Decoding the Ayodhya Judgement- Part 1

The appeals that were filed to Supreme Court centre around a dispute between two religious communities both of whom claim ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya.

The Hindu community claimed it as the birth-place of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claimed it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur. The lands of our country have witnessed invasions and dissensions.

The Court was called upon to fulfil its adjudicatory function where it was claimed that two quests for the truth impinge on the freedoms of the other or violate the rule of law.

The Court was tasked with the resolution of a dispute whose origins were 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. Constitutional values form the cornerstone of this nation and have facilitated the lawful resolution of the present title dispute through forty-one days of hearings before the Court.

The dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989. Before the Allahabad High Court, voluminous evidence, both oral and documentary was led, resulting in three judgements running the course of 4304 pages. This judgement was placed in challenge in the appeals.

The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The site has religious significance for the devotees of Lord Ram, who believe that Lord Ram was born at the disputed site.

For this reason, the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.

1856-57

The disputed site has been a flash point of continued conflagration over decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity of the structure. The colonial government attempted to raise a buffer between the two communities to maintain law and order by setting up a grill-brick wall having a height of six or seven feet. This would divide the premises into two parts: the inner portion which would be used by the Muslim community and the outer portion or courtyard, which would be used by the Hindu community.

The outer courtyard has several structures of religious significance for the Hindus, such as the Sita Rasoi and a platform called the Ramchabutra.

1877

In 1877, another door was opened on the northern side of the outer courtyard by the colonial government, which was given to the Hindus to control and manage. The bifurcation, as the record shows, did not resolve the conflict and there were numerous attempts by one or other of the parties to exclude the other.

1885-1886

In January 1885, Mahant Raghubar Das, claiming to be the Mahant of Ram Janmasthan instituted a suit (Suit of 1885) before the Sub-Judge, Faizabad. The relief which he sought was permission to build a temple on the Ramchabutra situated in the outer courtyard, measuring seventeen feet by twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885, the trial judge dismissed the suit, noting that there was a possibility of riots breaking out between the two communities due to the proposed construction of a temple.

The trial judge, however, observed that there could be no question or doubt regarding the possession and ownership of the Hindus over the Chabutra. On 18 March 1886, the District Judge dismissed the appeal against the judgment of the Trial Court but struck off the observations relating to the ownership of Hindus of the Chabutra contained in the judgment of the Trial Court.

On 1 November 1886, the Judicial Commissioner of Oudh dismissed the second appeal, noting that the Mahant had failed to present evidence of title to establish ownership of the Chabutra.

1934

In 1934, there was yet another conflagration between the two communities. The domed structure of the mosque was damaged during the incident and was subsequently repaired at the cost of the colonial government.

1949

The controversy entered a new phase on the night intervening 22 and 23 December 1949, when the mosque was desecrated by a group of about fifty or sixty people who broke open its locks and placed idols of Lord Ram under the central dome.

A First Information Report was registered in relation to the incident. On 29 December 1949, the Additional City Magistrate, Faizabad-cum-Ayodhya issued a preliminary order under Section 145 of the Code of Criminal Procedure 1898, treating the situation to be of an emergent nature.

Simultaneously, an attachment order was issued and Priya Datt Ram, the Chairman of the Municipal Board of Faizabad was appointed as the receiver of the inner courtyard. On 5 January 1950, the receiver took charge of the inner courtyard and prepared an inventory of the attached properties.

The Magistrate passed a preliminary order upon recording a satisfaction that the dispute between the two communities over their claims to worship and proprietorship over the structure would likely lead to a breach of peace. The stakeholders were allowed to file their written statements. Under the Magistrate‘s order, only two or three pujaris were permitted to go inside the place where the idols were kept, to perform religious ceremonies like bhog and puja. Members of the general public were restricted from entering and were only allowed darshan from beyond the grill-brick wall.

The institution of the suits

First Suit

On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal Singh Visharad, before the Civil Judge at Faizabad, alleging that he was being prevented by officials of the government from entering the inner courtyard of the disputed site to offer worship. A declaration was sought to allow the plaintiff to offer prayers in accordance with the rites and tenets of his religion (Sanatan Dharm) at the main Janmabhumi, near the idols, within the inner courtyard, without hindrance.

On the same date, an ad-interim injunction was issued in the suit. On 19 January 1950, the injunction was modified to prevent the idols from being removed from the disputed site and from causing interference in the performance of puja.

On 3 March 1951, the Trial Court confirmed the ad-interim order, as modified. On 26 May 1955, the appeal against the interim order was dismissed by the High Court of Allahabad.

Second Suit

On 5 December 1950, another suit was instituted by Paramhans Ramchandra Das (Suit 2) before the Civil Judge, Faizabad seeking reliefs similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September 1990.

