By S. Gurumurthy
expressbuzz.com
First Published: 02 Oct 2010 11:52:00 PM IST
Last Updated: 02 Oct 2010 01:07:54 AM IST
"My judgment is short, very short", writes a relieved and happy
Justice S U Khan who delivered the Ayodhya judgment along with
Justice S Agarwal and Justice D V Sharma. But that "short, very
short" judgment itself runs to 285 pages. The order of Justice S
Agarwal, with annexes, runs to over, believe it, 5,200 pages; that of
Justice D V Sharma tops over 1,700 pages including annexes. It means
this: to get a basic idea of the Ayodhya judgment one has to wade
through some 8,000 pages. This may well enter the Guinness book as
the longest judgment ever written! But what the visual media and
participants in debates had in their hands when they enlightened the
nation for almost four hours on the judgment was a one-page summary
of Justice Khan's order; a two-page summary of Justice Sharma's, and
a 12-page summary of Justice Agarwal's. Yet, in a couple of hours
they settled the national opinion on the long judgment of 8,000
pages!
The "quality" of their discourse was self-evident, even self-serving.
The visual media continuously ran headlines like "no temple was
demolished to build mosque", when the majority finding on the issue,
by Justices Agarwal (p5083) and Sharma (p28-104 in Waqf Board Suit)
was that the mosque "had been constructed on the site of Hindu temple
after demolishing the same"; the judges had found that the Hindus had
for long worshipped the place where the mosque stood as Ram Janma
Bhoomi (Sharma p172 Hindu Suit and Agarwal p5085). Most media
projected Justice Sharma's views as minority view. Actually it is
Justice Khan's that turns out to be that way, except on the division
of the disputed area where Justice Agarwal partly agrees with him.
But on the issue of the broken temple predating the mosque and on the
belief of the Hindus about the birthplace of Ram, Justice Agarwal and
Justice Sharma constitute a majority. Even Justice Khan does not deny
the existence of the broken temple but says the mosque was built on
temple ruins.
Again, the media did not highlight that the two judges have dismissed
the suits of the Sunni Waqf Board and the Nirmohi Akhara (believed to
be the proxy for the Congress party), and also that the two judges
have decreed only the two suits filed by the Hindu parties. The
consequence of this is immense, as will be unveiled in the next part
of this article.
The opinion about the Ayodhya judgment has been sealed by the
television discourse very much like it happens in the case of budget
papers. The discourse was less about the judgment and more about
politics like whether the court was right on deciding religious
issues such as whether it was Ram Janmasthan or there was a temple
under the mosque. The media also wailed about why the nation should
be wasting time on the temple issue when developmental issues are
crying for attention. Each of these comments is valid in itself; but
they are no substitute for a rigorous analysis of the verdict. Almost
all commentators recalled the 1992 demolition, but did not say that
Justice Agarwal (page 586) had concluded that that did not affect the
rights of the Muslims in their suit. Thus the millions who witnessed
TV channels did not get the right idea about the judgment.
And most of those who commented on the judgment were elated by how
the court had showed great "statesmanship" in giving a third of the
disputed place to Muslims. They also gloated over how that gesture
could promote secularism in India. But they did not stop a minute to
ask (unlike legal experts Rajeev Dhawan, regarded as a secular icon,
and P P Rao did) how, after saying that the Muslims and Nirmohi
Akhara had no right to sue, the two judges could give any share of
the property to them.
Political parties need votes; so they would speak only with that in
view. But should these experts and intellectuals not call a spade a
spade? Also point out what the court has actually found as facts?
They didn't. Therefore, the start of a national discourse on such a
critical legal issue, with huge political and communal implications,
could not have been shallower. For the last 20 years all political
parties and secular intellectuals had told those who were for the Ram
temple and those against to wait for the judicial verdict for
resolving the dispute.
