Ayodhya Case(Day 6): ‘Mosque built on ruins of Temple not a valid Mosque under Shariat law’ submits advocate for Ram Lalla

Senior Advocate CS Vaidyanathan resumed his arguments for Ram Lalla before the 5-Judge Constitution bench headed by Chief Justice of India, Justice Ranjan Gogoi. Vaidyanathan referred to various books and travelogues which describe the city of Ayodhya and also the temples in the city dedicated to Lord Ram.

He stated that earliest document is publication by English traveller William Finch, named ‘Early Travels in India, 1583-1619’ in which he wrote with respect to Ayodhya. Mr. Vaidyanathan submitted that the fact that reference of any such mosque built at Ayodhya is absent in his travelogue is of significance.

Vaidyanathan relied upon a book speaking about demolition of temple and construction of mosque by either Babar or Aurangzeb. The author of the book has narrated what he had heard, not witnessed. However, he submitted that the book is of sufficient antiquity, credibility.

Justice Chandrachud asked Vaidyanathan who allegedly demolished the temple – Babar or Aurangzeb?

Vaidyanathan said that though there is difference of opinion on who demolished it, and also on whether it has been demolished twice, first time by Babur then later by Aurangzeb, but it is clear it was demolished before 1786.

He further said that it is doubtful that the structure was built by Babur, but it is clear that the structure came up at the place which is believed by Hindus to be birthplace of Lord Ram.

Justice Bobde asked the counsel when was the structure called Babri Masjid for the 1st time?

Vaidyanathan said that it was called Babri Masjid for the 1st time in 19th century. There is no document of earlier than 19th century which refers to the structure as Babri masjid.

When Justice Bobde asked whether Baburnama is silent on the whole thing? Vaidyanathan said, Yes, it’s silent. Babar ordered his military commander to build it.

Justice Bobde further inquired whether there was any evidence of the command.

Inscriptions on which substantial doubt has been cast are the only evidence Mr. Vaidyanathan said.

Senior Advocate Rajeev Dhavan, counsel for Sunni Waqf Board, intervened saying that Baburnama is silent because the pages of Baburnama referring to this episode are missing.

Mr. Vaidyanathan then stated that it is difficult to record finding that the structure was built by Babur, however, what is important is that at the place of Janmasthan, another structure has been put up, either by Babur or Aurangzeb.

Mr. Vaidyanathan referred to the work of Montgomery Martin a British surveyor of 19th century who found that inscriptions suggest that the mosque was built by Babur. The book Montogomery in 1838, made the first reference to the mosque having been built by Babur.

Mr. Vaidyanathan referred to the documents which record that pillars of the mosque have pictures which are non-Muslim and could have been taken from the temple.

Mr. Vaidyanathan submitted that these works are being relied upon by him not to establish historical facts like dates, names etc. but to establish the way the people lived, their faith and their belief of people and religious significance the place holds to them.

Mr. Vaidyanathan relied on a document from 1854 – The Gazetteer of Territory under East India Company quoting that “Close to the town on the east, are the extensive ruins said to be those of the fort of Rama, Hero of Ramayana”. He thereby submitted that due to existence of the ruins, the site cannot be disputed.

There are three mosques on the site of three Hindu shrines, Mr. Vaidyanathan said.

Reports of Archaeological Survey of India (1862-1865) by Alexander Cunningham were relied upon by Mr. Vaidyanathan.

Mr. Vaidyanathan submitted that Muslims have destroyed numerous temples. 1st temple known to succumb at hands of a Muslim ruler is temple at Ram Janmbhoomi. And, the oldest piece of archaeological evidence is usage of black pillars in the mosque which are originally from temple which was destroyed.

Justice DY Chandrachud observed that there has been influence of Hinduism, Buddhism, Jainism, Islam, there has not been dominance of any one throughout.

Mr. Vaidyanathan said there has been different influences in different phases, starting with Hinduism followed by Jainism, Buddhism and then Islam, but people’s belief in Lord Ram has continued throughout all the phases. Continuous worship has remained unaffected by these influences. Persistent worshipping shows belief and faith of Hindus.

