Ayodhya: Why the findings of ASI were not sufficient to establish title to disputed site?

Back in 2002, the Allahabad High Court tasked the Archeological Survey of India (ASI) to file a report on whether the Babri Masjid had been built on vacant land, or whether there existed a structure prior to the construction of the mosque at Ayodhya. The Hindu parties had claimed that the mosque had been built after Mughal emperor, Babur’s commander Mir Baqi demolished an ancient Hindu temple dating back to the reign of Vikramaditya. This claim was contested by the Muslim parties..ASI eventually submitted a report in 2003, concluding that the prior to the construction of the Babri masjid, a temple-like structure existed at the Ayodhya site, although it gave no opinion as to whether this structure was demolished to make way for the mosque or if the mosque was built on its ruins without there being any demolition..The report was relied upon later by the Hindu parties in the appeal challenging the High Court’s Ayodhya verdict before the Supreme Court. The Muslim parties, however, registered substantial objection to the certainty of the conclusions arrived at by the ASI, with Senior Counsel Meenakshi Arora leading the arguments on this aspect..Structured process followed in preparing ASI report in the interest of transparency.At the outset, the Supreme Court was critical of the comparison made between archeological evidence and the frail evidentiary value of handwriting analysis. Senior counsel Arora had argued that, like conclusions derived on the basis of handwriting samples, the Court should be wary to give too much weight to archeological evidence. The Bench disagreed, observing that,.“Underlying this submission is an erroneous appreciation of the knowledge, skills and expertise required of an archaeologist. It becomes necessary to dwell on the process adopted by ASI in conducting the excavation.”.Inter alia, the Supreme Court noted that the ASI excavation, in this case, was conducted under the Allahabad High Court’s supervision, and with adequate representation of members of both Hindu and Muslim communities on the ASI team. In the interest of transparency, the excavation was also conducted in the presence of parties. Further periodical reports were submitted by the ASI to the High Court, all results were placed under lock and seal, two judicial officers were deputed to oversee the work and registers were maintained for day to day work and recovery of findings, the Court noted. In view of these facts, the Bench leaned in favour of the integrity of the ASI findings, remarking that,.“In assessing the report of the ASI, it must therefore be borne in mind that a structured process was followed in the course of excavation in order to ensure that the process of excavation was documented both in electronic and conventional forms. What is excavated and found is a matter of fact. Undoubtedly, the archaeologist has to relate the data which emerges from the excavation to a context.”.Regarding the nature of the science of archeology, the Court proceeded to hold that the ASI findings could not be dismissed altogether by viewing it as conjectural or hypothetical..“The process of drawing inferences from data is an essential element of archaeology as a discipline but to reject this exercise as conjectural and hypothetical would be a disservice both to the discipline and to the underlying process. No submission questioning the independence of the ASI team has been urged by Ms Arora. In this backdrop, the fact the none of the parties called for examination of anyone from the ASI team under the provisions of Order XXVI Rule 10 (2) cannot be ignored.”.Ruins over which Babri Masjid was built not of Islamic origin.In contesting claims that the Babri Masjid had been built after the demolition of a Hindu temple, the Muslim parties had argued that the mosque had been built on vacant land. The judgement makes note that this was the initial position of the Sunni Central Wakf Board..However, while challenging the ASI report, it was argued that the ruins over which the mosque was built did not belong to a Hindu temple, but rather was of Islamic origin. In this regard, it was argued that the ruins were from a pre-existing Kanati mosque (roofless mosque) or an Idgah. The Supreme Court, however, did not find the claim credible, eventually opining that,.“The Idgah defence was hence an afterthought, quite contrary to the pleadings of the Sunni Central Waqf Board. The defence was an attempt to gloss over the initial case that the mosque was built over vacant land. The underlying structure was not of an Islamic origin.“The Muslim parties also contested the ASI findings as regards the ruins in Ayodhya by relying on opinions by other experts who took the view that the disputed ruins in Ayodhya may have been of Buddhist or Jain origin. On this claim, the Bench observed,.“The possible linkages of Buddhist or Jain traditions cannot be excluded. Indeed, in assessing archaeological or historical material one must eschew an unidimensional view. The excavation in the present case does in fact suggest a confluence of civilisations, cultures and traditions.”.Further, reference was also made to certain specific fragments that were found to be of Islamic origin that were recovered by the ASI team. The Court noted that these Islamic fragments had also been mentioned in the ASI report,. “The statement that some of the fragments belong to an Islamic structure has in fact been noticed in the ASI report. The report specifically speaks of those fragments denoted by plates 92-94 which can clearly be associated the Islamic architecture on stylistic ground. Hence, the ASI report delineated those architectural recoveries which belong to Islamic architecture of the sixteenth century.”.All the same, the Court found these factors would not discredit the overall finding of the ASI that the ruins found at Ayodhya were primarily not of Islamic origin. .“Carefully analysing these depositions, the issue essentially is whether this will discredit the overall findings contained in the ASI report. In specialised subjects, experts may and do differ … Even taking the opinion of DW 20/5 and PW 32 that the recoveries may also be consistent with a palace or a Buddhist and Jain structures, the noteworthy point that emerges is that those fragments are of a non-Islamic origin (except for those specific artefacts which have been identified to be of an Islamic origin by ASI, as noted above).” .The Court proceeded to hold,.“… the ASI report has to be read and interpreted in its entirety. It would be unfair to reject the conclusions which have been arrived at by an expert team which carried out the excavation under the orders of the High Court and has carefully analysed the recoveries from distinct perspectives. Yet the report must be read contextually, allowing for genuine divergences that arise on matters of interpretation.