Babri Masjid before its demolition. It was still a mosque in 1992 when Hindutva mobs demolished it, and namaz was offered there until 1949 when under growing pressure from Hindutva forces, it was locked and made out of bounds for the public. However, Hindu puja was permitted there once a year.
This is an analysis of the Allahabad High Court judgement of September 2010, on the BabriMasjid /Ayodhya issue. The final judgment ruled that the disputed land would be divided into three parts, one third going to the Hindu Maha Sabha which represented Ram Lalla, one third to Sunni Waqf Board and the rest to Nirmohi Akhada including Ram Chabutara and Sitaki Rasoi.
This essay was written at the time, and published in Economic and Political Weekly. Two of the key issues of this case arose in two of the recent judgments of the Supreme Court on other matters.
One, the status of ‘Next Friend’, which is central to the Ayodhya case, was brought up in the judgement on the Bhima- Koregaon Five. Regarding the PIL filed by historian Romila Thapar and four other eminent persons challenging the alleged-unlawful arrest of these five activists, the court assumed that the writ petition has now been pursued by the accused themselves and was of the opinion that the petition, at the instance of the next friend of the accused for an independent probe or a court-monitored investigation cannot be countenanced, much less as a PIL as the petitioners cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves.
Two, the status of the deity as a person in law came up centrally in the judgement on Sabarimala.
Apologies for posting this long piece, which is not a blog post but an analytical essay closely examining the 2010 judgement by Allahabad High Court. I have not updated it in any way, as that is the judgement that currently stands. The case is currently in the Supreme Court.
The Ayodhya judgement: what next?
Published in Economic and Political Weekly July 30 – August 05, 2011
Since the Allahabad High Court judgement on the Ayodhya dispute was delivered on September 30, 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 judgement, 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 picture of the problems with the judgement, currently under appeal in the Supreme Court. And to ask, what are its weakest links?
I will start with the barely disguised partiality in the judgement towards a particular political project that claims to represent all Hindus; a partiality that has been generally glossed as the recognition of ‘faith.’ Both critics and supporters of the judgement seem to be agreed that ‘faith’ has been given recognition by this judgement. It is with this question therefore, that I begin.
Faith over facts?
Does the Ayodhya judgement of the Allahabad High Court privilege ‘faith’ over ‘facts’? The BJP’s position on this is interestingly ambiguous.
On the one hand, the BJP’s chief spokesperson Ravi Shankar Prasad refuted CPI(M)’s claim that the judgement 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’; while on the other hand, LK Advani celebrated the judgement explicitly as ‘faith upheld by law’.
This apparent contradiction however, was precisely at the heart of the Hindu Right’s strategy in court, as outlined in an article in Tehelka 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 judgement 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 on to state that religious belief was one of the key elements in the case, and in dealing with it, the judgement 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’ (2010: 17). It is this test of validly held belief, claim Yadav and Banerjee, that the Ayodhya judgement 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 historically believed that the disputed site is Ram Janmabhoomi. Which they did’ (2010:17)
Yadav and Banerjee thus assert the judgement 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 handing 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 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 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 structure was a mosque) fails the tests set by Islamic jurisprudence, while ‘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 focused on the question of whether it is a ‘validly held belief’. The fact that Muslims offered prayers there until stopped by court order in 1949 should establish this fact without a doubt. Even the ‘Hindu’ parties’ claim regarding this point concedes that Muslims worshipped at the mosque till 1934, when it was substantially 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 ‘disputed 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 parties’ 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.
On this point, Justice Khan held that none of these features are essential for a mosque, 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.
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 the Hindus being based on Hindus ‘always regarding 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 judgement, Sharma and Agarwal trump Muslim law (as they interpret it) with Hindu law. What is the justification given for this? The simple answer is – none.
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 judgement – the demolished Babri Masjid. What is the view of the judgement 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 maintainable? (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 judgement. 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 judgement 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.’
As many commentators have pointed out, does not the division of the property through the judgement assume the demolition, for the RJN has been given the land on which the Babri Masjid once stood. If the mosque had not been demolished, is not this judgement 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 demolished temple. Teltumbde points out that many of these issues of ‘history’ had already been settled in law by a five-judge 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 reference was to the following effect:
‘Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janam Bhoomi and Babari Masjid (including the premises of the inner and outer courtyards on such structure) in the area on which the structure stands or not?’