He stated that it is believed by general consensus that the mosque was built in place of temple.

He said that the disputed area is hardly 10,000 square feet, it cannot be divided into 3 portions, and they are against that part of the Allahabad High Court Judgement.

Mr. Vaidyanathan stated that in 1945 a suit pertaining to conflict between Shias and Sunnis regarding the disputed site was filed by Shia Central Waqf Board. The plaintiff had contended that during the era of Babur beautiful masjid was constructed at the birthplace of Lord Ram.

Justice Bobde asked what was the stance of Sunnis in that dispute?

Mr. Vaidyanathan submitted that the contention was not objected by the Sunnis and the suit was later dismissed.

Mr. Dhavan said that was a 1945 suit, and it does not affect the 1989 suit.

Mr. Vaidyanathan further submitted that under Muslim law it is unlawful to build mosque on illegally acquired land. He said that it has not been proved that land on which the mosque was built belonged to Babur.

He added that divinity of place of birth is a belief, and prior existence of temple is a fact. Since mosque was built on ruins of temple it cannot be a valid mosque, being contrary to Shariat law itself.

Mr. Dhavan submitted that sanctity is placed on Chabootra which came up later, and temples built around a mosque do not make a mosque invalid, is not prohibited under the Shariat law.

The Contentious Issue Is Relating To Ram’s Birth Place, That Is Not Negotiable”: CS Vaidyanathan

At the outset of the Ayodhya hearing on Wednesday, it was contended that in view of Order VIII Rule 4 of the CPC, the instant dispute being in the nature of a representative suit, no part of the claim could be abandoned and no compromise could be effectively recorded unless the Court has given notice to all persons so interested. The Supreme Court five-judge bench had assembled to decide on the reference of the Ram Janmabhoomi-Babri Masjid dispute for mediation.

Justice Ashok Bhushan clarified that the said provision would apply in the event of court proceedings, when the court decided the matter, and not on mediation. “If the Hindus are not ready for mediation, then nobody has the right to negotiate. It is a sentimental issue and there is no position to compromise”, it was insisted.

“When the court orders mediation in a matrimonial proceeding, it is with the understanding that it may result in either divorce or conciliation . The outcome is not in the mind of the court. You are just saying that we can’t compromise so it may be not be necessary…”, interjected Justice S. A. Bobde. “Are you saying it is a failure if it is attempted even before it is attempted? That is not fair. When the court is ordering mediation, we are not led by the assumption that someone will give up something or that someone will get something. We know the dispute is not just about property or an arch of land but about sentiments and faith. Don’t think we are not conscience of it. We are aware of the impact and the gravity of the dispute and its effect on the body politic of this country.

Apart from the law, we are inspired by these factors in ordering mediation- the Mind, the heart and the feelings. We don’t understand how it is being rejected even without attempt…We have also read the history. You don’t have to argue on the history to postpone all this. You know what you are doing…We have no control over what happened in the past, whether there was a temple or a mosque. We can only undo what exists in the present, and that is the dispute!”, continued the judge. Placing reliance on the 2010 apex court decision in M/S Afcons Infra. Ltd, Senior Advocate Rajeev Dhawan (for the Sunni Waqf Board) argued that the consent of the parties is not a prerequisite for a reference to mediation- “Arbitration and conciliation require consent. But in the other forms of ADR, like Lok Adalats, it is not required.

The Nature of the mediation process is not affected by an agreement of the parties or the lack of it. It is not binding, so you are still free” “It is not necessary for the court to formulate the terms of settlement. Your Lordships may merely describe the nature of the dispute in a sentence or two”, he continued. “As for the selection of the mediator, there could be a well-trained mediator. Or alternatively, the parties may nominate the mediator”, suggested Dr. Dhawan. Justice Bobde added that there could also be a panel as in the case of arbitration. The Senior Counsel advanced that even the original record need not be sent to the mediator, unless the process is under the supervision of a judicial officer. He advanced that the proceeding may be held in-camera, the parties being instructed to not divulge any details.