On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare a map of the disputed premises. On 25 June 1950, the Commissioner submitted a report, together with two site plans of the disputed premises which were numbered as Plan nos 1 and 2 to the Trial Court.

Third Suit

On 17 December 1959, Nirmohi Akhara instituted a suit through its Mahant (Suit 3) before the Civil Judge at Faizabad claiming that its absolute right of managing the affairs of the Janmasthan and the temple had been impacted by the Magistrate‘s order of attachment and by the appointment of a receiver under Section 145. A decree was sought to hand over the management and charge of the temple to the plaintiff in Suit 3.

Fourth Suit

On 18 December 1961, the Sunni Central Waqf Board and nine Muslim residents of Ayodhya filed a suit (Suit 4) before the Civil Judge at Faizabad seeking a declaration that the entire disputed site of the Babri Masjid was a public mosque and for the delivery of possession upon removal of the idols.

On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit 4 was made the leading case.

On 25 January 1986, an application was filed by one Umesh Chandra before the Trial Court for breaking open the locks placed on the grill-brick wall and for allowing the public to perform darshan within the inner courtyard.

On 1 February 1986, the District Judge issued directions to open the locks and to provide access to devotees for darshan inside the structure.

In a Writ Petition filed before the High Court challenging the above order, an interim order was passed on 3 February 1986 directing that until further orders, the nature of the property as it existed shall not be altered.

Fifth Suit

On 1 July 1989, a Suit (Suit 5) was brought before the Civil Judge, Faizabad by the deity (Bhagwan Shri Ram Virajman) and the birth-place (Asthan Shri Ram Janam Bhumi, Ayodhya), through a next friend for a declaration of title to the disputed premises and to restrain the defendants from interfering with or raising any objection to the construction of a temple. Suit 5 was tried with the other suits.

Transfer to High Court of Allahabad

On 10 July 1989, all suits were transferred to the High Court of Judicature at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief Justice of the High Court for the trial of the suits. On an application by the State of Uttar Pradesh, the High Court passed an interim order on 14 August 1989, directing the parties to maintain status quo with respect to the property in dispute.

During the pendency of the proceedings, the State of Uttar Pradesh acquired an area of 2.77 acres comprising of the disputed premises and certain adjoining areas. This was effected by notifications dated 7 October 1991 and 10 October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894.

The acquisition was for development and providing amenities to pilgrims in Ayodhya. A Writ Petition was filed before the High Court challenging the acquisition. By a judgment and order dated 11 December 1992, the acquisition was set aside.

6 December 1992

A substantial change took place in the position at the site on 6 December 1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A makeshift structure of a temple was constructed at the place under the erstwhile central dome. The idols were placed there.

Acquisition by the Central Government and Ismail Faruqui’s case

The Central Government acquired an area of about 68 acres, including the premises in dispute, by a legislation called the Acquisition of Certain Area at Ayodhya Act 1993.

Sections 3 and 4 envisaged the abatement of all suits which were pending before the High Court.

Simultaneously, the President of India made a reference to Supreme Court under Article 143 of the Constitution. The reference was on ―

“(w)hether 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…”

Writ petitions were filed before the High Court of Allahabad and Supreme Court challenging the validity of the Act of 1993. All the petitions and the reference by the President were heard together and decided by a judgment dated 24 October 1994.

The decision of a Constitution Bench of Supreme Court, titled Dr M Ismail Faruqui v Union of India[1] held Section 4(3), which provided for the abatement of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be valid. The Constitution Bench declined to answer the Presidential reference and, as a result, all pending suits and proceedings in relation to the disputed premises stood revived. The Central Government was appointed as a statutory receiver for the maintenance of status quo and to hand over the disputed area in terms of the adjudication to be made in the suits.

The proceedings before the High Court

The recording of oral evidence before the High Court commenced on 24 July 1996. During the course of the hearings, the High Court issued directions on 23 October 2002 to the Archaeological Survey of India to carry out a scientific investigation and have the disputed site surveyed by Ground Penetrating Technology or Geo-Radiology (GPR). The GPR report dated 17 February 2003 indicated a variety of anomalies which could be associated with ―ancient and contemporaneous structures‖ such as pillars, foundations, wall slabs and flooring extending over a large portion of the disputed site.

In order to facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to undertake the excavation of the disputed site. A fourteen-member team was constituted, and a site plan was prepared indicating the number of trenches to be laid out and excavated. On 22 August 2003, the ASI submitted its final report. The High Court heard objections to the report.

Evidence, both oral and documentary, was recorded before the High Court. As one of the judges, Justice Sudhir Agarwal noted, the High Court had before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages. Besides this, counsel relied on over a thousand reference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as diverse as history, culture, archaeology and religion. The High Court ensured that the innumerable archaeological artefacts were kept in the record room. It received dozens of CDs and other records which the three judges of the High Court have marshalled.

