Week 9 in Ayodhya

In week 9 (September  30th – October 4th), the Court heard rejoinders by Shri Ram Virajman, the Nirmohi Akhara and other Hindu parties. Further, Sr. Adv. Dhavan began his concluding arguments for the Sunni Waqf Board.

The current iteration of the Ayodhya title dispute is drawing to a close. Chief Justice Ranjan Gogoi set October 18th as the deadline for the counsels to conclude oral arguments. The Bench is likely to deliver its judgment by mid-November, before Chief Justice Gogoi retires on November 17th.

To catch up on previous arguments, read weeks 1, 2, 3, 4, 5, 6, 7, 8, or 10

Res Judicata

Before rejoinders began, Sr. Adv. Naphade appearing for the appellant Farooq Ahmed finished his res judicata assertions. Last week, Sr. Adv. Naphade had asserted that all ‘Hindu parties’ are barred from approaching the courts to claim ownership of the disputed site. Applying the principle of res judicata, he submitted that a Faizabad court had already resolved the dispute in an 1885 suit.

Just as it had last week, the Bench enquired about the representative nature of the 1885 suit. Res judicata only bars the original party from re-approaching the court to resolve the same dispute. Sr. Adv. Naphade submitted that the original plaintiff, a Mahant, filed his suit on behalf of all Hindus. However, the Bench observed that the Mahant had not followed the procedure to represent others, let alone all Hindus. Sr. Adv. Naphade argued that the Bench should adopt an expansive interpretation of the procedure stipulated in the Code of Civil Procedure (by applying the rule of reasonable construction).

Shri Ram Virajman’s rejoinder

Sr. Advs. K. Parasaran and C.S. Vaidyanathan presented the deity’s rejoinder. While they disputed a whole range of Sr. Adv. Dhavan’s claims, they primarily focused on the issue of juristic personality. In particular, the question, ‘is the second plaintiff in Shri Ram Virajman’s suit, Ram Janmabhoomi (Ram’s birthland), a juristic personality?’ Whether a divine place can be granted legal rights depends on whether it is considered a juristic personality. Responding to Sr. Adv. Dhavan, the deity’s counsels argued that belief alone was sufficient to establish juristic personality. They argued that neither physical manifestation nor formal consecration were necessary pre-conditions.

The Bench observed that Sr. Advs. Parasaran and Vaidyanthan were invoking Lord Ram in both idol (Shri Ram Virajman, plaintiff 1) and land (Ram Janmabhoomi, plaintiff 2). It asked whether the deity existed in a composite character. Sr. Adv. Parasaran responded in the affirmative, arguing that any number of juristic personalities can be attributed to a single institution. Sr. Adv. Dhavan interjected, submitting that Sr. Adv. Parasaran was introducing a novel argument during the rejoinder stage.

Another focus of Shri Ram Virajman’s rejoinder was the Archaeological Survey of India’s (ASI) findings. Sr. Adv. Arora for the Sunni Waqf Board had sought to disrepute the findings, arguing that archaeology is an imprecise science. In response, Sr. Adv. Vaidyanthan defended the expertise of the ASI. Further, he disputed Sr. Adv. Arora’s argument that the medieval structure found at the site could have been an Eidgah (i.e. Muslim). The Bench observed that the question of whether the site is Hindu remains open and that the burden of proof rests with Shri Ram Virajman. It has many features common to Hinduism, Buddhism and Jainism.

Also of note, Sr. Adv. Vaidyanathan defended the probabilistic reasoning used by the Allahabad High Court in its 2010 judgment. Recall that the current Supreme Court matter consists of appeals to the 2010 judgment. Sr. Adv. Dhavan had argued that the judges had resorted to guesswork. Sr. Adv. Vaidyanathan strongly disagreed and emphasised that reasonable legal conclusions can be drawn from probabilistic reasoning, referring to the preponderance of probabilities doctrine.

Nirmohi Akhara’s rejoinder

Sr. Adv. S.K. Jain presented the Nirmohi Akhara’s rejoinder. He reiterated that the Akhara claims shebaitship (management) rights over the disputed site. He argued that de jure (legal) possession remained with the Akhara, despite the fact that the site is under State custody. Thereby, he asserted that the burden of proof to show ownership rested with Shri Ram Virajman and the Sunni Waqf Board.

Focusing on the Sunni Waqf Board’s claim, he argued that it was meaningless for the Board to proclaim possession over only the inner courtyard. He argued that the site is a composite whole. He did not expand on the fact that the High Court had divided the title among Shri Ram Virajman, the Akhara and the Sunni Waqf Board.

Gopal Singh Visharad’s rejoinder

Gopal Singh Visharad is a lay Hindu worshipper who filed a suit in 1950 claiming the right to worship at the inner dome of Babri Masjid, where the Lord Ram idols sat. This week, the Bench briefly heard Sr. Adv. P.S. Narasimha for Visharad, whose alleged right to worship stems from belief. Sr. Adv. Narasimha primarily sought to establish that belief is a fact which can be proven. He argued that the ASI’s report corroborated the Hindu belief that the site is divine.

Sunni Waqf Board’s final arguments

Prior to the other parties’ rejoinders, the Sunni Waqf Board had already responded to their suits. This week, on October 4th, Sr. Adv. Dhavan presented arguments on the Board’s own suit. His focus is on two issues in particular – title and limitation. This week he only had time to present on the former.

He argued that Sunnis historically had possession of the disputed site, drawing the Bench’s attention to a 19th-century British grant. He submitted that the British only issued the grant after conducting a detailed inquiry into the history of the site. Justice Nazeer observed that it was not a title grant, but a grant pertaining to upkeep. Sr. Adv. Dhavan responded that implicit in the grant was recognition that there was a mosque at the site.

Sr. Adv. Dhavan addressed issues of adverse possession in some detail. Referring to historical disputes, he submitted that no party had staked an adverse possession claim against the Sunni Waqf Board. Then clarifying the Sunni Waqf Board’s own adverse possession claim, he submitted that it was conditional. If the court finds that a temple structure existed at the site before Babur constructed a mosque, then the Sunnis claim adverse possession from the date of mosque construction, he submitted.

Finally, Sr. Adv. Dhavan argued that the Sunni Waqf Board was never dispossessed of the site in 1949, when Muslim prayers temporarily ceased. He submitted they halted due to court orders and only for a total of six days.

Sr. Adv. Dhavan will resume arguments on Monday, October 14th when he will dispute the claim that the Sunni Waqf Board’s suit is barred by limitation.