Guest post by BISWAJIT ROY

In my earlier piece, I had noted Justice Khan’s pluralist-nationalist sentiments and his anguished pleas to Muslims to ‘avail the opportunity to impress others with the message’ of ‘peace-friend ship- tolerance’ by accommodating Hindu faith-based claims to the area under the central dome of the demolished mosque as Ram Janamsthan. But I failed to find similar sentiments or espousal of the need of inter-community reconciliation on equal footing in the ‘bulky’ exposition of Justice Agarwal, despite his concurrence to Khan’s order for three-way partition of the disputed land, as well as justice Verma’s judgment that had awarded entire place to Hindus.

Interestingly, unlike Justice Verma, Justice Agarwal tried to examine the questions of historicity or evidence of the Hindu faith-based claims. But he actually ended with equating the antiquity of the faith about the existence of the Ram Janamsthan at the precise place where the deity was installed in 1949 with the historicity or authenticity of such existence. Even as the operative part of his judgment is apparently aimed at finding an amicable solution to the longstanding dispute, his detailed arguments/observations offered some paradigm shifts not only in judicial-legal principles but also in the norms of adjudication-arbitration-reconciliation of disputes in other spheres of our public life. Not only he (also justice Verma) accepted the Hindu faith as the cornerstone for justice and gave primacy to it but also gave judicial seal to an essentialised/homogenised version of Hinduism that closely resembled the Sangh discourse.

To my mind, recognition of faith/belief in adjudication in case of inter-faith disputes in non-Western societies like us is not as much problematic as the acceptance of the monolithic, majoritarian religio-political discourse.  The trajectory of Justice Agarwal’s arguments/observations are neither informed by pluralistic, syncretic religio-cultural traditions around the myth/cult of Ram including the Bhakti movement nor do they betray concerns for the impact of the preponderance  of majority faith in such a hugely politically symbolic dispute on our troubled democracy. Let us go through some of Justice Agarwal’s key points.

The judge’s investigation into historicity of Hindu claims
” Before embarking upon the question as to whether the  site in dispute is that where Lord Ram was born, we have to first consider the question about the historicity of the matter,” Justice Agarwal said (page 4818). Referring to the Hindu faith about Ram’s birth in Aydhoya, he observed that ‘this by itself does not end the matter for the reason that the issue with respect to the birth of Lord Rama at the disputed place has not been framed merely on the basis of the faith of Hindus but is a direct issue’.
He then noted the arguments of the Muslim side that ‘so far as the faith is concerned, the things may be said to be beyond the pail of judicial review but where a positive issue as to whether a particular thing happened or not, that is pure question of fact and can be investigated provided the historicity of the matter is proved (page 4819)’.

Justice Agarwal’s investigation into the historicity of Hindu claims, despite the ‘suggestion’ from some quarters that ‘Ramayana has been held to be a great epic and there being a mythical story, the question of actual birth of Lord Rama is beyond any comprehension and the question of place of birth also become redundant’, continued on the basis of Puranic scriptures as well as foreigner’s travelogues, mainly the accounts of William Finch and Joseph Tieffenthaler.

Historicity = the consistency of the faith during the historic periods.
However, after examining volumes of submissions based on various Hindu religious as well as Mughal era and colonial sources, the judge said: “To our mind instead of puzzling ourselves in so much literature etc. in view of certain aspects which emerges from whatever we have mentioned above may be summarized which probably may give some idea as how the questions are to be answered’.
The summary, according to him, is: “The antiquity of Ayodhya is not disputed. It is also not disputed that Ayodhya is known as the principle place of religion and mainly concerned with Vaisnavites. i.e. the followers of Lord Rama. Lord Rama was born at Ayodhya and ruled thereat. The religious text like Valmiki Ramayan and Ram Charitmanas of Goswami Tulsidas and others like Skandapuran etc. mentioned that Lord Rama was born at Ayodhya and it is his birth place but do not identify any particular place in Ayodhya which can be said to be his place of birth (page 4927).
Articulating the problematic, Justice Agarwal said: ” On the one hand we do not get any idea about the exact place or site but simultaneously we can reasonably assume that once it is not disputed that Lord Rama was born at Ayodhya, there must be a place which could be narrowed down at [as?] the site of his place of birth. It is true that a search of a place of birth after long time even today may not be very easy if one tried to find out in this regard just three or four generations back. Therefore, for making such kind of inquiry in a matter of such antiquity is almost impossible (ital added).”

‘Preponderance of probability’
However, to get out of the tangle, Justice Agarwal referred to a judicial principle: “But when a dispute in such a manner is raised then we go by the well accepted principle in law of evidence particularly as application in civil cases, i. e. preponderance of probability’.
The application of the said principle is embodied in the section 3 of Evidence act which says ‘a fact is said to be proved when, after considering the matters before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition with its existence’
Further, the judge again declared that the ‘only thing the Court should not do is to base its conclusion on mere conjectures or surmises’ (page 4928). But in the next sentence, he observed, apparently changing the earlier premises of his investigation, that ‘here we have not to consider the historicity of Ayodhya or Lord Rama but only to find whether the place in dispute, according to the belief, faith and traditions of Hindus is the site where Lord Ram was born). Even if we have to draw an inference whether this is place where Lord Rama is born(e), we need not to record a finding like mathematical calculation but it has to be decided on the preponderance of probability”.

