Day 31 Arguments: 22 August 2018
Yesterday, CS Vaidyanathan, the counsel for Ram Lalla, concluded his argument that the disputed site is itself a deity and hence cannot be possessed by anyone.
Today, the court heard the counsel for Gopal Visharad, the plaintiff in suit number 1. He is a lay worshipper seeking maintenance of his right to worship. He approached the court in 1950 after being denied entry to the central dome by State authorities. (Recall that in 1949 a Faizabad magistrate had placed the site under the State’s custodial responsibility, to prevent civil unrest.) As Gopal Visharad is now deceased, he is represented by his son, whose counsel is senior advocate Ranjit Kumar.
After arguments for Visharad concluded, the court heard Nirmohi Akhara’s counsel SK Jain. On 7 August, the court had directed him to present evidence substantiating the Akhara’s claims. Instead of presenting evidence, SK Jain sought to dispute Ram Lala's claims. The bench expressed dissatisfaction and stated that he was contradicting his earlier written statement.
Senior advocate Ranjit Kumar opened arguments at 10.33 am. He read the prayers from the 1950 original suit, which sought that Hindu worship and darshan continue without any interference at the site.
He adopted K Parasaran and CS Vaidyanathan's argument that the site itself is a deity. He argued that as the site is a deity, citizens have a civil right to worship at it and this cannot be curtailed in any manner.
He submitted that the Sunni Waqf Board concedes the ceasing of Friday namaz at the site after 16 December 1949.
Are the statements in the affidavits facts, if the authors were not cross-examined?
Next, he sought to present evidence that had not been considered by the trial court. He presented 14 affidavits, containing the witness statements of 20 persons.
Justice Chandrachud stated that if the persons had not been cross examined before a court, their statements could not be relied upon as facts. He stressed that this applied even if the statements are in the public record (as affidavits).
Ranjit Kumar submitted that cross examination was not conducted as the trial happened long after the written statements were made. Chief Justice Gogoi asked why they had not challenged the dismissal of the affidavits by the trial court. Ranjit Kumar submitted that the affidavits were dismissed in the judgment, not in an interim order.
Kumar read out the statement of Abdul Ghani, who attested that Hindu worship did not cease despite the construction of a mosque. Justice Bobde asked whether Ghani was a Shia or Sunni Muslim. Kumar was unable to respond. He then read the statements of Hasnoor and Ghali Mohammed, both of whom stated that 'Muslims built a mosque on Ram Janmasthan' and that both Hindus and Muslims worship at the site.
He clarified that all the affidavits were filed after the State receiver took over the property in January 1950 under section 145 of the Code of Criminal Procedure.
He continued to read the witness statements from the affidavits which attested that Muslims neither performed namaz at the site after 1950 nor objected to Hindus worshipping at the site.
Justice Bobde inquired whether the Faizabad magistrate who passed the section 145 order had considered these affidavits.
Ranjit Kumar submitted that the Allahabad High Court had considered the affidavits. He added that the affidavits were placed on record after a verification of the persons (Note that he did not state that affidavits were verified by the Faizabad magistrate.).
He began to discuss how an application had been made in the Allahabad High Court to transfer the case out of the Faizabad district magistrate's jurisdiction. He submitted that this application was rejected.
Before he could proceed, Justice Bhushan questioned how the statements in the affidavits could be relied upon as verified facts. Justice Bhushan said that at best, the only fact established is that such statements were made in affidavit.
Ranjit Kumar pointed to section 37 of the Evidence Act, 1872 which lists what in the public record is considered a 'relevant fact' in law. Kumar also submitted that the affidavits were placed on record after an authority verified the identity and the statements of the persons. He added that the persons were all residents of Ayodhya, who had answered a notice published in newspapers.
Justice Bhushan questioned how statements made under section 145 of the Code of Criminal Procedure could be relied upon by a civil court. Ranjit Kumar cited section 35 of the Evidence Act pertaining to judicial proceedings.
Justice Bobde stated that no court could go into whether the statements made in the affidavits are facts, as none of the persons are available for cross-examination.
Ranjit Kumar requested the court to draw an inference from the statements, given the absence of any objections to them by other parties. He request the court to consider the statements in the affidavits, without regarding them as the gospel truth.
Justice Bobde inquired how the affidavits had been placed on record and whether the High Court had cross-examined the persons making the statements.
Justice Chandrachud said that the bench could only deduce that the records were preserved in court under section 145, CrPC. Ranjit Kumar disagreed, stating that the affidavits were taken on judicial record as part of the case that went up to the Allahabad High Court.
Justice Bode asked who had filed the affidavits before the High Court. Ranjit Kumar submitted that he himself had. Justice Bobde asked why he had not made sure the persons were cross-examined.
(The 14 affidavits, containing the statements of 20 persons, all state that the temple was destroyed.) Ranjit Kumar contended that all 14 affidavits were exhibited before the High Court.
Justice Bhushan read from paragraph 120 of the High Court's judgment, which states that the High Court had summoned the affidavits form the Faizabad district magistrate.
Chief Justice Gogoi asked Ranjit Kumar to produce his application for placing the affidavits as evidence before the High Court. Further, he asked Kumar what order was passed in reference to the affidavits. Both the Chief Justice and Justice Bobde sought to know who had deposed (testified) that the affidavits are legitimate.
At this point, Kumar placed historical exhibits from the 19th century before the court. He sought to establish that the site was referred to as the Janmasthan (birthplace) at least 100 years before the suit was filed.
He discussed a 1850s dispute that references the presence of the Chabutra. He referred to a complaint against Nihant Singh Fakir, a Sikh who entered the mosque, placed an idol of Guru Gobind Singh inside the mosque and began to worship it. The complaint was filed on 1 December 1858 by the Muezzin of Babri Masjid (Syed Mohammed Khatir). On 6 December 1858, Fakir appeared in court. The plaint references the Chabutra.
