Tempers Rise As Ayodhya Hearings Come to A Dramatic End After 40 Days

Raman Swamy

All the oral arguments are over.   Last-minute written applications have been submitted.   Forty days of daily hearings in the monumental Ayodhya dispute – the second lengthiest in the history of the Supreme Court - have come to an end. 

Not surprisingly in a case of this magnitude and significance, the atmosphere inside the courtroom on the final day was super-charged.  With so much at stake, even the most case-hardened legal luminaries were tense and emotional, with occasional outbursts of anger adding to the dramatic proceedings. 

The lawyers representing the various petitioners and respondents in the complex, and sometimes confusing, bunch of appeals against the Allahabad High Court verdict apportioning the disputed land into three equal parts,  had said whatever they could possibly have said over the course of two whole calendar months since day-to-day hearings began in early August.

Now it is up to the five wise men of the Constitution Bench of the last Court of Appeal - Chief Justice Ranjan Gogoi and Justices Sharad Arvind Bobde, Ashok Bhushan, D Y Chandrachud and S Abdul Nazeer -  to untangle the Babri Masjid- Ram Mandir knot and defuse the Ayodhya bombshell with all the knowledge and intelligence they possess.

The final day of hearing on Wednesday resembled a rapid-fire round with all the lawyers given a last-ditch opportunity to take a last shot at boosting their case.  Senior Advocate C. S. Vaidyanathan’s point was that "They have not been able to prove complete ouster or exclusive possession", referring to the Sunni Waqf Board. 

In 1855, he said, they didn't have exclusive possession (of the land under dispute).  And they didn't have exclusive use. Both Hindus and Muslims were in use.   They say the birthplace of Lord Ram is Ram Chabutra in outer courtyard.  But we have shown that Hindu devotees were worshipping on the platform from the railing to the dome.

At this late stage of hearings, the judges were also fully on alert.  They had razor-sharp questions to ask.  Justice Chandrachud:  What is your claim regarding possession post 1855 in the Inner courtyard?

Vaidyanathan:  In 1855 there was a railing put up for sake of law and order. When the devotees could not go beyond the barrier, so a platform was set up and devotees worshipped from there. 

Justice Chandrachud:  So they worshipped from outside, not inside?

Vaidyanathan:  It cannot be seen as a 10 by 10 room, my Lords.  It is Janmabhumi.  Devotees come for darshan.  For darshan you don't have to go inside.

Justice Bhushan:  After 1855, was there any idol there inside the dome in the inner courtyard?

Vaidyanathan:  No my Lords, but devotees were able to have darshan.

Then Vaidyanathan referred to written statement of Sunni Waqf Board in Suit 5 in which the Waqf Board had taken the stand that the land belonged to the State.

Justice Bobde:  State means the Emperor? 

Vaidyanathan:  Yes, this is their case that Emperor Babar himself gave approval for construction of a Mosque and it was built on vacant land.

Vaidyanathan then argued that “their claim is there was Title but that Rights ceased to exist and the Title was extinguished. 

Justice Nazeer:  That is why they have argued on Waqf by virtue of long use.

Vaidyanathan:  Waqf by long use is different from Adverse Possession. (This is a legal term meaning the occupation of land to which another person has title).  

 Vaidyanathan added: According to us, we have continued to offer prayers.  He referred to his pleadings that from 1528 to 1855 there had been no talk of the birthplace of Ram being inside the precincts of mosque.  This disproves the claim of my learned friend (Dhavan) that prior to 1855 both communities used to worship.   There is no record anywhere, no judgment that says that Muslims are the owners.  

Justice Chandrachud:  Mr. Vaidyanathan, you should confine yourself to two submissions - What is your reply to Title claimed and what is your perspective. Please let it be a wrap-up.

Senior advocate Rajeev Dhavan: Are my lordships strictly adhering to the schedule?

The Chief Justice nodded in the affirmative.

Vaidyanathan: I am adhering to my schedule.

Chief Justice:  Don't worry, we will ring a bell. 

Justice Chandrachid:  But you should sum up, Mr. Vaidyanathan.  Just give an overview.

Vaidyanathan begins what sounds like a long submission. 

Chief Justice:  Mr. Vaidyanathan, you should do what my brother judge told you, because your time is up.

Vaidyanathan:  My point is there can't be a mosque when the place was in use by others.

Justice Bobde:  This is regarding waqf by user?

Vaidyanathan:  For waqf by user there has to be exclusive user.   On adverse possession, there has to be ouster of prior owner, possession has to be held adverse to the prior owner and has to be for long time, continuous and exclusive.

Vaidyanathan:  There is an incident where Prophet Mohammed wanted to build a mosque on a vacant piece of land and was informed that it belonged to two orphans.  The Prophet insisted on buying the land rather than accept the offer to use it.   

Dhavan:  I must point out that this is a totally different argument.  Not a reply. 

Chief Justice:  Let us move on to Mr. Ranjit Kumar.  Yesterday you said you'll take only two minutes?

Ranjit Kumar:  I meant two minutes for yesterday, not for today.  I wish to refer to Kailash Mansarovar where the entire mountain is held sacred as a deity.  Whether the disputed structure was valid mosque or not has to be decided as per the tenets of that religion.  The Waqf Board has not conclusively proved their case.  The architecture of the building cannot be used to determine faith.  The question is not about Emperor Babar but they have to prove their case against my pre-existing right of worship. 

