot be arise when the facts are known.
The Muslims were unable to establish a specific grant of the land as a foundation of legal title prior to the annexation of Oudh or upon the transfer of power to the colonial administration after 1857.
Though, the case of the plaintiffs in Suit 4 is that the mosque was constructed in 1528 by or at the behest of Babur, there is no account by them of possession, use or offer of namaz in the mosque between the date of construction and 1856-7. For a period of over 325 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British, the Muslims have not adduced evidence to establish the exercise of possessory control over the disputed site. Nor is there any account in the evidence of the offering of namaz in the mosque, over this period;
In 1856-57, a communal riot took place. Historical accounts indicate that the conflagration had its focus at Hanumangarhi and the Babri mosque. Some of those accounts indicate that prior to the incident, Muslims and Hindus alike had access to the area of the mosque for the purpose of worship. The incident was proximate in time with the transfer of power to the colonial government. The incident led to the setting up of a railing made of a grill-brick wall outside the mosque. The object of this would have been to maintain peace and due order at the site. The railing provided the genesis of the bifurcation of the inner courtyard (in which the structure of the mosque was situated) and the outer courtyard comprising the remaining area. The setting up of the railing was not a determination of proprietary rights over the inner and outer courtyards, the measure having been adopted to maintain peace between the two communities.
An application was submitted by Syed Mohammad Khateeb, Muazzim of the Masjid. The contents of the application indicate that by this time a platform had been constructed inside the mosque in which an idol had been placed. A fire had been lit and arrangements were made for puja. Evidently, the railing did not prevent access to the inner courtyard or to the precincts of the mosque.
The sequence of events emanating from the installation of an idol in 1873, the specific permission to the Hindus to open an additional access on the northern side and the observations in the appeal that the objections to the opening were baseless are significant. The presence and worship of the Hindus at the site was recognised and the appellate order rejected the attempt to cede control over the entry door to the Muslims as this would make the Hindu community dependent on them. The administration in other words recognised and accepted the independent right of the Hindu worshippers over the area as a part of their worship of the idols.
In so far as the worship by the Muslims in the inner courtyard is concerned, the documentary material would indicate that though obstructions were caused from time to time, there was no abandonment of the structure of the mosque or cessation of namaz within. As regards namaz within the disputed site, the evidence on record of the Muslim witnesses, indicates that post 1934 namaz was being offered until 16 December 1949. However, the extent of namaz would appear to have been confined to Friday namaz particularly in the period preceding the events of December 1949. Both Hindu and Muslim witnesses state that active measures were being taken by the Sadhus and Bairagis to prevent the Muslims from approaching the disputed premises and from offering prayers. This primarily shows that the disputed site witnessed use by worshippers of both the faiths. Obstructing Muslims from accessing the mosque did not mean that they had had no claim to or had abandoned the disputed site.
Photographs of Interiors and Exteriors of Babri Mosque
The photographs on the record contain inscriptions of Islamic origin and of images traceable to Hindu forms of worship. Both co-existed in the disputed structure. They signify that in the diversity of plural cultures in the sub-continent, there is underlying it all a universal truth founded in the essential one-ness of mankind.
Important facets based on Oral and Documentary Evidence
531. Analysing the depositions of the above witnesses, the following facets can be gleaned:
(i) Hindus consider Ayodhya as the birth-place of Lord Ram. Hindu Shastras and religious scriptures refer to it being a place of religious significance;
(ii) The faith and belief of the Hindus is that Lord Ram was born inside the inner sanctum or ̳Garbh Grih‘ right below the central dome of the three domed structure;
(iii) What Muslims call the Babri mosque, the Hindus consider as the Ram Janmabhumi or the birth-place of Lord Ram;
(iv) The faith and belief of the Hindus that Lord Ram was born in Ayodhya is undisputed. Muslim witnesses also stated that Hindus have faith and belief in the existence of the Janmasthan;
(v) Both Hindu and Sunni witness testimonies indicate that the disputed site was being used for offering worship by devotees of both faiths;
(vi) Both Hindu and Sunni witnesses have described the physical layout of the disputed structure in the following manner:
(a) There were two entrances to the disputed premises – one from the
East through the Hanumat Dwar and the other from the North through Singh Dwar. There were on both sides of Hanumat Dwar black touch stone (Kasauti stone) pillars with engravings of flowers, leaves and Hindu Gods and Goddesses. Hindus used to pray and offer worship to the engravings on the pillars. Two Hindu witnesses spoke about the ̳Jai and Vijai‘ engravings;
(b) Outside the main gate was a fixed stone with the words ̳Janam Bhumi Nitya Yatra‘ written on it. On entering through this gate, the Ramchabutra was on the left upon which the idols of Lord Ram had been placed. Kirtan was carried out near the Ramchabutra by devotees and saints;
