Week 8 in Ayodhya

As arguments in the Ayodhya title dispute enter the final stretch, we provide an overview of what happened last week (23-27 September). The counsels for the Sunni Waqf Board concluded their responses to the other suits. Notably, Sr. Adv. Meenakshi Arora for the Sunni Waqf Board disputed the conclusions drawn by the Archaeological Survey of India. In addition, the court heard Sr. Adv. Shekhar Naphade for appellant Farooq Ahmed argue on the res judicata issue.

Last week, the Bench set a timeline for completing arguments by October 18th:

• By September 27th: Counsels for Sunni Waqf Board to conclude responses to opposing suits
• September 30th – October 1st: Counsels opposing the Sunni Waqf Board to present rejoinders
• October 2nd – 4th: Sr. Adv. Dhavan to present arguments on his client’s (Sunni Waqf Board) suit
• October 7th – 11th: Dussehra vacation
• October 14th – 18th: Unassigned. The court is likely to hear the counsels for the Nirmohi Akhara and Shri Ram Virajman respond to each other.

For a summary of previous week, see:  weeks 1, 2, 3, 4, 5, 6, 7, 9 or 10

Response to Shri Ram Virajman’s suit concludes

On Monday September 23rd, Sr. Adv. Rajeev Dhavan concluded his response to the deity’s suit on behalf of the Sunni Waqf Board. He primarily sought to establish that the Ram Janmabhoomi (lit: Ram Birthland), plaintiff number 2, lacks legal personhood. He submitted that juristic personality (JP) could only be ascribed to divine forms that are physically manifested. Further, he argued that the opposing counsels could not establish JP on the belief of Hindu worshippers alone, emphasizing that a formal consecration was required. Finally, he said that there was a lack of evidence to establish that Janmabhoomi was located at the disputed site, a point which Sr. Adv. Jilani would return to later in the week.

In addition, Sr. Adv. Dhavan argued that the deity’s suit was not maintainable. Firstly, he contended that it was barred by limitation. In particular, he disputed Sr. Adv. K. Parasaran’s argument that the suit enjoyed a infinite limitation period as it fell under Section 10 of the Limitation Act, 1963. Sr. Adv. Dhavan later corrected himself, as Sr. Adv. Parasaran had never claimed the suit fell under Section 10. Nevertheless, Sr. Adv. Dhavan maintained the suit was barred by limitation.

Second, he argued that D.N. Agarwal who had filed the suit for the deity, lacked locus standi (i.e. the legal standing to approach the court). Sr. Adv. Dhavan argued that a deity is represented by its shebait, in this instance the Nirmohi Akhara. He submitted that D.N. Agarwal ought to have first shown that the Nirmohi Akhara had acted against the interests of the deity, before he could have filed a suit on the deity’s behalf.

Further, Sr. Adv. Dhavan sought to show that D.N. Agarwal was seeking to undermine the Nirmohi Akhara’s shebaitship (management) rights. Referring to Agarwal’s pleadings, he submitted that Agarwal intended to construct a new Lord Ram temple at the disputed site. He said that this new temple would come under the management of the Ram Janmabhoomi Nyas (of which Agarwal was a trustee), and not the Akhara. His argument appears to have been a part of larger strategy by the Sunni Waqf Board to show that the Akhara’s and deity’s suits are adversarial.

Response to G.S. Visharad’s suit

On September 24th, Sr. Adv. Dhavan briefly responded to the lay-worshipper G.S. Visharad’s suit. Visharad filed his suit in 1950, seeking the right to worship at the disputed site. After dying, his son Rajendra Singh took his place as the primary plaintiff in the suit. Sr. Adv. Dhavan’s main argument was that the right to worship is non-transferable. He submitted that after the plaintiff’s death, his private rights extinguished.

Location of the Ram Janmabhoomi

On  September 24th and 25th, the court heard Sr. Adv. Zafaryab Jilani for the Sunni Waqf Board argue that the opposing counsels had failed to establish the location of the Ram Janmabhoomi. Sr. Adv. Jilani took the Bench through both religious scriptures and historical accounts and argued that the evidence did not conclusively establish Lord Ram’s precise birthplace.

