Ayodhya Verdict: The alchemy of judges

On November 9, the Ayodhya dispute stood settled in law. In Siddiq v Das, the Supreme Court of India has ruled in favour of Ramlalla Virajman, the deity Ram.

The “distinct architectural characteristics of Hindu and Islamic cultures” pointed the Court to the syncretic Indian culture. Admittedly, the “facts, evidence and oral arguments of the present case” the constitution bench led by Chief Justice Gogoi acknowledged, “have traversed the realms of history, archaeology, religion and the law.”

The Court had rejected the standing of the Shia Muslim groups in the dispute. The Court nevertheless vouched to steer clear of “political contestations”.

The Ayodhya dispute in law is essentially a land ownership dispute. And, title to the land is decided “on settled legal principles and applying evidentiary standards which govern a civil trial.” The Court said the clinching evidence to the title comes from “long and continued possession”.

The Legal Aspects

Notably, the litigating parties never disputed that the disputed land belonged to the government. The Supreme Court first overturned the decision of the Allahabad High Court, finding “serious flaw in the entire approach”. The Allahabad High Court had ordered “a three-way bifurcation of the disputed site.”

The Court turned to four legal issues: the Indian law of waqf, adverse possession, the doctrine of a lost grant, and the law of evidence.

First, one of the plaintiffs had contended that “the entire property of the mosque, including both the inner and outer courtyards, is waqf property.” A waqf is a dedication of movable or immovable property for a religious or charitable purpose. It is a “permanent and irrevocable dedication of property” and once the waqf is created, the “dedication cannot be rescinded at a later date.”

The statutory definition of a waqf in India “recognises the validity of a waqf established by use and not by dedication”. But the legal recognition as public waqf is a “matter of evidence”. “Indian jurisprudence”, the Court said, “recognises the principle of waqf by the user even absent an express deed of dedication or declaration.” The test is whether the property has been used for “public religious worship” by those professing “the Islamic faith”. The evidentiary threshold is rather high. The Court while acknowledging the “evidence of established religious worship by Hindu devotees within the premises of the disputed site” rejected the waqf logic.

Second, Rajeev Dhavan, Senior Counsel for the Sunni Waqf Board, argued for the doctrine of lost grant. Under this doctrine, a long-continued use or possession can raise a legal presumption that the right exercised was previously conveyed to the user or possessor, but “the instrument of conveyance has been lost”. Effectively, the plaintiffs “sought a declaration on the basis of the dedication of the mosque, upon its construction by Babur in 1528 for the worship of the Muslim community.”

However, the onus of proving continued and uninterrupted enjoyment of property through long use is on the plaintiff. As there is a legal presumption of a grant, the Court further noted, “the doctrine is not applicable unless throughout the necessary period there existed some person or persons, alone or together, capable of conveying the interest claimed to have been transferred by the lost grant.”

Temple for Hindus

Third, the Sunni Waqf Board argued for “adverse possession” in the possibility of a finding “that the mosque was constructed on the site of a Hindu temple.” The waqf Board seemingly lost the case when the Court noted that “the alternate plea of adverse possession is destructive of a valid legal basis to apply the doctrine of lost grant as a rule of evidence.”

Furthermore, the Court also noted that “the accounts of the travellers must be read with circumspection.”

On the balance of probabilities, the Court found “clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded”. For the Court, the “possession” by Hindus “of the outer courtyard stands established together with the incidents attaching to their control over it.”

Restitution to Muslims

Finally, the Supreme Court directed the allocation within “the city of Ayodhya” five acres to the Sunni Waqf Board out of the acquired land. The Court left the execution of the decision on the central government and the Government of Uttar Pradesh.

The Court finally observed that “law forms the ground upon which multiple strands of history, ideology and religion can compete”.

Yet, the Supreme Court has decided in favour of myth against history. The rise of the myth has been a feature of 20th-century nation-building across the world. Nevertheless, the Muslim Waqf Board has hinted at the inconsistencies in the ruling. The civil society can only hope that the ruling adds to communal harmony and peace.

The alchemy of the judges is for everyone to see, nevertheless.

(The writer is Associate Professor, Jindal Global Law School)