Ayodhya: Just Hours Left For Final Arguments

Raman Swamy

The Ayodhya hearings have reached the climax. Lawyers on all sides no longer have days - It is now just a matter of hours.

The remaining time allotted for last-ditch arguments in the marathon hearings is - 45 minutes for C. S. Vaidyanathan on behalf of the Deity, 60 minutes for Rajeev Dhavan representing the Sunni Wafq Board and another 45 minutes each for four other counsel.  

Thursday, October 17, is the D-Day as far as talking is concerned. This week is the last opportunity for the senior advocates to summarize the key points they had put forth at great length over the course of last two months of fast-track hearings in the historic case. 

The five judges on the Constitutional Bench will now have to start dictating their final judgment, to be delivered on November 4 - after the Diwali recess. 

The verdict will be announced as promised by Chief Justice Ranjan Gogoi before his retirement in what has been described as a dispute between “civilization identity” and an “existential question”.    

On Monday, Rajeev Dhavan had concluded his arguments for the Sunni Waqf Board.  On Tuesday, K. Parasaran, on behalf of Ram Lalla, was allowed to give specific and succinct counters to Dhavan’s main contentions. 

Parasaran repeated his claim that the Sunni Waqf Board's suit is barred by time limitation. According to him, Sunni Waqf Board could not claim a “continuing cause of action”, as its pleading was only on “continuing injury”.

He argued that the Sunni Waqf Board can only claim “management rights”, and not the “title” to the disputed land, because the “predominant purpose of the site is worship”.   

He said the Sunni Waqf Board cannot claim management rights over the Babri Masjid. Citing the High Court judgment, he says only a properly appointed “Mutwalli” can manage the mosque. He said the Board was not one.  Parasaran argued that the “burden of proof” to show it has the title rested with the Sunni Waqf Board.

Senior advocate Vaidyanathan, who also represents the Shri Ram Virajman, argued that the Sunni Waqf Board is claiming title on the basis of three alternate scenarios:  (i) grant and dedication by Emperor Babur; (ii) dedication by long use;  (iii) adverse possession.  He disputed the claim on all three planks.

Vaidyanathan also sought to dispute the reliability of documents relied upon by the Sunni Waqf Board. In particular, he challenges the translation of an 1865 grant that allegedly mentions Babur's grant. He says that the translation used during the High Court proceedings was different.

Earlier, Dhavan had, in his concluding oral arguments, claimed exclusive possession of the disputed property.  He defended the Sunni Waqf Board's suit by asserting that it is not barred by limitation, under the Limitation Act, 1908.

At one point on Monday, Dhavan had requested more time to finish his arguments. He suggested that the hearings could continue beyond the October 18 deadline set by the Bench.  The Bench told him to complete his submission as soon as possible.  Dhavan also raised objections to “unaccredited journalists”  sitting in the front rows, amongst lawyers. The Chief Justice took note of his remark, but did not pass any orders.

On title and possession, Dhavan argued that the Sunni Waqf Board owned the title, evidence of which was its “continuous possession” of the site through history. He said that not only had the British government recognized Muslim ownership, but so had the Nawab of Awadh. 

Justice Chandrachud inquired about a 1858 plea of adverse possession by the Sunni Waqf Board. He asked Dhavan to clarify whether the Board had argued the following:  If there was a Hindu temple at the site prior to the mosque, then continuous offering of namaz by Muslims granted them the title via adverse possession.  

Dhavan confirmed this argument, while stressing that the Board was not admitting that a temple ever existed at the site. 

He claimed that Parasaran had cited case law “out of context”.  He pointed out that Parasaran could not simply extract references to the Bhagwat Geeta, which is neither ratio decidendi (rule of law) nor obiter dicta (said in passing).  He stressed that precedents cannot be selectively and randomly chosen.

Turning to the Archaeological Survey of India's report, Dhavan disputed the conclusion drawn from it by the counsels for Shri Ram Virajman. He asserted that despite public perception, there is no finding whatsoever in the report that “a temple was destroyed to construct a mosque”.

Dhavan stated he had clearly shown the Sunni Waqf Board “possessed” and “managed” the site. From 1857 onwards recognition was given to the Sunnis by a British grant.  Even prior to 1857, the Nawab of Awadh had recognised Sunni possession.

 He argued that therefore the Sunni Waqf Board's continuous possession of the site was evidence of its ownership of the title. He asserted that continuous possession creates a presumption of title, if there is no better claim over a property. He submitted that no other party had successfully gained possessed the title and that hence it remains with the Sunni Waqf Board.

Justices Bobde and Chandrachud asked Dhavan whether the Board's claim to exclusive possession is diluted by the fact that Hindus enjoyed the right to enter and pray in the outer courtyard?

Dhavan countered this by saying that the Hindus only enjoyed a 'prescriptive' right to pray, which did not transfer to them possession.

Justice Chandarchud observed that there were some documents indicating some Hindus were living in the outer courtyard.

Dhavan turned to the 1885 suit, wherein a Hindu Mahant was denied the right to construct a temple. He argued that this showed that Hindus were denied ownership of even the outer courtyard.

Justice Chandrachud observed that no “declaratory relief for ownership” had been sought by the Mahant. Dhavan replied that praying for permission to construct a temple itself amounts to an assumption of ownership.

Justice Bobde asked whether an owner can give prescriptive rights? Dhavan said that this was possible. 

Dhavan asked rhetorically whether the right to prayer entitles the Hindu parties to ownership. He answered the question himself by asserting that “belief and historical texts alone” cannot confer the Hindu parties with the title.

Referring to the doctrine of lost grants Dhavan argued that the Sunnis had never lost the title. Absence of prayer does not result in loss of title. He said that a title can only be lost if someone else gains adverse possession – which did not happen in this case. 

Dhavan also made a short submission on the importance of documentary evidence versus oral evidence. Referring to the Indian Evidence Act, he stressed that the court must accord greater weightage to documentary evidence. 

He listed out a series of facts, which he claimed the documentary evidence established beyond any reasonable doubt: (i) there was a mosque at the site, it was trespassed in 1934 and 1949, and finally demolished in 1992; (ii) the opposing counsels have failed to establish Lord Ram's precise birthplace; (iii) Hindus had accepted the prescriptive right to pray in the outer courtyard; (iv) only the idols were worshipped by Hindus - there was no general worship of the site; (v) the Ram Janmabhoomi Nyas was established to demolish the mosque.

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Oct 17, 2019

Raman Swamy [email protected]

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