“.On other objections to ASI report .On failure to carry out carbon dating and thermoluminescence tests.The Muslim parties had also contested the reliability of the ASI report given that no carbon dating of animal bones or thermoluminescence dating of pottery was carried out to bolster its findings..However, the Bench also took note that an explanation had been included in Justice Agarwal’s High Court judgment explaining the absence of these archaeological tests. It had been noted that carbon dating of the animal bones would be of no use since the bones were recovered from a filling, rather than from a regular layer. As far as thermoluminescence tests were concerned, the High Court judge had observed the facility for the same was not available in Lucknow at that time..“This explanation apart, the deficiency is not sufficient to discredit the report in its entirety“, the Supreme Court added..On usage of word “divine” in referring to sculpture recovered by the ASI.While it had little bearing on its final appraisal of the ASI report, the Supreme Court agreed with an objection made that the usage of the word “divine” by the ASI in referring to a mutilated statue recovered from the site was inappropriate. In this regard, the Bench noted,.“Ms Meenakshi Arora, learned Senior Counsel criticised the use of the expression, divine couple, to depict the recovery reflected in plate 235. The criticism advanced by counsel is not unfounded. The sculpture reflected in the plate is (as the ASI report states) highly mutilated. According to the ASI team, what remains of the sculpture indicates a waist, thigh and foot of a couple. This may well be an imaginative extrapolation of archaeological experience. But, calling it a divine couple is beyond the stretch of imagination.”.All the same, the Court noted that even if this statue was excluded from consideration, there was reasonable basis for an expert to draw an inference that the ruins found on the Ayodhya site were typical of temple architecture..No allegation of malafides against ASI.The Court also took note that it was specifically argued on behalf of the Muslim parties that no bias or bad faith was being attributed to the ASI. In this regard, the judgment states,.“Though bias and mala fides were sought to be attributed to the ASI during the course of the proceedings before the High Court, Ms Arora, learned Senior Counsel has specifically submitted that no case to that effect is being pressed in the present appeals. In fact, when Mr Vaidyanathan attributed a submission of bias or mala fides to Ms Arora with respect to the task undertaken by the ASI, Ms Arora intervened to state that she had not made any submission to that effect.“.ASI findings approved on balance of probabilities .In view of these observations, the Court ultimately dismissed all objections made to the reliability of the ASI report, finding that on a balance of probabilities, the ASI was justified in its findings. The Bench proceeded to express its acceptance of Justice Sudhir Agarwal’s findings in the Allahabad High Court judgment, which had been based on the ASI findings..As a result, the Supreme Court observed that the following conclusions arrived at by Justice Agarwal were worthy of acceptance, in turn leaning in favour of the Hindu parties on the issue of whether there may have been a temple-like structure at the disputed site prior to the construction of the Babri Masjid..The Babri mosque was not constructed on vacant land;The excavation indicates the presence of an underlying structure below the disputed structure;The underlying structure was not of Islamic origin;The foundation of the disputed structure rests on the walls of the underlying structure; andArtefacts, including architectural fragments that have been recovered during excavation have a distinct non-Islamic origin. Though individually, some of the artefacts could also have been used in a structure of Buddhist or Jain origins, there is no evidence of the underlying structure being of an Islamic religious nature. The conclusion which has been drawn by the ASI that the nature of the underlying structure and the recoveries which have been made would on stylistic grounds suggest the existence of temple structure dating back to the twelfth century AD would on a balance of probabilities be a conclusion which is supported by evidence. The conclusion cannot be rejected as unsupported by evidence or lying beyond the test of a preponderance of probabilities, which must govern a civil trial..However, the Court also made it clear that the ASI report should be read with the following caveats:.Though the ASI excavation has revealed the existence of a circular shrine, conceivably a Shiva shrine dating back to the seventh to ninth century AD, the underlying structure belongs to twelfth century AD. The circular shrine and the underlying structure with pillar bases belong to two different time periods between three to five centuries apart.There is no specific finding that the underlying structure was a temple dedicated to Lord Ram.The ASI has not specifically opined on whether a temple was demolished for the construction of the disputed structure though it has emerged from the report that the disputed structure was constructed on the site of and utilised the foundation and material of the underlying structure..Justice DV Sharma of the Allahabad High Court Bench had also relied on the ASI report to arrive at conclusions allied to those of Justice Agarwal. However, Justice SU Khan placed no credence on the ASI report, noted the Supreme Court. The Bench was critical of this aspect, noting that Justice Khan’s observations that contradicted the ASI report are hypothetical and without any basis. .ASI findings not sufficient to establish title to landAs noted above, the Court found that the ASI report was not conclusive on whether the ruins on which the mosque was built was a Hindu temple dedicated to Lord Ram as claimed by the Hindu parties.Significantly, the Court also took note that the ASI has not made any findings on whether any structure was demolished to build the mosque. As per the ASI findings, there was a time gap of about four centuries between the age of the ruins underlying the Babri masjid (dating to back to the 12th century) and the mosque (dating to the 16th century). As stated in the judgment,“Significantly, the ASI has not specifically opined on whether a temple was demolished for the construction of the disputed structure though it has emerged from the report that the disputed structure was constructed on the site of and utilised the foundation and material of the underlying structure.”In view of these aspects, although the Court did not find ground to reject the ASI findings, the report was not sufficient to establish the title of the land in favour of the Hindu parties. In this regard, the Bench concludes in page 907 of the judgment,“A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI. Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries. No evidence has been placed on the record in relation to the course of human history between the twelfth and sixteen centuries. No evidence is available in a case of this antiquity on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-existing structure was demolished for the construction of the mosque. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial.“.[Read the Court’s findings on the ASI report]