The Bench did not appear very receptive of his submissions. First, it pointed out that Sr. Adv. Dhavan had earlier argued that negative inferences could not be drawn from religious/historical texts. That is to say, because something is not mentioned, does not mean it does not exist. In addition, it observed that evidence exists that establishes the disputed site, specifically the Ram Chabutra, as the birthplace (according to Hindu belief). Responding to the latter, Sr. Adv. Jilani submitted that the Ram Chabutra is located in the outer courtyard, while Babri Masjid was located in the inner courtyard. The Bench observed that this was a distance of only roughly 50-60 feet.

Archaeological Survey of India’s report

On September 25th, 26th and 27th, Sr. Adv. Meenakshi Arora disputed the reliability of the Archaeological Survey of India’s (ASI) 2003 report, wherein it concluded that Babri Masjid was built on a public structure dating to the 12th century, which was likely a Hindu temple. She argued that archaeology is an inferential science whose findings require strong corroboration. Further, she contended that the findings of the report suffer from many irregularities.

On archaeology being an inferential science, Sr. Adv. Arora argued that the ASI’s findings are only advisory in nature. Relying on Section 45 of the Indian Evidence Act, 1872, she submitted that the report can only be considered an opinion on facts, and not facts in and off themselves. She requested the Bench to consider the report weak evidence, which required strong corroboration.

She took the Bench through various conclusions drawn by the ASI, which she argued suffered from irregularities. For example, she submitted that the excavated pillars and walls lacked structural coherence, attempting to cast doubt over whether a temple existed at the site. She pointed out how the pillars varied in height, shape/form and orientation.

She also questioned the ASI’s assumption that the structure was Hindu. She argued that many of the structures and artefacts had features universal to Hinduism, Buddhism and Jainism. She suggested the ASI officers may have suffered from bias, in assuming the site was Hindu. In addition, she argued that the site may have been Muslim. In particular, she suggested the possibility that it was an Eidgah (outdoor enclosure for Muslim prayer).

The Bench observed on Thursday that under its appellate jurisdiction it could not assess directly the findings of the ASI’s report. It questioned why the Sunni Waqf Board had failed to file objections during the trial stage, to which Sr. Adv. Arora responded that the report was commissioned 40 years after the Board had filed its suit. The Bench clarified that it could only entertain arguments pertaining to whether: (i) the ASI’s report went beyond its court commissioned mandate, (ii) the ASI’s report suffered from contradictions, (iii) summaries of the report were inauthentic. For the most part, Sr. Adv. Arora restricted herself to arguing within these restrictions.

Res judicata

The Bench concluded the week by hearing Sr. Adv. Naphade for appellant Farooq Ahmed argue that the Ayodhya title dispute had already been resolved by the judgment in an 1885 suit. In 1885, a Mahant had filed a suit to gain permission to construct a temple at the Ram Chabutra in the outer courtyard. The Faizabad district court ruled against him. Relying on this judgment, Sr. Adv. Naphade argued that the principle of res judicata applies, which states that courts shall not re-hear a suit that has already been ‘substantially and directly’ decided by another court.

One issue that arose was whether res judicata applied even though the original suit pertained only to a portion of the property, whereas subsequent suits pertained to the entire property. Referring to case law, Sr. Adv. Naphade asserted that the principle applies even when the original suit involved only a part of the whole property.

Nevertheless, the Bench seemed unwilling to entertain Sr. Adv. Naphade’s argument, observing that the Mahant did not represent all Hindus. In particular, Justices Bobde and Chandrachud remarked that the 1885 suit lacked the procedural requirements under the Code of Civil Procedure, 1908 (CPC) to be considered a representative suit. Sr. Adv. Naphade responded that the Mahant’s plaint stated it was filed on ‘behalf of the Hindus’. Further, he argued that while it failed certain procedural requirements, it met the intention of said requirements and that the Bench should adopt a purposive interpretation of the CPC.