Author: A Surya Prakash
Publication: The New Indian Express
Date: October 7, 2010
URL: http://expressbuzz.com/edition/print.aspx?artid=213317
An important aspect of the Allahabad High
Court judgment in the Ayodhya title suits case is its conclusion on the issue
whether a Hindu temple existed below the Babri Masjid. All three judges have
answered in the affirmative and the reason is the meticulous investigation
by the Archaeological Survey of India on the court's orders in 2003. The judgment
refers to that report. Given the significance of this report, it would be
worthwhile to examine the evidence they gathered and their conclusions.
Below the surface
Excavation was carried out by ASI from March
12 to August 7, 2003. The court took the view that archaeological evidence
would be of importance to decide the question 'whether there was any temple/structure
which was demolished and mosque was constructed on the disputed site'. It
first ordered a Ground Penetrating Radar and geo-radiology survey. The Ground
Penetrating Radar detected what archaeologists term as 'anomaly alignments'.
Following this survey, the court passed an order on March 5, 2003 directing
the ASI to excavate the disputed site and permitted the parties to the dispute
to appoint nominees to watch the excavation.
The ASI excavated 90 trenches in five months
and submitted its report. It states under the heading 'The Massive Structure
Below the Disputed Structure': As stated earlier the disputed structure or
structure 3 was found directly resting over an earlier construction, structure
4 (pp 33-34) which has survived through its nearly 50-metre long wall (wall
16) in the west and 50 exposed pillar bases to its east attached with floor
2 or the floor of the last phase of the structure'.
The Circular Shrine
Further, it said, 'From the excavation it
could be inferred that there were seventeen rows of pillar bases from north
to south, each row having five pillar bases'. Under the heading 'The Circular
Shrine' it says, 'A partly damaged east facing brick shrine, structure ……
was noticed. It is a circular structure with a rectangular projection in the
east….. The structure was squarish from the inner side and a 0.04 m wide
and 0.53 m long chute or outlet was noticed on plan made through the northern
wall up to the end where in the lower course a 5.0 cm thick brick cut in 'V'
shape was fixed which was found broken and which projects 3.5 cm outside the
circular outer face as a pranala to drain out the water, obviously after the
abhisheka of the deity....
'The brick shrine is similar (Fig 18) on plan
to the Chirenath brick temple at Sravasti exposed recently by the Archaeological
Survey of India ………..It has also affinity with circular Siva
temples of Rewa in Madhya Pradesh at Chandrehe and Masaon belonging to C 950
AD and a Vishnu temple and another without deity at Kurari in Fatehpur district
of Uttar Pradesh and Surya Temple at Tindali in Fatehpur district... Thus
on stylistic grounds, the present circular shrine can be dated to tenth century
AD... They possibly brought the tradition of stone circular temples transformed
into brick in Ganga-Yamuna valley'.
Unearthing facts
The Archaeological Survey of India's 'Summary
of Results' is as follows:
The Northern Black Polished Ware (NBPW) using
people were the first to occupy the disputed site at Ayodhya during the first
millennium BC. This period may be assigned to circa 1000 BC to 300 BC. The
Sunga horizon (Second-First century BC) comes next in order of cultural occupation
at the site. "Typical terracotta mother goddess, human and animal figurines….represent
the cultural matrix of this level". The Kushan period (first to third
century AD) followed the Sunga occupation. The advent of Guptas (fourth to
sixth century AD) is represented by the typical terracotta figurines and a
copper coin. During the post-Gupta-Rajput period (seventh to tenth century
AD) too the site witnessed structural activity including a circular brick
shrine. Though the structure is damaged, the northern wall still retains a
provision for pranala (waterchute).
"Subsequently, (11th-12th century AD)
a huge structure was constructed, which seems to have been short-lived. On
the remains of the above structure was constructed a massive structure with
at least three structural phases and three successive floors attached to it.
It is over the top of this construction during the early 16th century, the
disputed structure was constructed directly resting over it."
