Antiquity of the issue
The history and culture of this country have been home to quests for truth, through the material, the political, and the spiritual. This court is called upon to fulfil its adjudicatory function where it is claimed that two quests for the truth impinge on the freedoms of the other or violate the rule of law.
This court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime.
‘Juristic Personality’
Legal systems across the world evolved from periods of darkness where legal personality was denied to natural persons to the present day where in constitutional democracies almost all natural persons are also legal persons in the eyes of the law. Legal systems have also extended the concept of legal personality beyond natural persons. This has taken place through the creation of the artificial legal person or juristic person, where an object or thing which is not a natural person is nonetheless recognised as a legal person in the law… A legal person possesses a capability to bear interests, rights and duties.
The recognition of the Hindu idol as a legal or juristic person is therefore based on two premises employed by courts. The first is to recognise the pious purpose of the testator as a legal entity capable of holding property... The second is the merging of the pious purpose itself and the idol which embodies the pious purpose to ensure the fulfilment of the pious purpose… So conceived, the Hindu idol is a legal person.
…In a country like ours where contesting claims over property by religious communities are inevitable, our courts cannot reduce questions of title, which fall firmly within the secular domain and outside the rubric of religion, to a question of which community‘s faith is stronger
Top Court on archeology
Archaeology as a science draws on multi-disciplinary or trans-disciplinary approaches. In considering the nature of archaeological evidence, it is important to remember that archaeology as a branch of knowledge draws sustenance from the science of learning, the wisdom of experience and the vision which underlies the process of interpretation…
Archaeology combines both science and art. As a science, it is based on the principle of objective evaluation. As an art, it relies on a vision which is realised through years of commitment to the pursuit of knowledge based on the histories of eras. Archaeology as a discipline cannot be belittled as unreliable... The supposed distinction between science as embodying absolute truth and archaeology as unguided subjectivity is one of degree not of universes. Yet as in other disciplines of its genre, archaeology is as much a matter of process as it is of deduction.
The archaeologist must deal with recoveries as much as the finds‘ from them. Interpretation is its heart, if not its soul. Interpretations do vary and experts disagree.
When the law perceives an exercise of interpretation it must recognize margins of error and differences of opinion. Archaeological findings are susceptible of multiple interpretations… So long as we understand the limits and boundaries of the discipline, we can eschew extreme positions and search for the often elusive median.
Upholding ASI conclusion on excavations at the disputed site
It would be unfair to reject the conclusions, which have been arrived at by an expert team which carried out the excavation under the orders of the high court and has carefully analysed the recoveries from distinct perspectives. Yet the report must be read contextually, allowing for genuine divergences that arise on matters of interpretation… Having said this, we must also read the ASI report with the following caveats:
Though the excavation has revealed the existence of a circular shrine, conceivably a Shiva shrine dating back to the seventh to ninth century AD, the underlying structure belongs to twelfth century AD. The circular shrine and the underlying structure with pillar bases belong to two different time periods between three to five centuries apart; There is no specific finding that the underlying structure was a temple dedicated to Lord Ram; and Significantly, the ASI has not specifically opined on whether a temple was demolished for the construction of the disputed structure though it has emerged from the report that the disputed structure was constructed on the site and utilised the foundation and material of the underlying structure.
Consequently, when the ASI report will be placed in balance in terms of its evidentiary value in the course of this judgment, it is crucial for the court to sift between what the report finds and what it leaves unanswered.
The ASI report does find the existence of a pre-existing structure. The report deduces 17 rows of pillar bases (a total of 85). The report concludes on the basis of the architectural fragments found at the site and the nature of the structure that it was of a Hindu religious origin. The report rejects the possibility (urged by the Sunni Central Waqf Board) of the underlying structure being of Islamic origin. But the ASI report has left unanswered a critical part of the remit which was made to it, namely, a determination of whether a Hindu temple had been demolished to pave way for the construction of the mosque. ASI’s inability to render a specific finding on this facet is certainly a significant evidentiary circumstance which must be borne in mind when the cumulative impact of the entire evidence is considered in the final analysis.
Interpreting history
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...
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.
On applicability of law
The disputed property has fallen within the territory of various rulers and legal regimes. The question of which party, king or religion had a first claim to the disputed site is one of significant historical interest. But this court must determine what are the legal consequences arising from such an enquiry.
Human history is testament to the rise and fall of rulers and regimes. 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.
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. With respect to the disputed property, it is evident that the British Sovereign recognised and permitted the existence of both Hindu and Muslim communities at the disputed property upon the annexation of Oudh in 1856.
Railing led to right to worship by hindus
Prior to 1856-7 there was no exclusion of the Hindus from worshipping within the precincts of the inner courtyard; The conflagration of 1856-7 led to the setting up of the railing to provide a bifurcation of the places of worship between the two communities;
The immediate consequence of the setting up of the railing was the continued assertion of the right to worship by the Hindus who set up the Chabutra in the immediate proximity of the railing. Analysing the evidence advanced by Sunni Central Waqf Board, the court says
Though, the case of the Sunni Central Waqf Bopard is that the mosque was constructed in 1528, there is no account by them of possession, use or offer of namaz in the mosque. 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.