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 documentary proof on all sides, could have been resolved by established law that grants the property to the one who has had uninterrupted 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 C. The act that placed idols under the dome was an act of criminal trespass, and so the claim by Ram Lalla’s Next Friend should have had no legal status (Teltumbde 2010: 12).
As Warisha Farasat puts it, ‘if you don’t 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 A.D. 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 A.D. to 22nd 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 five hundred 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.)
Justice Khan too cited this judgement, Para-8, 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.’
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 attention to the gradual amplification of the claim to the site.  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 purported representative of ‘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 judgement, 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 Chabootra as the birth-place 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 protocols of the historian, but the space they can legitimately occupy in a field which pits history against faith.’
In other words, I understand the question they pose as the following: whether the historical method can be used to apply closure in a field pre-defined 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 multiple 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.
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’.
Unravelling the three voices in the judgement
It is well known that the judgment is not one but three. The question however is, what are the faultlines of the disagreements between them? An obvious one is that between Justice Sharma on the one hand with his dissenting decision awarding the entire property to one party, the Ram Janmabhumi Nyas; and Justices Khan and Agarwal on the other who divide it equally between RJN, the Sunni Waqf Board and the Nirmohi Akhara. Other commentators have noted the similarities between Sharma and Agarwal on their reading of history 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 judgements rather than the decision, and in this case, the judgements of Agarwal and Sharma are on one side and that of Khan on the other. Many commentators have in fact read Justice Khan’s judgement separately, but I suggest that we need to go further – taking it seriously should make us see the whole judgement in a different light. In this section I will look at the judgements of Sharma and Agarwal, and return to Khan’s judgement in conclusion.
On a careful reading, it seems quite clear that the reasoning in all three judgements is an exercise in justifying in retrospect a preferred conclusion, decided upon in advance for extra-legal reasons. The legal and historical reasons are clearly adduced after the conclusion has been reached – a chronicle of a judgement 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 principles 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 sentences, 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 Sunni Waqf Board 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.
- b) Regarding possession, Agarwal said that while ‘Muslims’ lost possession of the outer courtyard from 1856/1857 onwards, the inner courtyard was used by both Hindus and Muslims, since the former prayed there as well. So while Muslims do not have exclusive rights of possession of the inner space, Hindus do have exclusive rights of possession to the outer courtyard. This point about Hindus worshipping in the outer courtyard is read by Justice Khan very differently, as a ‘very very unique and absolutely unprecedented situation’, implying, it seemed to me, the hopeful possibilities of people of different faiths living together, rather than merely as indicating ‘possession’ or lack of it. We will return to Khan’s reading later.
- c) Regarding adverse possession by Muslim parties, Sharma defined 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 remedial action within a prescribed time (that is, the statue of limitations applies here).
He then made the following arguments rejecting this claim:
- i) 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).
- ii) They do not claim the property through title but through possession
iii) However, the defendants (the Hindus) claim the property was never in exclusive use by the Muslims
- iv) 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.
- v) The property in fact belongs to Dashrath who was sovereign 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 dispossessing’ (sic).
‘Thus’ concludes Sharma, the Muslim parties have failed to prove adverse possession.
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 Babur’s title deed is crucial, Dashrath’s ownership of Ayodhya is not thus limited. Babur’s assumed demolition of a temple is characterized 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 Hindu claims, they can prove adverse possession, says Sharma, because since 1934, Hindus claim, Muslims were not allowed to enter the mosque. It has thus been adversely 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 judgement 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 Ramjanmabhoomi makes the site itself a deity and its religious 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 practiced for the last thousands of years…’ 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 institution held to be sacred.’
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 re-develop 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.
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. That is, Babur’s assumed demolition of a pre-existing 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 outsider’s 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 judgements is that the ‘Hindu’ claims are justified. Sharma hands over the entire property to them, but Agarwal’s reasoning too, in dividing the property, is essentially de-recognizing the SWB’s 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 Section 110 of the Evidence Act (which the judgement 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.
Appropriation of Next Friend status
The key figure in the judgements 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 judgement 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 judgement. 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 person…Most importantly, under the substantive law of contract, a minor cannot contract; an idol may. Adjectival law (limitation) exempts 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 limitations 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. ‘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. 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 judgement 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.’ Since the KEM staff desired to keep Shanbaug alive, the Court declined Virani’s 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 judgement is relevant here is that it illustrates that the Next Friend status has to be established, and can be contested in court.