There were four suits in all before the judges -- two by Hindu
parties; one by Muslims (Sunni Waqf Board), and the fourth, widely
believed to be the proxy of the Congress (Nirmohi Akhara). Some 121
issues were framed in the suits -- like whether the mosque was
constructed on a temple demolished or in ruins; whether the Hindus
had a long held belief that the disputed place was the birthplace of
Ram; whether the four suits were within the period of limitation set
by law; whether and how long the Hindus were worshipping at the
disputed place; whether the Muslims were also worshipping in that
place and from when to when; who owns the disputed land, the Waqf,
Nirmohi Akhara, or the deity Ram. While the Hindus' suit had claimed
the Janmasthan as exclusively that of the deity Ram, the Sunni Waqf
Board suit had claimed it as exclusively its own, the Nirmohi Akhara
suit had claimed it again as its exclusive property. In law, this
mutually exclusive claim of the three contenders meant that, if the
suit of any one was allowed that would destroy the suit of the other
two. This was how the cases, three of which were filed in 1989, the
first one by the Hindus having been filed in 1950, began -- with the
parties letting in oral and documentary evidence first and then
arguing the case later.
The principal issue in the case was: whether the disputed place
belonged to the deity Ram, or the mosque or the Nirmohi Akhara. The
critical fact to be found was whether a Hindu temple predating the
disputed mosque existed. To unravel that the Allahabad High Court had
directed the Archeological Survey of India to find out "whether there
was any temple/structure which was demolished and mosque constructed
on the disputed site" first by Ground Penetrating Radar (GRP) survey
and, thereafter, by excavation. The ASI conducted the GRP survey and
submitted a report in February 2003; after that it excavated the
disputed area and submitted a further report of 574 pages. What was
ASI's answer to the all-important question of temple under the
mosque? How have the three judges have decided the cases? What are
the legal, political implications of the decision? A clinical
dissection will reveal whether the verdict solves the dispute, or
escalates it. Await the next part.
This is the second of a three-part series on the Ayodhya judgment
The best part of the Ayodhya verdict is the judgment of Justice
Sudhir Agarwal. Though a huge affair running to over 5,200 pages, his
is one of the most organised and best-written judgments. One has only
to look at the index he has provided (at p5136-5218) in Volume 21 of
the judgment to get to what one wants -- whether it is to know what
the decision was on any of the issues, or to search for any
documentary evidence or oral testimony used or any case law
considered. Any reasonably skilled reader of legal documents may use
the index as the key to unravel the judgment in a couple of days,
which might otherwise take a fortnight.
That explains how articles like this appear in such a short time. It
must have taken Justice Agarwal long periods of stress and labour to
produce such a wonderful judicial document. More, to maintain
confidentiality he must have done lots of the work himself. Also for
writing the main judgment, he has analysed minutely all the evidence,
documentary, oral and technical, himself; so that the other judgments
just supplement his where there is agreement. But for his huge
effort, it would be extremely difficult to unravel the Ayodhya
verdict. If Justice Khan could write his "very short" judgment it is
thanks to Justice Agarwal writing a very long one.
The Ayodhya verdict is not just a legal affair. It discusses,
frankly, but with sensitivity, the Hindu-Muslim interface based on
historic facts. It also touches upon history, archeology, sociology,
religion and related disciplines. A reading of the verdict will
reveal its reach and depth. So the nation must be grateful to the
judges, particularly Justice Agarwal, for a stupendous work.
The criticality of Justice Agarwal's judgment, in the overall Ayodhya
verdict, is manifest in that, virtually what he has said has turned
out to be the final verdict. This is because, with Justice Sharma and
Justice Khan taking almost divergent positions, to the extent Justice
Agarwal agreed with either of them on any issue his views became the
final view on that issue. Just see the effect of his view on the most
sensitive issue in the Ayodhya case, namely, was a preexisting Hindu
temple destroyed to make way for the mosque?
Even though he agrees that a massive broken Hindu structure was found
under the mosque, Justice Khan does not agree that any Hindu
structure was demolished to build the disputed mosque. But Justice
Sharma is firm that a Hindu temple was indeed demolished to build the
mosque. Justice Agarwal analyses the evidence over some 900 pages
(from 3513 to 4415) and after holding that a Hindu temple predated
the mosque at the spot, he says, on evidence, that "it can safely be
said that the erstwhile structure was a Hindu temple and it was
demolished, whereafter the disputed structure was raised" (p4415).