(c) In one corner of the outer courtyard idols of Ganesha, Nandi, Shivlinga, Parvati and others were placed below a fig and a neem tree;
(d) There existed a structure with a thatched roof, which had provisions for storing food and preparing meals;
(e) Outside the disputed premises, in the south-eastern corner, Sita Koop was located at a distance of 200-250 paces;
(f) The Northern entrance gate to the disputed site was Singh Dwar above which a pictorial representation of garuda was engraved in the centre with two lions on either side. On entering through Singh Dwar, Sita Rasoi was accessed, which included a Chauka-Belan- Choolha, Charan Chinha and other signs of religious significance; and
(g) To the West of Ramchabutra, there was a wall with iron bars. Inside the railing was the three domed structure which Hindus believed to be the birth-place of Lord Ram. The Hindus believed this as the ̳Garbh Grih‘ which was considered a holy and revered place. There existed black Kasauti stone pillars in the three domed structure. The witnesses stated that the pillars had engravings of flowers, leaves, Gods and Goddesses on them;
(vii) A pattern of worship and prayer emerges from the testimonies of the witnesses. Upon entering Hanumat Dwar, the Hindus used to offer prayers and worship the idols of Lord Ram placed upon the Chabutra in the outer courtyard followed by the idols placed below the fig and neem tree. Prayers were offered at the Sita Rasoi and then pilgrims used to pay obeisance to the ̳Garbh Grih‘ located inside the three domed structure, while making their offerings standing at the iron railing that divided the inner and outer courtyard. The Hindus performed a parikrama or performed circumbulation of the Ram Janmabhumi;
(viii) Both Hindu and Muslim witnesses stated that on religious occasions and festivals such as Ram Navami, Sawan Jhoola, Kartik Poornima, Parikrama Mela and Ram Vivah, many Hindu pilgrims from across the country visited the disputed premises for darshan. Worshippers used to take a dip in the Saryu river and have darshan at Ram Janmabhumi, Kanak Bhawan and Hanumangarhi. Pilgrims would perform a customary circumambulation around the disputed premises; and
(ix) Both Hindu and Muslim witnesses have referred to Panchkoshi and Chaudahkosi Parikramas that were performed once a year during the month of Kartik, which attracted lakhs of pilgrims to the city of Ayodhya.
769. The disputed site has witnessed a medley of faiths and the co-existence of Hindu and Muslim practices, beliefs and customs. A blend of Hindu and Muslim elements emerges from the religious and architectural tradition associated with the erstwhile structure which embodied features both of a temple and a mosque. While, the distinctive architectural elements overlapped they were yet easily recognisable. They were symbols of a syncretic culture. Specific sculptured finds such as the black Kasauti stone pillars along with the presence of the figurines of Varah, Garud, Jai and Vijay suggest that they were primarily meant for decoration of a Hindu temple facade and served as deities to be worshipped. At the same time, the distinctive appearance of a mosque emerged from the three domes, the Vazoo, the stone inscription with ̳Allah‘, the mimbar and the mehrab. These features indicate that the disputed premise was constructed as a mosque. Within the premises of the same complex there existed two religious faiths. Their co- existence was at times, especially before 1856, accepting and at others, antagonistic and a cause of bloodshed. Yet, the distinctive features of the site, embodying both Hindu and Islamic traditions led to the creation of a space with an identity of its own. The real significance attached to the composite structure is evidenced by the nature and the length of use by both of the parties.
A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI.
Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries. No evidence has been placed on the record in relation to the course of human history between the twelfth and sixteen centuries. No evidence is available in a case of this antiquity on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-existing structure was demolished for the construction of the mosque. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial.
XVIII The net result, as it emerges from the evidentiary record is thus:
(i) The disputed site is one composite whole. The railing set up in 1856-7 did not either bring about a sub-division of the land or any determination of title;
(ii) The Sunni Central Waqf Board has not established its case of a dedication by user;
(iii) The alternate plea of adverse possession has not been established by the Sunni Central Waqf Board as it failed to meet the requirements of adverse possession;
(iv) The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship;
(v) The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims;
(vi) The existence of the structure of the mosque until 6 December 1992 does not admit any contestation. The submission that the mosque did not accord with Islamic tenets stands rejected. The evidence indicates that there was no abandonment of the mosque by Muslims. Namaz was observed on Fridays towards December 1949, the last namaz being on 16 December 1949;
(vii) The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law;
(viii) Consistent with the principles of justice, equity and good conscience, both Suits 4 and 5 will have to be decreed and the relief moulded in a manner which preserves the constitutional values of justice, fraternity, human dignity and the equality of religious belief.