He continued to take the court through evidence. He referred to the 14 May 1877 report of the Deputy Commissioner, which recorded no objection to the second door at the site being opened in the interest of public safety.
He submitted that the plaintiff's right to worship dates back to the 1850s since the installation of the railing and the opening of the door. He submitted that darshan continued to took place until the filing of the suit.
Chief Justice Gogoi inquired about whether exhibits 18 to 34 had been examined by the Allahabad High Court to determine whether worship had continuously taken place. Kumar pointed to Justice Agarwal's opinion in pages 1361-1415 of Volume 2 of the Ayodhya Matter.
Ranjit Kumar then argued that the plaintiff's right to worship stems from Hinduism itself. He discussed case lawthat held that a wide range of forms of worship was allowed in Hinduism.
The court broke for lunch at 12.57 PM
Ranjit Kumar resumed arguments on behalf of the plaintiff in suit number 1 at 2.26 PM.
He read case law that establishes that not all sects of Hinduism require idol worship. He submitted that Hinduism allows for a wide range of beliefs and philosophies to subsist. He argued that temple worship is a part of Hinduism, and that those who do not worship temples or idols could also be Hindus.
He reiterated his earlier submission that the plaintiff's right to worship persisted for at least a century before he filed his suit.
He read case law on the offer of worship at a Syrian Christian church. Recall that Justice Bobde had asked CS Vaidyanathan (for Lord Ram) yesterday, if a church had ever been considered a juridical entity. Ranjit Kumar did not answer this question and stated that he would restrict himself to the question of the civil right to worship. The judgment in the case found that in Episcopalian churches only the ordained priest can ‘perform’ worship .
Ranjit Kumar concluded his arguments by submitting that the affidavits are credible and that a case can prima facie be inferred from them. He reiterated that all the affidavits state that no namaz was performed after 1934. He requested the court to maintain the status quo and not in any manner restrict the centuries-old, unfettered right to worship of the plaintiff.
At this point, the court briefly heard senior advocate K Parasaran (Ram Lalla). Then, advocate VN Sinha (Hindu Mahasabha) clarified his position from yesterday, namely that he relied on Parasaran and Vaidyanathan's arguments on the existence of a deity to contend that the lands and soil of the site were passed on to the State after the British annexation of Oudh. Sinha then requested to file his written statement as a reply after hearing the Sunni Waqf Board argue.
The court granted his request and directed SK Jain to present his documentary and oral evidence. SK Jain represents the Nirmohi Akhara, which is also claiming title to the disputed site. The court had heard him on 6 and 7 August. It had directed him to resume arguments once he had organised his evidence.
Nirmohi Akhara claims both shebait and title.
SK Jain submitted that the Akhara is claiming shebaitship (the rights to manage the temple). He submitted that the shebait is the only one who may claim possession of the title on behalf of the deity.
Chief Justice Gogoi stated that he should limit himself to presenting evidence, as he had already made extensive arguments previously.
Justice Chandrachud stated that if Nirmohi Akhara claimed the shebaitship, it could no longer also claim the title. SK Jain disagreed that the Nirmohi Akhara was claiming title.
He submitted that the Nirmohi Akhara claims possession of both the inner and outer courtyards. He submitted that the other party (Ram Lalla) is not a worshipper, but a 'friend' of the deity. He added that the Ram Lalla suit was filed in 1989.
SK Jain stressed that the Nirmohi Akhara had always been the shebait because it had continuously taken care of the temple. He stated that the Nirmohi Akhara is not a single person, but a group (namely a religious denomination).
Justice Bobde asked if any of the other parties had accepted the Nirmohi Akhara as the shebait in their written statements. SK Jain submitted that only the Sunni Waqf Board and Umesh Chandra Pandey had denied the Nirmohi Akhara’s claim of being the shebait. Pandey is defendant number 10 in suit number 3.
SK Jain proceeded to cite case laws to argue that adverse inference be drawn with respect to Umesh C Pandey’s submission. Justice Nazeer prompted SK Jain to submit and address the issues in Umesh C Pandey’s submission and not solely argue for drawing adverse inference without providing the context.
SK Jain submitted that the plaintiff in suit number 5 (DN Agarwal for Ram Lalla) never makes any reference to the shebait. He further submitted that DN Agarwal had never claimed to be a worshipper, but only a 'friend' of the deity. He argued that Agarwal had not worshipped the deity at Ram Janmasthan as he had belonged to a different sect and alleged that Agarwal himself had admitted this during cross-examination. (Recall that DN Agarwal is deceased and Ram Lalla is currently represented by TN Pandey.)
Justice Chandrachud stated that there are two issues to consider: the juridical character of the deity and who could represent it. He asked if SK Jain was denying the juridical character of the deity. Jain stated that he was not denying the juridical character of the deity. Justice Chandrachud pointed out that this explicitly contradicted the written statement submitted by the Nirmohi Akhara. He asked SK Jain to clarify the argument he was pursuing.
Justice Bobde emphasised that SK Jain was arguing contrary to his own written statement, without amending it.
SK Jain clarified that that the Nirmohi Akhara is claiming shebait rights to manage the deity, which has a juridical character.
SK Jain submitted that the site and deity belong to the Akhara as the shebait. He stated that the Nirmohi Akhara was claiming management and not ownership. Justice Chandrachud interrupted SK Jain to state that 'belonging' implies ownership.
Chief Justice Gogoi asked SK Jain how the bench could allow him to argue against his own written submission. He stated that if SK Jain fails to justify the seeming contradictions, the bench would not hear him.
The Bench rose at 3.57 PM. Arguments will resume tomorrow.