Day 32 Arguments: 23 August 2019
Today is the tenth day of final hearings in the Ayodhya appeals. The 2010 Allahabad High Court judgment had distributed the disputed title equally among three parties: the Nirmohi Akhara, Ram Lalla and the Sunni Waqf Board.
Yesterday, senior counsel SK Jain argued that the Nirmohi Akhara is not only claiming shebaitship (management rights of the temple) and possession, but also ‘title’. The bench expressed frustration at the claim of title and warned SK Jain not to contradict his own earlier written statement.
Today, SK Jain will clarify his claims and take the bench through relevant documentary and oral evidence.
The bench assembled at 10.35 AM. SK Jain requested the court for a week's time to present his arguments. Chief Justice Gogoi stressed that the bench had already heard SK Jain argue extensively on the issue of limitation, and directed him to present documentary and oral evidence. He stated that presenting such evidence would probably not take longer than a day and made it clear that the bench was : 'looking forward to crisp, precise and pointed arguments’. SK Jain requested permission to clarify his shebaitship argument.
Nirmohi Akhara contradicts itself?
Chief Justice Gogoi asked SK Jain to first clarify how he could argue against his earlier written statement, referring to the title claim. SK Jain offered to read the plaint in suit number 5 (Ram Lalla) and his written statement to clarify his position. Chief Justice Gogoi warned him, 'you're spending a lot of time proposing what you'll argue, but you're not [arguing].'
SK Jain began to summarise his arguments:
SK Jain submitted that only the Nirmohi Akhara could maintain its suit, unlike Ram Lalla. He stressed that he could maintain his suit independent of the presence of the idols.
Justice Bobde asked whether the idol's suit is maintainable, referring to K Parasaran and CS Vaidyanathan's arguments in suit number 5. SK Jain argued that the Ram Lalla idol is not installed in the Ram Janmabhoomi, but a temple called the Ram Janmabhoomi. Justice Bobde appeared confused and asked what the difference between the two is. SK Jain's argument appeared to be that the idol referenced in suit number 5 is in the city of Ayodhya, but that temple is different from the large city. Justice Bobde did not appear convinced.
SK Jain sought to read the plaint in suit number 5, suggesting that this would clarify his position.
Justice Chandrachud questioned SK Jain's argument. He explained that a shebait cannot make adverse claims to the deity it purports to manage and care for. He emphasised that the shebait could only act in the deity's interests. He asked SK Jain how he could be asking for the dismissal of the deity's suit. 'If suit 5 is dismissed, your claim cannot survive', Justice Chandrachud said.
Justice Bobde also asked SK Jain how he could take a position opposing the deity. SK Jain argued that he is not opposing the deity, but rather the plaintiff DN Agarwal ( the ‘ next friend' of the deity).
SK Jain attempted to dispute Ram Lalla's claim to the outer lands (recall that the dispute is limited to the inner and outer courtyards, not anything beyond it). He cited historical documents, referencing the acquisition and demolition of outer lands. Justices Bobde and Bhushan informed SK Jain that this was not relevant to the present case as the Allahabad High Court had not passed any decree with respect to such lands. SK Jain submitted that it was relevant to the present case because (according to him) Rama Lalla is claiming the outside area also. He submitted that only the Nirmohi Akhara’s name appeared in the historical documents and gazetteers. Therefore only it could argue for the Hindus.
Justice Chandrachud returned to SK Jain's contradictory written statement. He cited how the Akhara claims to 'own' the idols under the main dome and in the outer courtyard. SK Jain tried to argue that the statement was being made in the context of management and did not lay claim to ownership rights.
Justice Chandrachud asked SK Jain whether he was committed to the argument that the idols had been present before the night of 22 December 1949 (recall that the Allahabad High Court judgment held the idols to have been placed under the central dome on that night). SK Jain affirmed that the idols had been present under the central dome for a very long time prior 22 December 1949.
Akhara argues Lord Ram's suit not maintainable
SK Jain returned to the issue of the outer lands. The bench questioned its relevance a second time. Justice Bhushan said that the judgment does not decide on the issue. SK Jain submitted that only the majority opinion had not decided the issue, but that the original plaint had claimed the outer lands and Justice Sharma's opinion had granted this. Justice Bhushan retorted that the majority opinion constitutes the judgment. Justice Chandrachud added that neither K Parasaran nor CS Vaidyanathan had revisited the issue in the Supreme Court and therefore the issue of disputing a claim did not arise.