Advocate Jaideep Gupta on behalf of Dharam Das, follower of Mahant Abhiram Das begins.  Advocate Sushil Jain, raises an objection.

Chief Justice:  There is no harm giving him five minutes, he has been waiting.

Then Vikas Singh on behalf of All India Hindu Mahasabha, submits a book titled "Ayodhya Revisited".

Rajeev Dhavan raises serious objections, saying “this is a recent publication and cannot be given as evidence”. 

Chief Justice:  Mr.  Vikas Singh, I am keeping this book, I will only start reading it after November, ok? 

Dhavan objects to Vikas Singh referring to Hans Bakker's book.

Chief Justice:  Dr. Dhavan, you have already argued on this, do you recollect?

Dhavan:  I do recollect.  But he doesn't. 

Chief Justice:  How can he remember?  He wasn't here.  We had decided that a thesis written by foreign authors on Ayodhya cannot be entertained.

Dhavan:  Then my Lords should tell him this. 

Chief Justice:  I guess he heard us.

Dhavan:  He didn't, my Lords. He didn't. 

At this point there was a flare-up in the courtroom.  Vikas Singh handed over the book containing a map of the disputed Ram Janamsthan to Rajeev Dhavan.  An infuriated Dhawan tore apart the pages. 

Chief Justice:  "You can shred it further".  Dhavan did so. 

Exasperated, the Chief Justice then asked Vikas Singh to conclude but the advocate persisted that he has more to argue.

Chief Justice: As far as we are concerned, arguments are over.  If you don't stick to schedule, we can just get up and go.

Vikas Singh refers to Govt. of India Act, 1858 in submitting that while it is claimed that the Board of revenue had given a grant in 1860 to certain Muslims, the Board itself was abolished in 1858.   He then refers to a temple in Tirupati to indicate that Hindus go up to the railing to pray to the inner sanctorum under the dome. He submits that in Tirupati and other temples one cannot enter the inner sanctorum.

This incident appears to have been widely reported in the media.  Later, a clarification was issued that Dhavan had the permission of the Bench before tearing it.  According to this version, the Chief Justice had said:  "You do what you want with it”. 

After the pages were torn, interruptions from both sides and the commotion annoyed the judges.  "Decorum has been spoiled, decorum is not maintained. If proceedings continue in this manner, we would just get up and walk out," said the Chief Justice.

The unseemly incident apart, when it came to his turn for final submissions,  Dhavan said:  I will reply to all the arguments that have been made today in a few lines.   As far as Dharam Das is concerned he has not established that he was a shebait nor has he established that his guru was a shebait.  

He added:  As far as Hindu Mahasabhas are concerned, my Lords have had four responses from different Mahasabhas.  There is one defendant Mahasabha,  but now there are four different responses.  I want to know which Mahasabha is being represented? Why are there four contradictory submissions?

He also referred to the tearing up incident.   “There is some controversy going on in social media that I tore pages in court. My lords I had said I wanted to throw it away and my Lord Chief Justice said that I could tear it. So it was with the permission of the Court.

 Chief Jusutice:  Yes, Dr. Dhavan did ask us.  And I said that he may tear the pages, only then he did.

Dhavan:  I am obliged.

Justice Nazeer:   But it has already gone viral by now.

Resuming his submission, Dhavan said the UP Muslim Waqfs Act is the operative Act and it states that the Board has the right to take steps to get back the Waqf properties.

Dhavan read parts of a document he had relied upon during his arguments and to which Vaidyanathan had raised objections on the absis of accurace of translation.  Dhavan said that what had placed before the High Court was a transliteration from Persian.  The translation had been introduced by Justice Agarwal.

Regarding points made by advocate P. N. Mishra, Dhavan submitted that his arguments are not based on knowledge of land revenue.

At this Mishra interjected: I have written books on land revenue and people have referred to it in PhDs.

Dhavan:  Then they shouldn't have.

Justice Chandrachud:  Dr. Dhavan, please do not to make it personal.

Dhavan:  It is not at all personal. I am only correcting the arguments he has made.  All the particular Acts he is relying upon, including 1855, are illegal Acts. How do you claim aid from an illegal act?

Justice Bobde:  Can you elaborate?

Dhavan:  First they had to show Title. They didn't.  They haven't even shown use - except for travellers’ tales.  They have relied upon statements made by persons in the year 2000.  

Dhavan:  They say Babur was an invader, he was a conquerer.  May I remind your Lordships that India was not one country at that time,  but several political entities.  The Sultanate was established in 1200s.

They also refer to religious conversions.  Their pleading is to go beyond the Constitution.  They claim there was only one community, Hindus, who have been historically wronged.  My lords, the majority of the administration under the Mughals was Hindu.  So who coerced who?

 Referring to the 1992 demolition of the mosque, Dhavan submitted: "The building that was destroyed was of Muslims, the right of its reconstruction, its restoration can only be with the Muslims."

He concluded by quoting:  Saare Jahan se acha Hindostan Humara, Hum Bulbule hain iski, ye gulsitan humara, Hindi hain hum, watan hai, Hindostan humara. "This is the spirit of our constitution, my lords".

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Oct 18, 2019

Raman Swamy [email protected]

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