The examination of the probabilities began with the observation that ‘it is nowhere suggested by the plaintiffs(suit-4) for the Muslim parties that except the property in dispute there were any other place in Aydhoya which is believed by the Hindu people as place of Lord Rama’. However, the judge noted that ‘what they [Muslim side] submit is that there was another temple on the north side of the property in dispute which is called Janamsthan temple’. But he ruled the out the possibility since ‘the antiquity of that temple goes back only about 200-300 years, i.e., not beyond 18th or 19th century’ (page 4928).
He then quoted Finch and Tieffenthaler, not to establish the historicity of Ram and his janamsthan, but the historic consistency of the Hindu faith about the existence of Ram’s birth place inside the disputed land. ” The territory was reign[ed] by Muslim rulers and despite taking risk the Hindu people if were entering a mosque for worship believing it to be the place of birth of Lord Rama, this faith, their determination and their attitude must have some basis and cannot be taken lightly,” Justice Agarwal said (page 4929).

The essence of Hinduism
He later discussed the concept of Avatar in Hinduism at length to underline the Hindu belief of Ram being an incarnation of Vishnu and centrality of Ram to the ‘real fame, piety and sacredness of Ayodhya’ and ‘none else’. Admitting the difficulty to define Hinduism precisely, he then resorted to the same logic of Othering which we have heard in the Hindutva discourse earlier. “Some say that Hindu by itself is not a form of religion but a way of life, living etc. …. But at this stage, we may clarify that the term Hindu may intend to use as it is known in common parlance in contra distinction to the terms used for other religions, i. e. Muslims and Christians'(page 4941).
Maintaining that the ‘Hindu religion is the oldest one’, the judge anchored his justification of recognizing the ancient Hindu scriptures as the valid sources of belief in historicity of Ram and his Ayodhya in the antiquity of those scriptures themselves before stressing on the incompatibility of dominant academic understanding of historicity and popular faith.

The  judge questions the dominant discourse on historicity
” Because of its own certain antiquity among Hindu Scriptures, we find sometimes mention of such things which become difficult to digest on our conceivable notion and logic and the limitation of our understanding which we have in the light of the information available to us currently. May be on account of non-availability of the reliable feed back some of the aspects of Hindu scriptures are termed by others as myth, legend, epic, etc. doubting its historicity, ignoring the fact the common people are so deep embedded in blood that it is beyond imagination for them to even think of a situation where those faith and belief can be termed as a mere fiction and not a matter of historicity,” the judge argued.
He then questioned the European/colonial epistemology and discourse on historicity and corresponding understanding of elements of history not in a post-modern or subaltern vein but making an almost unmistakable echo of the Sangh’s belief in the pristine pure golden past of ancient Hindu civilization.
“For example, the two of the  world’s biggest works known as ‘Ramayana’ and ‘Mahabharata’ of Hindu scriptures, other people started to call it ‘epic’ and that we have followed since the days of British India and now also. Initially the European writers in their own understanding find it unthinkable even the existence of such an antique society and culture and that too so perfect and so well defined, sophisticated but complicated in different facets,” he said. Nevertheless, he was happy with the changes in the mindset of a section of Indian intelligentsia. Much before setting in the investigation into the historicity of the Hindu claim, Justice Agarwal appreciated the Hindu side’s pleading that Ram cult is central to Hindu beliefs. “The birth place of Lord Ram is located at a particular spot in Ayodhya. It can not be shifted to any other place in the world. It is of the same status for Hindus as Mecca for Muslims. As Mecca cannot be shifted, so Ram janambhoomi cannot not be shifted. On the basis of the national policy, while assigning the weightage to particular  place of a particular religion or a particular community , the belief and religious feelings of Hindus in this regard be given supreme importance. A mosque can be built in any other part” (page 102, italics added).

Incompatibility between evidence-based colonial judicial system and faith-based claims
“In brief it can be said that merely because I am not able to trace my history of succession it will not mean that I do not have a chain of succession. One’s inability in finding something cannot result in a conclusion that actually nothing existed’, he argued in absence of precise historical evidences of Ram’s birthplace at the disputed site while expressing his awe and pride in the achievements of ancient Indians in various fields which, he felt, allowed Indian civilization to outlive other ancients: Egyptians, Greek and Romans.
Maintaining that ‘one has to find out the reasons for its [ancient Indian civilization] sustenance’, evidently in the strength of the consistency of the faith, justice Agarwal then questions the very basis of our colonial judicial system and its legal principles. “This is a kind of approach, thoughts, faith and beliefs of one part of the litigants before us and their contemporary opponent wants in existence of positive material irrespective of the time and antiquity matter relates to. The reason being that the issue has been brought in a court of law which is presently governed by the system [which] we have inherited from a totally different culture, i.e. British legacy where they have told us to decide the dispute only by getting evidence and not otherwise (page 4943),” the judge noted.