But how was the critical figure of Next Friend appointed in the Ayodhya case? How, as Rohit De puts it, was ‘Ram Lalla kidnapped’ 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 Court’s Lucknow bench seeking his own appointment as Ram Lalla’s 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 Lalla’s ‘Next Friend’ throughout his life. After his death in 2002, TP 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 ill health and age. Triloki Nath Pandey then took charge as Ram sakha in early 2010. Pandey’s association with Ram Lalla began in 1974 when he became an RSS pracharak.
The link between the Vishwa Hindu Parishad 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 Ram Janmabhoomi Nyas 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 High Court judgement, Nritya Gopal Das, president of the RJN, staked the RJN’s 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 appropriated 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 long-term 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 judgement suddenly made it visible. Nirmohi Akhara is a religious denomination following 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 VHP-dominated 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 atmosphere of country. It is responsible for whatever has happened in its so called Ram temple movement’ (Khan 2011).
Nirmohi Akhara 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 sub-judge held then that two large religious structures in close proximity could potentially be a threat to public order. Permission was denied by the court, though the Nirmohi Akhara has since kept up its effort to construct the temple. Bhaskar Das, the Mahant of Nirmohi Akhara, 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 alongside, is a clear indication that while the appropriation of the status of spokesperson of 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 Nirvani Akhara, says his sect and the Nirmohi Akhara will have to build the temple together (Bhattacharya 2010)
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 intervened 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.
‘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); the fact that for large numbers of practicing 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; are all matters that can be established in court, challenging the idea that ‘everyone accepts that Ram is integral to Hinduism’.
Soon after the judgement, some commentators applauded it for recognizing that ‘the social world of our subcontinent is deeply formed by its religio-sacred 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 human 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 judgement had accommodated ‘faith’. But as I hope to have demonstrated, only one ‘faith’, indeed, one particular voice in Hinduism, is legitimized in the judgement; and of course, the ‘religio-sacred inheritance’ of Muslims is not considered worthy of recognition at all. Mani further suggests that the judgement vindicates
‘the grounds that already exist for forging a common struggle against authoritarian religion…The very thing that secularism is unable to notice: the open-ended, intimate, dialogic and, at heart, individual relationship 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 judgement, the project that demolished the Babri Masjid and seeks the building of a temple at that very spot – mandir vahinbanayenge. Mani’s ‘intimate dialogic’ relationship with one’s 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 judgement encourages ‘Ayodhya to settle its problems locally…[It] recognizes 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 judgement does nothing of the sort. I doubt that Nandy had read any part of the judgement at the time, at any rate there is not one concrete reference to the judgement in his entire article. Mani cites Justice Khan’s Epilogue, but we will return to Khan’s judgement in conclusion, and I suggest that a serious reading of his judgement would in fact undermine the majority decision.
This conflation of ‘faith’, ‘religio-sacred 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 characterization of Hindu practices (and sometimes of Hindutva the political project) as non-religious, cultural, and generally ‘Indian’, as a Supreme Court judgement on Bal Thackeray’s politics did in 1995, terming Hindutva as ‘way of life’ and as ‘Indianization’ (Menon 1998: PE6).
A more recent example of this strategy has been drawn to our attention by Arun Thiruvengadam. A judgement of a division bench of the Gujarat High Court recently dismissed with exemplary costs of Rs 20,000, a PIL filed by a Dalit activist challenging the performance of Hindu religious functions 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 institution would ‘shake the confidence of the people who do not believe 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 construction 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 ‘non-secular activity’. The real object and purpose of the prayers was the successful construction of the building and ‘not for flourishment of any religion.’
As Thiruvengadam comments: ‘The Times of India report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s 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 ‘anti-God’ to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally’ (2010).
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 insistence of the Hindu Right that Vande Mataram be sung by Muslims. The song supposedly merely shows veneration to one’s 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 recognized 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 judgement and the Gujarat High Court judgement are thus similar in flouting, through different strategies, the basic principle of Indian secularism – sarva dharma sama bhava
Summary of flaws in judgement
Before we move in conclusion to Justice Khan’s judgement then, the following points discussed so far may be noted:
- a) The status of the idol as juristic person and as minor have been conflated, permitting the argument that since Ram Lalla is a minor, the statute of limitations on contesting adverse possession does not apply. This means that 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 limitations, 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 judgement of the Supreme 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.