Finally, the ASI summed up its answer to the
question put to it by the court, namely 'whether there was any temple/structure
which was demolished and a mosque was constructed on the disputed site', as
follows: 'Now, viewing in totality and taking into account the archaeological
evidence of a massive structure just below the disputed structure and evidence
of continuity in structural phases from the tenth century onwards up to the
construction of the disputed structure along with the yield of stone and decorated
bricks... amalaka, kapotapali doorjamb with semi-circular pilaster, broken
octagonal shaft of black schist pillar, lotus motif, circular shrine, having
pranala (waterchute) in the north, are indicative of remains which are distinctive
features associated with the temples of north India".
Presidential reference
This report played a crucial role in determining
a crucial issue before the court. At this point, it would be pertinent to
revert to proceedings before the Supreme Court in regard to the presidential
reference of January, 1993 and to the declarations and assertions by the Union
government before the apex court on how it proposed to resolve the dispute.
A five-judge Bench of the Supreme Court on
October 24 1994 delivered its judgment in the Faruqui case (M Ismail Faruqui
and Others Versus Union of India and Others) while simultaneously disposing
of the presidential reference made the previous year. In that reference the
president asked the court: "Whether a Hindu temple or any Hindu religious
structure existed prior to the construction of the Ram Janma Bhoomi-Babri
Masjid (including the premises of the inner and outer courtyards of such structure)
in the area on which the structure stood?" The court declined to answer
this question.
In the Faruqui case, the constitutional validity
of Acquisition of Certain Area at Ayodhya Act, 1993 was challenged. The court
upheld the Act but declared Section 4(3) of Act, which provided for abatement
of all pending suits and legal proceedings pertaining to the disputed structure,
to be invalid. This meant the revival of all pending suits and legal proceedings
before the Allahabad High Court. On the Presidential Reference, the court
said it was "superfluous and unnecessary and does not require to be answered".
The judgement pertained to the constitutional validity of the 'Acquisition
of Certain Area at Ayodhya' Ordinance on January 7, 1993 for acquisition of
67.703 acres of land in the Ram Janma Bhoomi-Babri Masjid complex and the
reference made by the president that very day to the Supreme Court under Article
143 of the Constitution.
The government's word
Those who opposed the presidential reference
said the question was 'academic' and 'vague' and did not serve any constitutional
purpose. The Supreme Court asked the solicitor-general to clarify. The solicitor-general
responded with a written statement on behalf of the central government on
September 14 1994. He said the government would treat the finding of the court
on the question of fact raised in the presidential reference "as a verdict
which is final and binding". The government would make efforts to resolve
the controversy by a process of negotiations "in the light of the Supreme
Court's opinion and consistent with it".
The solicitor-general further went on to say
that if efforts at a negotiated settlement did not succeed, "government
is committed to enforce a solution in the light of the Supreme Court's opinion
and consistent with it. Government's action in this regard will be even-handed
in respect of both the communities. If the question referred is answered in
the affirmative, namely, that a Hindu temple/structure did exist prior to
the construction of the demolished structure, government action will be in
support of the wishes of the Hindu community. If, on the other hand, the question
is answered in the negative, namely, that no such Hindu temple/structure existed
at the relevant time, then government action will be in support of the wishes
of the Muslim community". The solicitor-general's statement formed a
part of the record and was taken into account by the court.
The Supreme Court however held that the presidential
reference was "superfluous and unnecessary" in view of its decision
to uphold the validity of the Acquisition of Certain Area at Ayodhya Act,
1993, except Section 4(3).
Central issue
The white paper published by the Centre after
the demolition of the Babri Masjid offers a clue to why the government posed
that question to the Supreme Court: The white paper said: During the negotiations
aimed at finding an amicable settlement, one issue that came to the fore was
whether a Hindu temple had existed on the site occupied by the disputed structure
and whether it was demolished on Babur's orders for the construction of the
masjid. It was stated on behalf of the Muslim organisations, as well as by
certain eminent historians, that there was no evidence in favour of either
of these two assertions. It was also stated by certain Muslim leaders that
if these assertions were proved, the Muslims would voluntarily hand over the
disputed shrine to the Hindus. Naturally, this became the central issue in
the negotiations between the VHP and AIBMAC. This explains the purpose of
the presidential reference..."
Now that the Allahabad High Court has concluded
that there indeed was a temple below the disputed structure, the Union government
is bound by the commitment made before the Supreme Court on September 14 1994.
It now has the answer to the question it posed via the presidential reference
and will be morally and legally bound to live up to its commitment.