XVIII The Hindus have established a clear case of a possessory title to the outside courtyard by virtue of long, continued and unimpeded worship at the Ramchabutra and other objects of religious signficance. The Hindus and the Muslims have contested claims to the offering worship within the three domed structure in the inner courtyard. The assertion by the Hindus of their entitlement to offer worship inside has been contested by the Muslims.
Conclusion on title
795. The facts, evidence and oral arguments of the present case have traversed the realms of history, archaeology, religion and the law. The law must stand apart from political contestations over history, ideology and religion. For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests. The law forms the ground upon which, multiple strands of history, ideology and religion can compete. By determining their limits, this Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another. On 15 August 1947, India as a nation realised the vision of self-determination. On 26 January 1950 we gave ourselves the Constitution of India, as an unwavering commitment to the values which define our society. At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before the law. Every judge of this Court is not merely tasked with but sworn to uphold the Constitution and its values. The Constitution does not make a distinction between the faith and belief of one religion and another. 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. The Constitution speaks to the judges who interpret it, to those who govern who must enforce it, but above all, to the citizens who engage with it as an inseparable feature of their lives.
796. In the present case, this Court is tasked with an adjudicatory task of unique dimension. The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence. The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property.
797. On the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857. Their possession of the outer courtyard stands established together with the incidents attaching to their control over it.
798. As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. After the setting up of the grill-brick wall, the structure of the mosque continued to exist and there is evidence to indicate that namaz was offered within its precincts. The report of the Waqf Inspector of December 1949 indicates that Muslims were being obstructed in free and unimpeded access to mosque for the purposes of offering namaz. However, there is evidence to show that namaz was offered in the structure of the mosque and the last Friday namaz was on 16 December 1949. The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship. After the proceedings under Section 145 of CrPC 1898 were initiated and a receiver was appointed following the attachment of the inner courtyard, worship of the Hindu idols was permitted. During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.
799. We have already concluded that the three-way bifurcation by the High Court was legally unsustainable. Even as a matter of maintaining public peace and tranquillity, the solution which commended itself to the High Court is not feasible. The disputed site admeasures all of 1500 square yards. Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquillity.
800. Suit 5 has been held to be maintainable at the behest of the first plaintiff (the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend) has been held to be entitled to represent the the first plaintiff. We are of the view that on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly decreed by directing the allotment of alternate land to the Muslims for the construction of a mosque and associated activities. The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence
in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims. This Court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existnce nourish the secular commitment of our nation and its people.
801. The area of the composite site admeasures about 1500 square yards. While determining the area of land to be allotted, it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship. Having weighed the nature of the relief which should be granted to the Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the consequent handing over of the land to the Sunni Central Waqf Board, shall be conducted simultaneously with the handing over of the disputed site comprising of the inner and outer courtyards as a consequence of the decree in Suit 5. Suit 4 shall stand decreed in the above terms.
802. Section 6 of the Acquisition of Certain Area at Ayodhya Act 1993 empowers the Central Government to direct that the right, title and interest in relation to the area or any part thereof, instead of continuing to vest in the Central Government shall vest in the authority or body or trustees of any trust which is
Section 7(1) provides that the property vested in the Central Government under Section 3, shall be maintained by the government or by any person or trustees of
803. We are of the view that it would be necessary to direct the Central Government to frame a scheme in exercise of the powers conferred upon it by Sections 6 and 7 to set up a trust or any other appropriate mechanism to whom the land would be handed over in terms of the decree in Suit 5. The scheme shall incorporate all provisions necessary to vest power and authority in relation to the management of the trust or the body chosen for the vesting of the land. 804. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. We have also rejected the objection of Nirmohi Akhara and of the Sunni Central Waqf Board to the maintainability of Suit 5 which was based on their plea that Nirmohi Akhara is a shebait. Nirmohi Akhara‘s claim to be a shebait stands rejected. However, having regard to the historical presence of Nirmohi Akhara at the disputed site and their role, it is necessary for this Court to take recourse to its powers under Article 142 to do complete justice. Hence, we direct that in framing the scheme, an appropriate role in the management would be assigned to the Nirmohi Akhara.