- 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 specific parties to the title brings into the ambit of the judgement 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 consistently 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 consistently privileged.
Justice Khan – findings in conflict with decision
Coming now to Justice Khan’s judgement, the summary of his findings is in direct contradiction to those of the other judges.
He finds (in sum) that
– 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 birth place 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 birth place of Lord Ram or a place wherein exact birth place 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 absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.
– That in the early hours of 23.12.1949, idols were placed beneath the central dome of the mosque.
That is, he disagrees with both Sharma and often with Agarwal 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 miraculously 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 decision in the light of the Epilogue in which he sets out his reasoning. ‘My judgement is short, very short’, he concedes, but ‘Sometimes patience is intense action, silence is speech and pauses are punches.’ What is it that he wants us to hear in his silences?
He recognizes that this judgment is not finally deciding the matter and that ‘the most crucial stage is to come after it’. Keeping this in mind, he offers a reminder to ‘both the warring factions’ – to the Hindus, of the quality of tyag (sacrifice) that characterized Ram; and to the Muslims, of Mohammad’s 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 judgement 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 reference to the Hindu Right’s 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 tongue-in-cheek aside), he reminds us: ‘Only those species survived which collaborated and improvised.’
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 make-shift temple stands, it is clear that the decision does not follow from his findings as outlined above.
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 intangible, ‘a patience that is intense action’- the continued existence and survival of India as a plural society. What Justice Khan privileges is a form of ethical reasoning that is widely accepted as being part of law. Seen from this perspective, the majority decision (including Khan’s voice in it) in fact violates the widely accepted common law principle that no-one should benefit from his own wrong-doing. If one murders a person to inherit his wealth, then one should not be eligible to inherit it. The land-mark judgement on this question is by the state of New York in 1889 in Riggs v. Palmer.
The majority decision was that over and above ordinary law, there were ‘fundamental maxims of the common law’, according to which, ‘No one shall be permitted to profit by his own fraud, or to take advantage 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 civilized countries, and have nowhere been superseded by statutes.’ 
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 component of law (1967: 23-24). Let us remind ourselves that in the Ayodhya case, the court framed Issue 25 and 26 in the following manner: 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 maintainable? (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 should be clear that this very manner of framing the issues violates a basic principle of legal ethics, permitting the criminal to take advantage of his own wrong-doing.
Lata Mani sees the judgement 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 judgement 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 Khan’s decision can be a legally sound basis for arriving at a decision, then Ashis Nandy’s claim is vindicated that ‘The aim of a judgement 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 ethical frames of ordinary citizens, presuming that the latter includes all citizens of India. However, if Nandy’s claim can be read as a blueprint of what a judgement, especially a judgement on Ayodhya, ought to do, I am in agreement with him.
Justice Khan’s Epilogue brings in ethics in an extraordinary fashion into the law. His argument is fully one half of the two 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 Khan’s objectives in view. That is, rather than treating the issue either as a straightforward property dispute (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 , the Supreme Court could address the issue as one involving the future of plural faiths, India’s 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 Nirmohi Akhara (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 resolution in which the Muslims of Ayodhya will have a say.
If Justice Khan’s judgement has legal standing, then its reasoning is as important as his solution. This same reasoning can be used by the Supreme Court to arrive at a decision that is more just and inclusive. The parties to the property dispute are three specific groups, but they are continuously referred to by all three judges 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 wide-ranging discussions be conducted nation-wide – 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.
Benhabib, Seyla (1986) ‘The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory’ Praxis International 5:4 January
Bhattacharya, Debaashish (2010) ‘God of small things’ The Telegraph November 7
Biswajeet Banerjee (2010) ‘Muslim pleaded for Nirmohi Akhara in 1959’ The Pioneer October 1
Dworkin, Ronald M (1967) ‘The Model of Rules’ The University of Chicago Law Review, Vol. 35, No. 1. (Autumn), pp. 14-46
Farasat, Warisha (2010) ‘Ayodhya Verdict: Does it Provide Closure?’