This makes it the Court's view. But, having held that a Hindu temple
existed before the mosque was constructed, Justice Agarwal was not
keen to pursue the demolition issue. But he does. Why? Read on.
He was compelled to do so by the lies of the experts relied upon by
the Muslim parties. Prefacing that, for the purposes of the case, it
was "sufficient" to stop at finding "that the mosque had been raised"
on a pre-existing "massive temple", Justice Agarwal writes [at
p4333], "it would not have been necessary to tell positively that
there existed a massive temple structure, which was demolished and
thereafter the disputed structure was raised".
He then explains why he did that thus: the statement of so many
experts appearing on behalf of the plaintiffs (Sunni Waqf Board)
asserting that "temples in past were never demolished by then Muslim
rulers or invaders from Persia etc, is so blatant a lie" that he was
"reluctant to ignore it without referring to some well-known
historical" account of the demolition of Hindu temples, some "written
by Muslim writers themselves."
Only after that, considering (from p4333 to p4415) the massive
evidence about destroying temples, including at Ayodhya, Justice
Agarwal concluded that a Hindu temple was indeed destroyed to build
the mosque. Yet the visual media kept insisting throughout Sept 30
that the Court had indeed held that "no temple was destroyed to build
the mosque". So, till now, the people do not know the truth that
Justice Agarwal has found; they only believe as true the lie that the
media has telecast.
The critical evidence that became one of the most contentious issues
between the Hindu parties and the Muslims parties in the court was
the Archeological Survey of India (ASI) Report which established that
a massive structure "indicative of the remains which are distinctive
features" of "the temples of North India" existed under the mosque.
The first point to note was that the ASI was brought in by the court
on its own in 2002, not by any party or the government. The ASI did
the GPR survey and excavation under the orders of the court and under
supervision by two judicial officers appointed by the court, in the
presence of the counsel for the parties.
But the most disgusting part of this critical exercise, the
importance of which to the case is brilliantly captured by Justice
Agarwal (p3869-4333), was the way the Muslim parties attacked the ASI
work in court, including on the ground that the BJP was ruling then,
and that the ASI team did not include sufficient number of Muslims in
the excavation work. This led to the court chiding them for suffixing
experts with "Muslim", "Hindu" or "Christian" (Justice Agarwal p230).
But now, after the verdict, the secularists attack the court for
relying on the ASI report in almost the same language the Muslim
parties used to attack the ASI prior to the verdict!
But the otherwise well-conceived and best-written judgment badly
slipped, in law and in judicial wisdom, on the division of the
disputed site.
That, in the final part tomorrow.
The otherwise legally proper and judiciously sound Ayodhya verdict has suffered serious legal haemorrhage by the decision of Justice Khan and Justice Agarwal to divide the disputed land into three parts and give one-third each to Hindus, Muslims and the Nirmohi Akhara. This article explains that fatal infirmity. An issue where law is mixed with facts, it calls for some strenuous reading to know what the deadly defect in the judgment is. To recall, the short facts are: in their two suits, the Hindus claim the disputed site as exclusively their own; in their suit, the Muslims claim it exclusively as their own; in its suit, the Nirmohi Akhara too claims it as exclusively its own. None of them had asked for nor would accept to share the disputed land with any other or the others.
To simplify the law for the uninitiated, the law says that a person filing a suit has to plead his case properly and clearly, and also ask for reliefs in clear terms. The court will look only what suitor says in his plaint and his opponents in response, nothing else, to know what is the case. It will then frame the contentious issues and decide them on the basis of the pleadings of the parties and evidence tendered by them. The principal issues decided on that basis by the Allahabad High Court, unanimously or by 2:1 majority, in the present case are: one, the rights of the Hindus over the Ram Janmabhoomi never ceased at any point in time; two, the Muslims were never in possession of the disputed premises at any point in time; three, the Muslims failed to prove their possession of any part of the disputed land; four, the last time the Muslims did namaz on the disputed property was on 16.12.1949; five, the Hindus never admitted possession by Muslims at any time, even in the suit of 1885; six, Muslims never acquired title even by adverse possession; seven, the Akhara never had possession nor acquired title by adverse possession; eight, the suits of Muslims and the Akhara, having been filed beyond the limitation period, are dismissed. On this basis, the court dismissed the suits of Muslims and Akhara, thus denying any relief. While, Justice Sharma allowed the suits of Hindus in full, Justice Agarwal and Justice Khan allowed the Hindus’ suit partly.
