Monday, October 18, 2010

Questioning “Faith” in the Ram Janmabhumi Judgment?

Continuing our coverage on the Ayodhya developments, we feature a guest post by Bhupender Yadav and Vikramjit Banerjee, who are advocates in the Supreme Court.

There is a continuous refrain from the secular intelligentsia everyday, that the Judgment of the Allahabad High Court in the Ram Mandir matter is based on faith, and, since faith has no place in law, therefore the judgment is invalid. The question is that, is it correct that the Court has “wrongly” considered faith as the basis of the judgment in the present case? To answer that question it is important to look at the prayers in the plaints of Suit No. 4 of the Sunni Waqf Board and Suit No.5 filed by the “deities” Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi.

The first and basic prayer of the Sunni Waqf Board in it’s suit is:
“ (a) Declaration to the effect that the property indicated by letters ABCD in the sketch map attached to the plaint is a public Mosque commonly known as “Babari Masjid” and that the land adjoining the Mosque shown in the sketch Map by letters EFGH is a public Muslim graveyard as specified in para 2 of the plaint may be decreed
(b) That in case in the opinion of the Court delivery of possession is deemed to be proper remedy, a decree of delivery of possession of the Mosque and graveyard in suit by removal of the idols and other articles which the Hindus may have placed in the Mosque as objects of worship be passed in the plaintiff’s favour, against the defendants."

It is important to note that what was being asked for is not a title to the land , but a declaration that the site was a “Public Mosque”. This would mean an essential decision as to whether the site can be called a “Public Mosque” at all . This means a conclusion will have to be drawn as to whether the said site could be called a Public Mosque in Islamic Law. Now, there are certain facts which have to be adjudicated in Islamic Law for a place to be called a Public Mosque and one of them is whether the Muslims ever treated this place as a public mosque, another, whether Islamic Law allows construction of mosques on places of worship of others and third, what is the status of a supposed Mosque which is presently a place of worship of another religion (all questions of faith ). It is also important to bear in mind that though it is being bandied about today that the dispute was a “title” suit , but what is most important to note is that the Sunni Waqf Board had never ever sought declaration that the “title” of the land be declared in their favour but had asked it to be declared a “Public Mosque” , with all it’s consequent conditions, which could not be decided without going into the “faith” of Muslims . The same “faith” which is a secular dirty word today.

At least in the Suit No. 5 filed by Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi title to the land was sought for:

“ (a) A declaration that the entire premises of Sri Ram Janma Bhumi at Ayodhya as described and delineated in Annexures I , II and III belong to the plaintiff deities;
(b) A perpetual injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any obstruction in the construction of the new temple building at Sri Ram Janmabhumi Ayodhya”

The above claim of the “deities” (who have the right to sue through their next friend under Hindu Law) was sought on the ground that Hindus have always treated the site as “sacred” and the birthplace of Lord Rama and held the place as Asthan Sri Ram Janmabhumi , and therefore a deity in itself, on which Sri Ram Lalla presided ( therefore Sri Ram Lalla “Virajman”) as an idol and being another deity. It was also contended that there was an existing temple which was broken to construct a Mosque and such was invalid since in Hindu Law once a deity (being the Asthan Sri Ram Janmabhumi in the present case ) always a deity as the Supreme Court itself has held in Mahant Ram Swarup vs. S.P. Sahi , that even if the idol is broken , or lost or stolen , the moment it is replaced by another idol and duly consecrated it takes the sanctity of the old. In addition after the due consecration of the idol of Ram Lalla ( the other deity) in accordance with Hindu rites, the rights of all parties if any stood extinguished as the right of the original deity stood revived.

It is important to clarify here that “deity” does not mean only an “idol” , which seems to be a broader misconception being held by the so called “secular” brigade. An idol is not a precondition for a “deity” to exist in Hindu theology and jurisprudence, the deity can in the words of the Supreme Court in Ram Janki Deity v. State of Bihar be shapeless, formless like Agni or Vayu , or even a simple piece of wood. The Supreme Court in the same case said that as long as the public feel there is a “divine presence” any place can be considered a temple.

The Court therefore considering the statements made in various plaints and written statements framed the following issues amongst various others on other points , which were to be decided finally by the Court:

(i) Issue No. 14:- Have the Hindus been worshipping the place in dispute as Sri Rama Janma Bhumi or Janam Asthan and have been visiting it as a sacred place of pilgrimage as of right since times immemorial? If so, its effect?

(ii) Issue No. 19(c):- Whether any portion of the property in suit was used as a place of worship by the Hindus immediately prior to the construction of the building in question? If the finding is in the affirmative, whether no Mosque could come into existence in view of the Islamic tenets, at the place in dispute?