The decision of the High Court

On 30 September 2010, the Full Bench of the High Court comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the judgment.

JUSTICE S U KHAN and Justice Sudhir Agarwal held ―all the three sets of parties‖ – Muslims, Hindus and Nirmohi Akhara – as joint holders of the disputed premises and allotted a one third share to each of them in a preliminary decree.

JUSTICE SUDHIR AGARWAL partly decreed Suits 1 and 5. Suits 3 and 4 were dismissed as being barred by limitation. The learned judge concluded with the following directions:

“4566… (i) It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus, belong to plaintiffs (Suit-5).

(ii) The area within the inner courtyard belong to members of both the communities, i.e., Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries.

(iii) The area covered by the structures, namely, Ram Chabutra, Sita Rasoi and Bhandar in the outer courtyard is declared in the share of Nirmohi Akhara and they shall be entitled to possession thereof in the absence of any person with better title.

(iv) The open area within the outer courtyard (except that covered by (iii) above) shall be shared by Nirmohi Akhara and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places.

(iv-a) It is however made clear that the share of Muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard.

(v) The land which is available with the Government of India acquired under Ayodhya Act 1993 for providing it to the parties who are successful in the suit for better enjoyment of the property shall be made available to the above concerned parties in such manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry for egress and ingress of the people without disturbing each other’s rights.”

JUSTICE D V SHARMA decreed Suit 5 in its entirety. Suits 3 and 4 were dismissed as being barred by limitation. Justice D V Sharma concluded:

“Plaintiff‘s suit is decreed but with easy costs. It is hereby declared that the entire premises of Sri Ram Janm Bhumi at Ayodhya belong to the plaintiff Nos. 1 and 2, the deities. The defendants are permanently restrained from interfering with, or raising any objection to, or placing any obstruction in the construction of the temple at Ram Janm Bhumi Ayodhya at the site, referred to in the plaint.”

The parties preferred multiple Civil Appeals and Special Leave Petitions before Supreme Court against the judgment of the High Court.

Proceedings before Supreme Court

• On 9 May 2011, a two judge Bench of Supreme Court admitted several appeals and stayed the operation of the judgment and decree of the Allahabad High Court. During the pendency of the appeals, parties were directed to maintain status quo with respect to the disputed premises in accordance with the directions issued in Ismail Faruqui.

• On 10 August 2015, a three judge Bench of the Court allowed the Commissioner, Faizabad Division to replace the old and worn out tarpaulin sheets over the makeshift structure under which the idols were placed with new sheets of the same size and quality.

• On 5 December 2017, a three judge Bench of the Court rejected the plea that the appeals against the impugned judgement be referred to a larger Bench in view of certain observations of the Constitution Bench in Ismail Faruqui.

• On 14 March 2018, a three judge Bench heard arguments on whether the judgment in Ismail Faruqui required reconsideration.

• On 27 September 2018, the three judge Bench of the Court by a majority of 2:1 declined to refer the judgment in Ismail Faruqui for reconsideration and listed the appeals against the impugned judgement for hearing.

• By an administrative order dated 8 January 2019 made pursuant to the provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief Justice of India constituted a five judge Bench to hear the appeals.

• On 26 February 2019, the Court referred the parties to a Court appointed and monitored mediation to explore the possibility of bringing about a permanent solution to the issues raised in the appeals.

• On 8 March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed Ibrahim Kalifulla, a former Judge of Supreme Court; (ii) Sri Sri Ravi Shankar; and (iii) Mr Sriram Panchu, Senior Advocate was constituted. Time granted to the mediators to complete the mediation proceedings was extended on 10 May 2019.

• Since no settlement had been reached, on 2 August 2019, the hearing of the appeals was directed to commence from 6 August 2019. During the course of hearing, a report was submitted by the panel of mediators that some of the parties desired to settle the dispute. The Court by its order dated 18 September 2019 observed that while the hearings will proceed, if any parties desired to settle the dispute, it was open for them to move the mediators and place a settlement, if it was arrived at, before this Court.

• Final arguments were concluded in the batch of appeals on 16 October 2019. On the same day, the mediation panel submitted a report stating that a settlement had been arrived at by some of the parties to the present dispute. The settlement was signed by Mr Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board. Though under the settlement, the Sunni Central Waqf Board agreed to relinquish all its rights, interests and claims over the disputed land, this was subject to the fulfilment of certain conditions stipulated.

• The settlement agreement received by the Court from the mediation panel was not agreed to or signed by all the parties to the present dispute. Moreover, it was only conditional on certain stipulations being fulfilled. Hence, the settlement cannot be treated to be a binding or concluded agreement between the parties to the dispute.

Reference

Excerpt from the Judgment ‘M Siddiq (D) Lrs v. Mahant Suresh Das & Ors. (2019)

[1] 1994) 6 SCC 360