Author: S Gurumurthy
Publication: The New Indian Express
Date: October 3, 2010
URL: http://expressbuzz.com/opinion/columnists/asi-report-was-crucial-to-judges'-deliberations/211869.html
This is the second of a three-part series
on the Ayodhya judgment
The best part of the Ayodhya verdict is the
judgment of Justice Sudhir Agarwal. Though a huge affair running to over 5,200
pages, his is one of the most organised and best-written judgments. One has
only to look at the index he has provided (at p5136-5218) in Volume 21 of
the judgment to get to what one wants - whether it is to know what the decision
was on any of the issues, or to search for any documentary evidence or oral
testimony used or any case law considered. Any reasonably skilled reader of
legal documents may use the index as the key to unravel the judgment in a
couple of days, which might otherwise take a fortnight.
That explains how articles like this appear
in such a short time. It must have taken Justice Agarwal long periods of stress
and labour to produce such a wonderful judicial document. More, to maintain
confidentiality he must have done lots of the work himself. Also for writing
the main judgment, he has analysed minutely all the evidence, documentary,
oral and technical, himself; so that the other judgments just supplement his
where there is agreement. But for his huge effort, it would be extremely difficult
to unravel the Ayodhya verdict. If Justice Khan could write his "very
short" judgment it is thanks to Justice Agarwal writing a very long one.
The Ayodhya verdict is not just a legal affair.
It discusses, frankly, but with sensitivity, the Hindu-Muslim interface based
on historic facts. It also touches upon history, archeology, sociology, religion
and related disciplines. A reading of the verdict will reveal its reach and
depth. So the nation must be grateful to the judges, particularly Justice
Agarwal, for a stupendous work.
The criticality of Justice Agarwal's judgment,
in the overall Ayodhya verdict, is manifest in that, virtually what he has
said has turned out to be the final verdict. This is because, with Justice
Sharma and Justice Khan taking almost divergent positions, to the extent Justice
Agarwal agreed with either of them on any issue his views became the final
view on that issue. Just see the effect of his view on the most sensitive
issue in the Ayodhya case, namely, was a preexisting Hindu temple destroyed
to make way for the mosque?
Even though he agrees that a massive broken
Hindu structure was found under the mosque, Justice Khan does not agree that
any Hindu structure was demolished to build the disputed mosque. But Justice
Sharma is firm that a Hindu temple was indeed demolished to build the mosque.
Justice Agarwal analyses the evidence over some 900 pages (from 3513 to 4415)
and after holding that a Hindu temple predated the mosque at the spot, he
says, on evidence, that "it can safely be said that the erstwhile structure
was a Hindu temple and it was demolished, whereafter the disputed structure
was raised" (p4415). This makes it the Court's view. But, having held
that a Hindu temple existed before the mosque was constructed, Justice Agarwal
was not keen to pursue the demolition issue. But he does. Why? Read on.
He was compelled to do so by the lies of the
experts relied upon by the Muslim parties. Prefacing that, for the purposes
of the case, it was "sufficient" to stop at finding "that the
mosque had been raised" on a pre-existing "massive temple",
Justice Agarwal writes [at p4333], "it would not have been necessary
to tell positively that there existed a massive temple structure, which was
demolished and thereafter the disputed structure was raised".
He then explains why he did that thus: the
statement of so many experts appearing on behalf of the plaintiffs (Sunni
Waqf Board) asserting that "temples in past were never demolished by
then Muslim rulers or invaders from Persia etc, is so blatant a lie"
that he was "reluctant to ignore it without referring to some well-known
historical" account of the demolition of Hindu temples, some "written
by Muslim writers themselves."
Only after that, considering (from p4333 to
p4415) the massive evidence about destroying temples, including at Ayodhya,
Justice Agarwal concluded that a Hindu temple was indeed destroyed to build
the mosque. Yet the visual media kept insisting throughout Sept 30 that the
Court had indeed held that "no temple was destroyed to build the mosque".
So, till now, the people do not know the truth that Justice Agarwal has found;
they only believe as true the lie that the media has telecast.
The critical evidence that became one of the
most contentious issues between the Hindu parties and the Muslims parties
in the court was the Archeological Survey of India (ASI) Report which established
that a massive structure "indicative of the remains which are distinctive
features" of "the temples of North India" existed under the
mosque.
The first point to note was that the ASI was
brought in by the court on its own in 2002, not by any party or the government.
The ASI did the GPR survey and excavation under the orders of the court and
under supervision by two judicial officers appointed by the court, in the
presence of the counsel for the parties.
But the most disgusting part of this critical
exercise, the importance of which to the case is brilliantly captured by Justice
Agarwal (p3869-4333), was the way the Muslim parties attacked the ASI work
in court, including on the ground that the BJP was ruling then, and that the
ASI team did not include sufficient number of Muslims in the excavation work.
This led to the court chiding them for suffixing experts with "Muslim",
"Hindu" or "Christian" (Justice Agarwal p230). But now,
after the verdict, the secularists attack the court for relying on the ASI
report in almost the same language the Muslim parties used to attack the ASI
prior to the verdict!
But the otherwise well-conceived and best-written
judgment badly slipped, in law and in judicial wisdom, on the division of
the disputed site.
That, in the final part tomorrow.