Gupta, Anupam (2010) ‘Dissecting the Ayodhya Judgement’ EPW December 11
Khan, Arshad Afzal (2011) ‘Nirmohi Akhara severs ties with VHP’, Times of IndiaApril 16
Mani, Lata (2010) ‘Where angels Fear to tread: the Ayodhya Verdict’ EPW Ocotber 16
Menon, Nivedita (1998) ‘State/gender/Community: Citizenship in Contemporary India’ EPW January 31.
Nandy, Ashis (2010) ‘The judges have been injudicious enough to create a space for compassion and human sentiments’ Tehelka Novemeber 6
Patel, Gautam (2010) ‘Idols in Law’ EPW December 11
Teltumbde, Anand (2010) ‘Whither the faith of Indians, your lordhsips?’ EPW November 13-19
Thiruvengadam, Arun (2011) ‘Gujarat High Court’s stimulating interpretation of the demands of Indian secularism’
Vyas, Neena (2010) ‘RSS, VHP welcome court decision’ The Hindu September 18
Yadav, Bhupender and Vikramjit Banerjee (2010) ‘Courts can’t judge the rationality of faith’, Tehelka October 30
 Extensive summaries of the voluminous judgement prepared by Biswajit Roy (‘Reading the Ayodhya judgement’ Part I https://kafila.online/2010/10/09/reading-the-ayodhya-judgement-biswajit-roy/and Part II https://kafila.online/2010/10/15/reading-ayodhya-judgement-ii-biswajit-roy/) and by Aparna Chandra (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1690803 ) are invaluable resources. The full judgement is available at http://rjbm.nic.in/
 ‘Faith upheld by law, says Advani’ The Asian Age October 4, 2010
 The use of the terms Hindu and Muslim parties for the RJN, NA and SWB in the judgement, is noteworthy and we will return to it in conclusion.
 Justice Sharma pp 112-113, Vol 1, OS No. 4/1989
 Summary of judgement by Aparna Chandra op cit P. 11
 Justice Agarwal, P 3315
 Justice Sharma P 290-291, Vol 2, OS No 4/1989
 Epilogue to Justice Khan’s judgement
 Presentation at seminar on Ayodhya at Centre for Historical Studies, JNU, January 2011
 Justice Sharma P 236-7, Vol 3 OS No 4/1989
 Justice Agarwal P 3962
 Gist of findings Justice Khan’s judgement Point 7, P 282
 Justice Sharma P 87 Vol 3, OS No 4/1989
 Justice Sharma P 121, Vol 4, O.S. No. 4/1989
 Justice Sharma, P 144, Vol 4, OS No 4/1989
 Justice Agarwal, Pp 2594-2595
 Panel discussion ‘The Ayodhya verdict: Fact vs Faith’ organized by a student group, Anveshan, in October 2010
 Presentation at LASSNET conference, Pune, December 2010
 Supreme Court judgement on Aruna Shanbaug euthanasia petition, Para 126 (i)
 It should be clear that I am not here going into the substance of the judgement that has crucial implications for the Right to Life. Two recent articles in EPW have raised this debate – by Rakesh Shukla and Sushila Rao in EPW April 30, 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.
 See accounts of Ravana worship in Karnataka, Madhya Pradesh and Jodhpur in Hindu Blog:
‘Ravan is worshipped at Khonpura Village in Madhya Pradesh’
‘Ravana Worshipped in Kolar District of Karnataka”
‘Ravana descendants planning to instal idol’
 For example, there are only 3 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 adjudicating between such long-standing claims is evident when we consider the claim of Buddhists to a history in Ayodhya going back to the 7th century BCE. Press release from the All India Confederation of SC/ST Organisations after the Ayodhya judgement.
 Epilogue to Justice Khan’s judgement http://rjbm.nic.in/suk/O.O.S.%20Nos.1,3,4%20&%205%20of%201989.pdf
 It is 285 pages to Sharma’s 5019 and Agarwal’s 560 pages.
 In an intervention very soon after the judgement I had likened it to a decision of the village panchayat to marry the raped woman to her rapist, in order to secure peace. ‘The Second Demolition’ at https://kafila.online/2010/10/02/the-second-demolition-ayodhya-judgement-september-30-2010/
(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.online (‘The Second Demolition’) and a short presentation in a panel discussion ‘The Ayodhya verdict: Fact Vs Faith’ organized by a student group, Anveshan, in October 2010. Thanks also to Rohit De and Tarunabh Khaitan for helping me think through a previous draft.)