But he surpassed the hindrance created by the evidence-only colonial jurisprudence by taking cognizance of historic faith and belief in determining the case. “The issues relating to faith and belief, and that too, which had continued from generations to generations, from hundreds and thousands years neither depend on the so-called existence of evidence nor one can shake such custom which they have received by tradition for want of evidence.”
Though he had maintained earlier (page 4927) that the task to zero in the exact location of Ram’s birthplace would be impossible, now the Judge argued that ‘no one is supposed to point out place of birth of Lord Rama like finding out a correct residential address in the present time but one has to adjudge the matter in a reasonable and plausible manner, which is not almost impossible (page 4946).’
He then added the history of riots in 19th century to the weight of history of Hindus’ faith-based claims to the disputed site. ” We are concerned as to what impel the communities to fought [fight] so frightfully that resulted in such a large number of casualties, if the disputed place was an ordinary place of worship of Muslims having no other history or antiquity attached with it. The conduct , the attitude, the insistence on part of Hindus, continuously, at least as is evident from the record i.e, from the time of Tieffenthaler and onwards, show that it was for something really serious on account whereof Hindus were not able to give up their claim,” he observed.

As the judge finally concluded that ‘[it is] very clear and categorical that the belief of Hindus by tradition was that birthplace of Lord Rama lie within the premises in dispute as was confined to the area under the central dome of the three-domed structure’, Justice Agarwal added,’ in arriving to this conclusion we do not find any difficulty since the pleading in general and particular also do not detract us (page 4997).’
As the judicial principle of preponderance of possibilities excluded other possibilities including some Hindu and non-Hindu beliefs in Ram’s birth elsewhere and hailed the finality of the faith and beliefs of Hindu claimants, the judge tried to justify his position by maintaining that ‘the evidence [Ital added] adduced by the parties and what the witnesses have said on behalf of Hindu parties and fortify the case set up by the defendants’. But the ‘evidence’ became synonymous with belief as he quoted a Bombay High Court order: ” If this the belief of the community….a secular judge is bound to accept that belief—it is not for him to sit in judgment on that belief’. And, he now invoked Constitution: ” Such [belief becomes] an ‘essential part of religion [which] is constitutionally protected under Article 25’.

Gesture to Muslims
The judge now tried to make room for the apportionment of the disputed land as a gesture to the minority as the area within the inner courtyard used by both Hindus and Muslims since decades and centuries. “When the Hindu parties have referred to the entire disputed site as a place of birth, this Court can always find out and record a finding for, instead of entire area, a smaller area within the same premises’. Differing from his brother judges, Justice Agarwal said that ‘concerned parties have miserably failed to prove that [the mosque] it was so constructed in 1528 AD by Babar or any of his agent. Maintaining on the basis of Mughal era foreigners’ accounts and ASI’s suggestive report, he held that ‘there existed a religious place of non-Islamic nature before the construction of the disputed structure.’
However, he dismissed the Hindu side’s plea that the mosque cannot be treated as a valid mosque as it had come up against Islamic tenets and said that ‘it is not open to any party to raise such dispute, which in effect require a judicial review of something which has been done by a king at a time when there was no codified law’.
He took cognizance of the fact that ‘the disputed structure was constructed as a ‘mosque’ and always treated and called ‘mosque’ by Hindus and Muslims both, alike, for the last almost one and half century before the date of attachment’ even if Hindus continued to enter and worship there. According to him, ‘the evidence which we have no record shows that at least from 1860 and onwards Namaz has been offered in the building in dispute in the inner courtyard and the last Namaj was offered on 16 December, 1949’.

Criticism of 1992 demolition
Justice Agarwal [for that matter, none of the three judges] did not delve into the question that what would have been the course of their adjudication if the mosque was not demolished. However, he criticized the 1992 demolition of the mosque, albeit in the context of Muslim sides’ contention that Ram Lalla lost his status as deity following his removal after the demolition. Dismissing it on the ground of removal being of very transition[al] and temporary kind’, Justice Agarwal said: ” The circumstances in which this removal took place are also known to all. A huge mob, in a most abominable manner, caused demolition of the disputed structure against all norms and principles of a civilized society.” As the Hindu side argued disfavoring Muslim’s right to offer prayers at the disputed site on the ground of demolition of the mosque and Muslims’ stress on property’s nature as a Wakf, Justice Agarwal refused to accept it a Wakf since it ‘can be created when wakif is the
owner of the land’ but held in favor of continuance of Namaj as both communities earlier had treated it as mosque. ” Such right, in our view cannot be defeated merely by removing the construction, since the plaintiffs if had a right to possess the land in question, they can continue to maintain their suit irrespective of whether building in dispute has been demolished,” he said.