ASI report not just an opinion, can’t be rejected: Supreme Court in Ayodhya hearing

The bench, headed by CJI Ranjan Gogoi, also comprises Justices S A Bobde, Ashok Bhushan and S Abdul Nazeer.

The ASI report had concluded that there was a massive structure dating back many centuries beneath the ground where the Babri Masjid stood, before it was demolished. Justice Nazeer said the report of the Commissioner followed an inquiry, as laid down in the Code of Civil Procedure. “You have to give more weightage to the report… because it’s nothing but the delegated position of a judge,” Justice Nazeer said, adding that it was “not just an opinion”.

Arora had said that the report was merely “an opinion” and is thus “weak evidence”. The counsel for the mosque side said the report may have come after an inquiry but was still only an opinion, and must be tested under the Evidence Act.

Justice Bobde said the bench is “conscious that both sides are relying on inference”, as there was no eyewitness. “The question is whether they are valid or not vis-a-vis reasonable probability…. We have to see which of this is more valid…” he said.

Arora said the ASI report is “hearsay evidence”, to which Justice Chandrachud replied, “Data can’t speak for itself. Inferences will have to be drawn.” He said it is the inference of “very knowledgeable experts”.

Arora replied that those who gave evidence on behalf of the Muslim side were also experts, and that they had a different view. She urged the court that when there are other inferences possible, the inference arrived at by the ASI should not be the only ones to be considered.

The report, she added, was not substantive evidence.

Senior advocate Shekhar Naphde, also representing the Muslim parties, said the decision of courts in the 1885 suit filed by Ayodhya resident Raghubar Das was that a mosque existed (at the site) and that Hindus had only limited rights. This decision, he said, bound the entire Hindu community — thus, applying the principle of res judicata, they could not raise the plea again. Res judicata means the issue has already been decided by another court between the same parties.

Justice Bobde referred to instances where a person is instigated to file a suit and gets an order which may not be in the interests of his community and asked whether this would bind the entire community.