Necessarily, in course of the proceedings it had to be proved that Hindus have always treated the site as “sacred” and as the birthplace of Lord Rama. The deities did not have to prove that Lord Rama was born there as the claims of the deities in the plaint was not that Lord Rama was born there and therefore it is sacred, but, that the deities' devotees “believed” that Lord Rama was born there and it is “ Rama Janmasthan” and therefore it is “sacred” to them and has always been treated as a deity.

The Courts have previously held that the way to prove the existence of a deity which is claimed to have been existent from time immemorial is through the fact that the deity was recognized to be one and a representative of the divine form by the people who treated it as part of the divine . The fact of the sanctity of the site was also proved by voluminous contemporaneous documentary evidence of the above mentioned Imperial Gazetteers and travelogues of foreign travelers and who were traveling in the area and who recorded Hindu worship in the site , even , after the Mosque was constructed and the ASI Report which showed that even previous to the supposed Mosque there was an existent Hindu temple. Interestingly this is the point where everyone is attempting to rely on to show that the decision was one based on “faith” and not on law , when such was clearly a question of evidence and for which evidence was lead by both parties to show whether the Hindus did consider the site sacred.

Historians appeared as expert witnesses from both sides to make the point. They were cross examined in detail . Documentary evidences were also produced and questions were put to the witnesses who were produced from both sides as experts on the point. Eminent historians who hold forth on the subject did not put themselves up as witnesses and therefore could not be examined about their views in Court.

Based on the said issues, evidence was lead -- that is documents were disclosed by all plaintiffs and defendants to the suit, and witnesses were produced by all the parties and cross examined by other parties to the proceedings. After the evidence had been disclosed, then arguments were commenced by the parties. This process nearly took nearly 16 years after the directions of the Supreme Court in the Ismael Faruqui Case and subsequent framing of issues by the Allahabad High Court. The great commentators of today were conspicuous by their absence during all this time.

Under the above circumstances it is apparent that the said conclusions directly arise out of the issues framed in the suit and are not a fanciful exploration of “faith” as is being attempted to be made out by the secular chorus. What requires repetition is that the present case being a civil suit and not a “Government Commission of Enquiry” or a “People’s Tribunal” had to be argued only based on the statements stated in the plaints and the written. It is a fundamental proposition of civil procedure that no party can go beyond the assertions in the plaints and written statements filed by the parties in court in the case and all evidence and arguments has to be restricted to proving the facts stated in the plaint and the written statements only. A plaint and a written statement is the basis of any case , and , they are of utmost importance, as facts stated in them cannot be changed later for better or for worse.

There has been strong criticism of the present judgment from various quarters, a lot of which is unfounded and superficial. It is important in our view that for the formulation of any criticism of the present judgment the principles of civil litigation be kept in mind, otherwise we would be in danger of fundamentally misunderstanding the principle foundation on which the present case was decided.

5 comments:

How do we know said...

completely agree.

Adithya said...

Most criticism of the judgement has emanated from 'Constitutional experts'. It is essential to point out that trial litigation is an entirely different ball game from academic interpretation of constitutional provisions. This comment puts things in the right perspective.

Talha Abdul Rahman said...

Rightly said that plaint and written statement form the foundation of a case, and given that it is not inquisitorial inquiry - unless there is a prayer in respective plaints to trifurcate the land, the Court cannot do so.

Rohit De said...

Bhupinder and Vikramjeet, I enjoyed the incisive comment. I ask, only because I haven't managed to plough through 8,000 pages yet, did they actually expert testimony from archeologists and historians which was subject to cross examination? From what I understand and what the media coverage suggests the ASI report that the court relied on is not available as a public document. Further, Shereen Ratnagar and D Mandal, two archeologists who wrote a public critical of the report were served by a contempt notice by the High Court.

Vidura said...

@ Rohit : Justice Agarwal's judgment is very clear on the above mentioned points and answers all the questions . It states the entire history of how the first GPR survey was initiated at the instance of the Muslim parties and because of some of Dhaneshwar Mandal's claims that the entire temple story would be exposed if there was excavation, which was then followed by a direction for excavation by ASI . It also narrates how after the discovery of the underlying structure the Waqf Board did not broadly disagree with the methodology but the interpretation of findings , and , how a parade of expert witnesses were called for examination and cross examination on the interpretation of the findings , and , how the court in the end , decided to take on board the Report subject to the evidence of the expert witnesses as to the interpretation . It also narrates the demands of Waqf Board to have equal representation of Muslims in the team as well as the labourers , and how that was agreed to by the court as well . I think that is why no one , not Justice Khan , not Justice Agarwal and not Justice Sharma , had any problem with the Report as such . Where they differed was in relation as to what was relevant for the present case. I am writing another article , but this is slightly long around 5000 wrods on the subject .....therefore cannot be published here ....we are looking for a publication which will publish it ..let see.. keeping our fingers crossed.