The Ayodhya title dispute is before the Supreme Court as a civil appeal against the Allahabad High Court’s decision in September 2010. Conventionally, an appellate court must focus on whether the law has been interpreted and applied properly by the lower courts. It is not expected to admit new facts or disturb the factual conclusions reached by the lower court. However, it may exclude inadmissible or correct misread evidence or findings without sufficient factual basis.

Over the past six weeks, the parties in the Ayodhya dispute have focused on the evidence. In turn the court has extensively reviewed the evidence. For example, it has enquired  into whether there is evidence to prove that 19th century Hindus believed that Babri Masjid is Lord Ram’s birthplace. Last week, Sr. Adv. Dhavan appearing for the Sunni Waqf Board took the Bench through several exhibits and witness statements. On four out of five days, he presented arguments relating to the reconsideration of evidence.

As hearings in the Ayodhya dispute enter the final stretch, the Supreme Court’s role as a conventional appellate court will be tested. Not because the court engages with lengthy arguments on constitutional interpretation and values as a constitutional court might, but because it will have to draw sharp lines on the nature of admissible evidence and the probative value of such evidence. The distinction between questions of fact and law in appeals has already been discredited in academic analysis as an unnecessary historical inheritance of the English common law. As the constitution empowers the Supreme Court to do ‘complete justice in any cause or matter pending before it’,  it may expressly disavow the constraints placed on appellate courts and rest its decision squarely on the evidence before it.

For updates of the hearings in the coming weeks, follow us here.

SC Observer Desk