Richard Allen Posner, the great legal scholar and former American judge, once noted that it is better for us to view judges as humans, not as “a Promethean, intent on changing the world, or a saint, devoid of human weaknesses, biases, and foibles.” Former Chief Justice of India, D Y Chandrachud, recently referred to the erection of the Babri Masjid as the “fundamental act of desecration.” Was the Hon’ble Justice only demonstrating his own humanness by saying the exact opposite of what the Babri Masjid judgment had said?
The former CJI is in the news for his views on the desecration in the 16th century of the Ram temple in Ayodhya. Is his assertion right or is it contrary to historical facts and law? What were the Archaeological Survey of India (ASI) findings and why does Justice Chandrachud attach more importance to them today?
Regardless of what political ideologues or even judges say, the dispute in Ayodhya did not begin in 1528 with Babur. It began in 1885 with litigation by one Mahant Raghubir Das over a chabutra that was constructed outside Babri Masjid in the late 1850s. When the British prevented the construction of a temple over the chabutra, Das unsuccessfully litigated his cause again. Each time, the courts would emphasise on status quo, that is, the Muslims would pray inside the Babri Masjid while Hindus had limited rights to pray at the chabutra. In fact, the case was covered by res judicata — disputes finally determined by courts cannot be reopened — but the SC in 2019 judgment made a strange distinction between the inner and outer parts of disputed property.
In its 2019 judgment, the Supreme Court gave importance to belief over other concerns. The court, even while observing that faith is limited to the individual believer, and that it cannot determine a land dispute on the basis of people’s beliefs, eventually gave the disputed land for the construction of a Hindu temple. It did so because some people believed that Ram was born at the disputed site in Ayodhya, although there was no inscription to that effect, neither was it mentioned in Valmiki’s Ramayana or Tulsidas’s Ramcharitmanas. In fact, no historical record prior to the 18th century made such a claim.
In para 788, the five-judge bench had explicitly observed that “while the ASI report has found the existence of ruins of a preexisting structure, the report does not provide: (a) the reason for the destruction of the pre-existing structure; and (b) whether the earlier structure was demolished for the purpose of the construction of the mosque.” On the “desecration” of the Ram temple, this was the categorical finding. Thus, the court did accept that the ASI report (2003) does not prove that a temple, particularly a Ram temple, was demolished to construct the Babri Masjid. It was a huge victory for Muslim litigants and helped the Muslim masses in accepting the verdict without any protest at all. The controversy need not be reopened.
The court went on to even doubt the authenticity of the ASI report when in the same para 788, it said that “since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries.”
The five judges further observed that “the pillars that were used in the construction of the mosque were black Kasauti stone pillars. ASI has found no evidence to show that these Kasauti pillars are relatable to the underlying pillar bases found during the course of excavation in the structure below the mosque.” The court further observed that the title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial.”
The “fundamental act of desecration” is not a historically proven fact. But even if it were, how does it concern a constitutional judge, and more importantly, how does one completely contradict their own judicial pronouncement?
Interestingly, the ASI report is silent on any demolition and does not mention any signs of demolition such as molten lead or burn marks etc. When the ASI was asked in the Allahabad High Court whether the temple was demolished and the mosque constructed, it did not answer the first part.
Most likely, in the opinion of eminent historians, like Irfan Habib, the structures below were not noticeable to the naked eye in 1528. These may have been either underground or in ruins. The ASI report itself states that the alleged pillar bases were constructed across different time periods. Thus, they could not have supported a massive structure of a grand temple at a single point in time. These pillar bases vary in size, shape and alignment. Moreover, some of the pillar bases exist on different floors.
There is, in fact, the possibility that the all important wall 16 belonged to an Idgah or a Qanati Mosque. It could have been a retaining wall or even the foundation of the Babri Mosque itself. Japanese author Ara Matsuo’s well-researched book Wall Mosques: Forgotten Monuments of Medieval Delhi (Tokyo, 1997) gives examples of several such mosques in Delhi from the Sultanate (1206-1526) and Mughal periods. In fact, even the ASI report did not attribute wall 16 to an “old temple” in the main text of the report.
How can Justice Chandrachud forget that the Babri judgment treated only the installation of idols in 1949 and demolition of mosque in 1992 as illegal and “egregious wrong” and not the desecration of Ram temple in 1528? Similarly, he seems to be diluting the judgment in respect of other mosques. The Supreme Court not only rejected the assumption that the Babri Masjid was constructed on a demolished Ram Mandir. It had also rejected the argument that medieval grievances are grounds to rake up new disputes in post-independence India. The apex court had observed that “the Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”
The judgment was categorical in laying down the law that “the historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.” (Para 124)
Judges should speak only through judgments. Unlike politicians, judges are not supposed to justify their judgments. Even if their judgments were wrong, they need not be apologetic about them and cite God’s guidance as the justification of their judgments. Of course, future judges do have the power to overrule them, and the legislature may also overturn their judgments. Let us not revive the debate. It does no good to the country. Let Muslims also come forward and find an amicable solution to Kashi and Mathura, and let Hindus assure them that other mosques will be protected as per the 1991 law.
The author is Vice-Chancellor of Chanakya National Law University, Patna. The views are personal
(Express Archives) 
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