The reason SK Jain was set on raising the outer lands issue was to argue that suit number 5 is not maintainable. He submitted that Ram Lalla’s next friend had failed to implead parties with respect to the outer lands issue. He stated the technicality that in order for their suit to be maintainable, it requires a rejoinder by impleaded parties.
The bench noted his argument and requested him to move one. Justice Chandrachud pressed him to establish proof of his shebaitship claim, using documentary and oral evidence. Just as he did yesterday, SK Jain submitted that the only Hindu party to dispute the Akhara’s claim was UC Pandey. Justice Chandrachud again asked for evidence to be presented.
SK Jain requested permission to first complete his argument that DN Agarwal's suit (number 5) is not maintainable. Justice Chandrachud directed him to show evidence in support of shebaitship as this was the ‘heart of [the Nirmohi Akhara’s] case’. SK Jain submitted that he would show oral evidence first, before the documentary evidence. Justice Bobde asked that oral evidence be presented first if there was no documentary evidence. SK Jain submitted that there was oral evidence that had not been denied by any party.
Akhara presents evidence of shebaitship
He proceeded to read out witness statements that attest to the Nirmohi Akhara managing various temples at Ayodhya. The statements claim that the Nirmohi Akhara was in possession of both the inner and outer courtyards.
Justice Chandrachud raised the issue of the Ram Chabutra, a structure at the site. According to the Akhara's written statement, it was worshipping at the Chabutra. SK Jain clarified that this was a reference to the 'temple', the 'Ram Chabutra temple'. Justice Chandrachud pointed out that the written statement factually distinguishes between the temple and the Chabutra. SK Jain stated that oral statements are subject to ambiguities.
Justice Nazeer remarked on the nature of the oral evidence being presented. He said that an oral testimony submitted in an affidavit does not carry the same weight as oral evidence given in a witness box. SK Jain pleaded with the bench to empathise with the fact that the Akhara is very poor, and to ‘please understand [its] position’.
SK Jain then cited some documents that claim Nirmohi Akhara mahants were in possession of the temple.
'Did Nihant Singh Fakir have any connection to the Nirmohi Akhara?', Justice Bobde asked. (Recall that Fakir placed an idol of Guru Gobind Singh in the mosque in the 1850s). SK Jain submitted that he did not know whether Fakir was a member of the Akhara, but that the idol Fakir had installed was not connected to the Akhara. He added that Fakir had stollen a 'nishan flag' from the Akhara. He reiterated that the Akhara had possession of the site prior to the incident.
As SK Jain presented evidence, it became evident that his primary proof was negative in nature: no Hindus have contested the Akhara's shebait claim, therefore it is true. Justice Bobde did not appear satisfied with this line of argument. In response, SK Jain submitted that all defendants were allowed to cross-examine the Akhara, when it filed a suit against the former UP CM Kalyan Singh's government acquiring the land. Justice Nazeer asked why parties such as the Superintendent of Police (a defendant in the Akhara’s suit against government land acquisition) would have any reason to cross-examine the Akhara.
The bench rose for lunch at 12.58 PM.
Arguments for the Nirmohi Akhara resumed at 2.16 PM. SK Jain listed key differences between the Akhara's suit and DN Agarwal's (Ram Lalla):
SK Jain stated that the plaintiffs in suit number 5 are 'outsiders' and that the Nirmohi Akhara enjoys 'the support of all the locals'. He cited witness statements given by 90 year old Faizabad residents.
'They want to oust me', submitted SK Jain for the Nirmohi Akhara, referring to the plaintiffs in suit number 5. He submitted that only the Akhara knew the traditions of the temple and how to uphold them. He argued that if the court didn't provide it shebaitship, the traditions of worship at the temple would permanently change.
He read out statements of worshippers who had visited or worshipped at Ayodhya. He was on the sixth statement, of twenty witness statements.
The bench rose at 2.48 PM. Arguments will resume on Monday.