Agreeing that confidentiality is a mandatory condition, Justice Bobde weighed in, “Now take a case where there is a matrimonial dispute which is sent for mediation. Or a case of partition of property between brothers. When is confidentiality breached- when someone known to the party talks. It is important that it is not printed in the media or commented on while the process is on. A gag order is not our intention or the point. But It should not be reported while the process is on because it is simple to make some comment attributing some motive to someone” Venturing that the concerned counsel ask clients to not make any revelations, Dr. Dhawan pointed out that there may even lie an action of contempt for a publication in respect of an in-camera proceeding if the court has so prohibited. At this point, Justice D. Y. Chandrachud posed a question as to how a compromise between the parties could be effectuated to dispose off the dispute- ” this is a not a dispute between just the parties, but a wider dispute between communities.

How will we bind them?” “You can’t…you will bind when the judgment comes if mediation fails”, conceded Dr. Dhawan. “One point of mediation could be- where? The Hindus on this side or the Muslims on this side? An area has to be considered”, he continued. In the light of section 89(2)(d) of the CPC, which provides that where a dispute is referred for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed, Justice Chandrachud reflected, “The desirability of a negotiated outcome cannot be understated. But what if there is no compromise? That is the issue. For adjudication, it is this side or that side, but not for mediation” On the argument of the proceedings being representative in nature, Justice Bobde noted, “Whether it is mediation or a court proceeding, if a party is recognized as representative of a community, it will bind everybody. If it is good for one, it is good for the other” “Beyond rule 8, if there is a difficulty of non-consensus, it is all between the parties and nobody else”, added Dr. Dhawan. “And parties would include those who they have been allowed to represent”, clarified Justice Bobde.

At the Hindu side, an objection was raised on account of Order XXIII Rule 3B of the CPC, which stipulates that no compromise shall be entered into in a representative suit without the leave of the court and that before granting such leave, the Court shall give notice to all such persons as may appear to it to be interested in the suit. “Suppose there is a decree, it will bind all? You know what happens to a compromise when it is presented to the court- it becomes a decree…After a public notice, we can still appoint those who would represent either side. Will it then not bind those who are not party to the proceeding?..

.A decree passed in compromise is no different from the one passed in judgment. There is no defect or lacuna in the law that it can’t be done!”, observed Justice Bobde. While the other faction- the All India Hindu Mahasabha headed by Swami Chakrapani- batted for mediation, On behalf of the Akhil Bharat Hindu Mahasabha, the need for a public notice was reiterated. Justice Bhushan asserted that that formality applies not at the appellate stage but for deciding the suit, which the Allahabad High Court should have considered.

Opposing a reference to mediation,  advanced that the contentious issue being which is the Ram Janma Sthan, the present matter is non-negotiable. “In a mediation proceedingSenior Counsel C. S. Vaidyanathan, for Ram Lalla,, nobody can agree to some other place as the birth place. An alternative place for the mosque can be considered. We are even prepared to crowdfund it”, he said. “You are assuming that this is not a point of view you can put forth in mediation. You can!”, assured Justice Bobde. Indicating the definition of ‘decree’ in Section 2(2) of the CPC, Senior Advocate Ranjit Kumar (representing Mahant Suresh Das) again argued that if a decree is to be binding, in a representative suit, the question of mediation does not arise. “It doesn’t arise because settlements can’t be effected without involving others? The compromise can’t be made a decree without notice to all?”, asked Chief Justice Ranjan Gogoi.

As Solicitor General Tushar Mehta sought to make submissions for the state of UP, Dr. Dhawan opposed him vehemently, saying that it is “unacceptable”, that the SG appears for the statutory receiver, that the state had initially said that it is not interested in the dispute. “I am not on merits. Even if it appears that there are elements of settlement, the state thinks that considering the facts, the nature of dispute and the possible fall-out, it will not be advisable or prudent to take this path”, submitted the SG.