Understanding Hindu law
Several commentators who are not clued into
the intricacies of Hindu law have expressed surprise over the high court's
verdict, especially on the juristic rights of deities exercisable through
a 'next friend' and on the court's eventual conclusion that Ram Janma Bhoomi
is the birthplace of Ram.
Of the four title suits decided in the Ayodhya
case, only one filed on behalf of Bhagwan Shri Ram Virajman was accepted by
the court. All the other suits (filed by Sunni Waqf Board and others; Sri
Gopal Singh Visharad and Nirmohi Akhara) were dismissed. In the suit filed
on behalf of Ram, Bhagwan Sri Ram Virajman was the first plaintiff, the second
was Asthan Sri Ram Janma Bhoomi, Ayodhya (the place known as Ram Janma Bhoomi)
and the third plaintiff was Deoki Nandan Agarwal, a retired judge, who became
the 'next friend' of the deities in 1989. Following his demise, T P Verma
and then Trilokinath Pandey were appointed the 'next friend' by the apex court.
K N Bhat, former additional solicitor-general
who represented Lord Ram and the Janmasthan acting through the 'next friend'
Pandey argued that a Hindu deity is a juristic person who can sue and be sued
and can possess properties and that this is well-established through judgments
of the Privy Council and the Supreme Court; that the Janmasthan is itself
a deity; and that the suit is not barred by limitation because the deity (Lord
Ram) is in the position of a perpetual minor. The final outcome depended substantially
on whether the court accepted these points.
The deity's 'next friend'
Quoting from Mukherjea's Hindu Law of Religious
and Charitable Trusts, the plaint said Lord Ram was a 'juristic entity' with
a juridical status. "Its (the deity's) interests are attended to by the
person who has the deity in his charge and who in law is its manager, with
all the powers which would ...be given to the manager of the estate of an
infant heir. This doctrine ...is firmly established". Such a deity, deemed
to be a perpetual minor, can sue through a 'next friend' appointed by the
courts.
As regards Lord Ram's place of birth, the
contention was that Asthan Sri Ram Janma Bhoomi (the place itself) was an
object of worship as a deity and it personified the spirit of the divine.
The asthan (the place) thus had a juridical personality of its own even before
construction of the temple and installation of the idol, which is not necessary
for invoking the divine spirit. Other examples of places sanctified by belief
even though there is no idol are Kedarnath, Vaishno Devi and Gaya.
The plaint also quoted extensively from the
gazetteers to establish the fact that Hindu belief in Lord Ram's birthplace
had been acknowledged by many authorities over several centuries. The evidence
adduced on behalf of these plaintiffs included Ajudhia in Historical Sketch
of Tehsil Faizabad, by P Carnegy, officiating commissioner and settlement
officer. Carnegy states that Janmasthan marks the place where Sri Ramchnadra
was born and goes on to add that "Ajudhia (Ayodhya) is to the Hindu,
what Mecca is to the Mohomedan, Jerusalem to the Jews...". These gazetteers,
written by British officers, are seen as having considerable evidentiary value.
The court said the suit filed on behalf of
the deities was not barred by limitation and that the premises in question
(or any part thereof) were by tradition, belief and faith the birthplace of
Ram. Justice Sudhir Agarwal said the area covered by the central dome of the
disputed structure "being the deity of Bhagwan Ram Janamsthan and place
of birth of Lord Rama as per faith and belief of the Hindus, belongs to plaintiffs
(Suit 5) and shall not be obstructed or interfered in any manner".
Justice Dharam Veer Sharma also concluded
that Lord Ram's place of birth was a juristic person and a deity and that
the ASI had proved that the disputed structure was built after demolition
of a "massive Hindu religious structure". Justice Sibghat Ullah
Khan also opined that Hindus treated/believed that the birthplace of Lord
Ram was situated in that area and granted the place where at present the idol
is kept in a makeshift temple.
Given the eventual outcome of this long drawn
dispute, devotees of Lord Ram owe a debt of gratitude to Deoki Nandan Agarwal,
whose efforts from 1989, when he became the 'next friend', has in many ways
clinched the issue in favour of Lord Ram and Ram Janma Bhoomi.
- suryamedia@gmail.com