On why they ruled partitioning of the disputed land, Justice Agarwal and Justice Khan have said that under a provision (Order 7 Rule 7) in the Civil Procedure Code they had the authority to give less relief than what the Hindus had prayed for in their suits. So by assuming that they had the power to reduce the share of the Hindus, the two judges seem to have thought that they had also the power to give the balance to Muslims (1/3) and the Akhara (1/3); in the process what the two judges have done is to give Muslims and Akhara rights, which Justice Sharma and Justice Agarwal have separately declared they do not have. Also none of the three parties had asked for what the court has done. The first principle is that, any relief beyond what the suits set out in pleadings and prayers can only be given at the instance of one of the parties; not by the court on its own motion like it has done in this case. If parties themselves had not asked for anything outside the pleadings, the court cannot go beyond their pleadings at all.
The law on this point has never been in doubt. The Madras High Court has ruled in 1998 (Arunachalm Pillai Vs Ramu Mudaliar and others) that where each party claims exclusive title to the property and none of them accept the right of the other (exactly as in the Ayodhya case) the question of partitioning the property between them does not arise at all (under the very provision of law cited by the two judges in Ayodhya case). The courts in Patna, Kolkata, and the Madras High Court itself have ruled this principle earlier. As far back as 1991 the Supreme Court (Om Prakash V Ram Kumar (1991) 1 SCC 441) had ruled that even if a party asks for reliefs outside his pleadings the court can never allow them; by doing so it will prejudice rights of the other party.
So the settled legal position is this: even if parties, like the Ayodhya parties, who have filed suit asserting exclusive rights against one another, ask for partition, the court cannot grant it; and in no event the court can do it without the parties asking for it. None of these judicial rulings seem to have been noticed by the two judges. Had one of the parties asked for partition, the other party would have brought the case laws to the court’s notice. That is why law requires that the court should decide no issue that is not put to the parties. An order contrary to this principle is, in law, without jurisdiction. Civil law pundits would cite the old maxim of Coram Non Judici to say that the courts — read Justice Khan and Justice Agarwal — have no jurisdiction to do what they have done.
Now that they have passed the judgment, the judges will have to write a decree in accordance with the judgment. Assume that the judges can write a decree in the Hindus’ suit giving them less than their claim of 1/3 share. The suits of Muslims and Akhara having been dismissed, how could a decree be written in their favour? If no decree could be passed in their favour in their suits, they cannot get the 1/3 share at all. And no decree could be passed in the suits of the Hindus in favour of Muslims and Akhara! Therefore, the 1/3 gift by the two judges to them each will be only on paper. So a new battle will start only at the point if the two judges attempt to write the decree for two-thirds of the disputed land in favour of the Muslims and the Akhara whose suits stand dismissed.
The legal unsoundness aside, the decision to divide the disputed land and award 1/3 each to the Muslims and the Akhara, stands out contrary to the spirit of the otherwise judicious judgment. It has put roadblock on the temple construction; how could a temple to which a million people come on Ram Navami day be accommodated in one acre of land (a third of the disputed area) with a mosque beside. It will be an invitation to a law and order disaster.
Many idealists welcome this action of the two judges as an ideal solution. But, in sensitive issues like relations between Hindus and Muslims (many among whom still share bitter memories of past) the ideal is not practical; only what is practical is ideal. This sense of idealism without practical sense is that what seems to have led the two judges into the judicially erroneous decision to divide the disputed land.
QED: The historic Ayodhya judgment has, thanks to this fatal defect, now less potential to resolve the dispute and more potential to escalate it.
(This is the final of a three-part series on the Ayodhya judgment)
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