Week 10 in Ayodhya

Oral arguments in the Ayodhya Title Dispute came to an end this week on October 16th. Court has now reserved its judgment and is expected to deliver it before November 18th, when CJI Ranjan Gogoi will retire. The final week saw fierce arguments, frayed tempers and frequent interventions from the Court.

We bring to you some of the highlights from this week’s arguments. For a summary of the oral arguments from the first nine weeks, see these links: 1, 2, 3, 4, 5, 6, 7, 8 and 9.

Sunni Waqf Board asserts it has an unblemished title  

Sr. Adv. Dhavan argued that the Sunni Waqf Board held the title to the disputed site, evidenced by its continuous possession of the site. He said that both the British Crown and the Nawab of Awadh had recognised Muslim ownership of the site.

In this regard, Justice Chandrachud asked Sr. Adv. Dhavan if the Board had, in 1858, admitted to the existence of a Hindu temple at the site when making a claim for adverse possession based on continuous offering of namaz by Muslims. Responding to the query, Sr. Adv. Dhavan stated that the Board had made an argument for adverse possession without admitting to the existence of a temple.

As regards adverse possession, Sr. Adv. Vaidyanathan made an interesting submission later on in his reply. He argued that the Board could not claim adverse possession against the deity, as it had itself never renounced its title claim. In addition, he argued that the Board did not prove an ouster of the prior owner – i.e. continuous, uninterrupted, exclusive possession with intent to oust.

On another note, Justices Bobde and Chandrachud asked Sr. Adv. Dhavan whether the Board’s claim to exclusive possession is diluted by the fact that Hindus enjoyed the right to enter and pray in the outer courtyard. Sr. Adv. Dhavan responded saying that the Hindus only enjoyed a ‘prescriptive’ right (to pray), which did not transfer them possession. Justice Chandrachud observed that there are documents indicating some Hindus were living in the outer courtyard. In response to this, Sr. Adv. Dhavan turned to the 1885 suit, wherein a Hindu Mahant was denied the right to construct a temple. He argued that this showed that Hindus were denied ownership of the outer courtyard. However, Justice Chandrachud observed that no declaratory relief for ownership was sought by the Mahant. Sr. Adv. Dhavan asserted that praying for permission to construct a temple, assumed ownership.

Validity of title conferred by ‘conquerors’

After submissions concluded in the Sunni Waqf Board’s suit (original suit number 4), Sr. Adv. Parasaran commenced his reply on behalf of Shri Ram Virajman. On the issue of title, he argued that Sr. Adv. Dhavan could not place reliance on the recognition of the Sunni Waqf Board’s title by the Mughals or the British. He argued that ‘conquerors and foreign occupiers’ cannot be recognised as legitimate, urging the court to ‘right a historical wrong’. Elaborating on this further, he argued that when a new sovereign begins to rule, it has no obligation to recognise rights granted by the earlier ruler.

He added that the difference between the inner and outer courtyard was an artificial one created by the British. He argued that Hindus enjoyed the right to worship in both places and that this was even recognised by the British.

Sr. Adv. Dhavan objected to this argument stating that it was a new argument and should not be allowed at this belated stage of the hearing. Sr. Adv. Parasaran, in response, argued that a court may take note of a correct position of law, even if it was not argued earlier.

Moreover, Sr. Adv. Dhavan submitted that no unified India existed in the 17th century and that Babur was merely a conqueror, not an invader. Further, he emphasised the secular nature of India’s Constitution.

Who does the burden of proof fall on?

Both Sunni Waqf Board and Shri Ram Virajman were keen to pass on to the other the burden of proving that title belonged to them. While Sr. Adv. Dhavan asserted that the burden was on the Hindu parties, Sr. Adv. Parasaran argued that it rested with the Sunni Waqf Board. Sr. Adv. Parasaran disputed the fact that the 1885 suit placed the burden of proof on the Hindu parties. In the 1885 suit, a Faizabad district judge had denied a Hindu Mahant the permission to construct a temple in the outer courtyard.

Sr. Adv. Parasaran submitted that the court, in its judgment in the 1885 suit, had observed that it was ‘unfortunate’ that a mosque had been built on a place considered sacred by Hindus, but that it would maintain the status quo since ‘so many years had passed’. He argued that this indicated that the 1885 court had reasoned in favour of the Hindus.

On burden of proof, Sr. Adv. Vaidyanathan, also appearing for Shri Ram Virajman, claimed that the Sunni Waqf Board had failed to prove the land was vacant when Babur constructed a mosque on it. In effect, he was arguing that Babur illegally constructed a mosque and that it remained in possession of the deity.

Did the Sunni Waqf Board lose its legal identity?

A number of parties other than Sunni Waqf Board, Nirmohi Akhara and Shri Ram Virajman also presented their concluding arguments on the last day of the hearing. Among them, Sr. Adv. Vikas Singh, appearing for a faction of the Hindu Mahasabha, introduced a novel argument, asserting that the Sunni Waqf Board had been in-effect abolished by the Government of India Act, 1858 (GOI Act). The Act marked the shift of power from the East India Company to the Crown. The Company’s Board of Control had recognised the Sunni Waqf Board. However, after the Board of Control’s abolishment, the Sunni Waqf Board never sought recognition from the Crown. Given this, Sr. Adv. Singh submitted that the Sunni Waqf Board no longer had a legal identity.

Sr. Adv. Dhavan responded to this by pointing out that Section 61 of the GoI Act only applied to appointed commissions, not boards (i.e. Board of Control), and that thereby the Sunni Waqf Board remained unaffected by the GoI Act.