After having examined and dismissed the evidence of the post-independent period, the ASI findings, travelogues, land and revenue records, the five-member bench of the Supreme Court looks at some other evidence to arrive at a verdict.
Is it based on later historical evidence?
Before beginning its "Analysis of title", the verdict observes: "With respect to title, no documentary evidence exists or has been adduced for the period prior to 1860." (emphasis added, page 885)
On the post-1860 events, it says: "The rights which the Hindus claim are based purely on illegal acts: (a) Preventing or harassing Muslims when they proceeded to the mosque to offer namaz; (b) Destroying a part of the mosque in 1934 leading to repairs and the imposition of fines on the Hindus; (c) Desecration of the mosque on 22/23 December 1949; and (d) Demolition of the mosque on 6 December 1992 in violation of the status quo orders of this Court." (emphasis added, page 895)
In its "Analysis of title", the court examines the riots of 1856-57 over the claim of the Hindus to "worship inside the precincts of the mosque", following which a grill-brick wall was built by the British around the Babri masjid to separate the inner and outer courtyards. (page 909)
The verdict then avers: "The grill-brick wall did not constitute either a sub-division of the disputed site which was one composite property, nor did it amount to a determination of title by the colonial administration." (emphasis added page 909)
Immediately after this, two critical observations appear out of the blue, changing the narrative completely:
(i) Talking about the Ramchabutra set up in or about 1857, in close physical proximity to the railing (in the outer courtyard), the court observes: "Essentially, the setting up of Ramchabutra within a hundred feet or thereabout of the inner dome must be seen in the historical context as an expression or assertion of the Hindu right to worship at the birth-place of Lord Ram." (emphasis added, page 909)
(ii) Further: "Even after the setting up of the Ramchabutra, pilgrims used to pay obeisance and make offerings to what they believed to be the 'Garbh Grih' located inside the three domed structure while standing at the iron railing which divided the inner and outer courtyards." (emphasis added, page 910)
Two questions arise from these observations: How did the apex court come to the conclusion that the disputed site was the birth-place of Lord Ram? And, why does the court virtually endorse the Hindu belief that the birthplace was "inside the three-dome structure"?
No explanation is offered here.
It may be pointed out that the "historical context" in the first critical observation is in reference to "an expression or assertion of the Hindu right to worship at the birth-place of Lord Ram", as it makes clear. It should not be mistaken for any admissible historic evidence that the court had found (it did not).
Is it then based on Hindu faith and belief?
The court says very clearly and categorically that this is not so.
At least once after examining the ASI's findings, travelogues etc. in its "Analysis on title" it says: "Title cannot be established on the basis of faith and belief above." (page 908)
And then a few pages down the line in its "Conclusion on title": "The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence." (page 920)
The observations about the birthplace of Lord Ram inside the three domed structure come in between these two statements. But no explanation is given in the "Conclusion on title" either.
The answer has to be found elsewhere.
How does the Supreme Court determine Lord Ram's exact birthplace?
One indication of the court's eventual verdict surfaces early in the "Juristic personality" segment when it observes: "It is true that in matters of faith and belief, the absence of evidence may not be evidence of absence." (emphasis added, page 215)
Then, in "Suit 5: The deities", after having discussed the depositions of "Hindu witnesses" and their cross examinations - during which every conceivable evidence, including the travelogues and scriptures are discussed in detail - the court observes:
"Once the witnesses have deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief... Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshipper." (emphasis added, page 658)
The clincher comes more than 200 pages later while deciding possession of the disputed structure:
"All the evidence indicates that a reasonable inference based on a preponderance of probabilities can be made that there was continuum of faith and belief of the Hindus that the 'Garbh-Grih' was the place of birth of Lord Ram both prior to and after the construction of the wall. The use of the area within the railing by the Muslims was contentious and their access to the inner courtyard was landlocked; the only access being through the two gates to the outer portion and the area which were in the control of the Hindus." (emphasis added, page 885)
From then on, this assumption is taken forward.
Remaining doubts are cleared in the last paragraph of the verdict. It says:
"One of us, while being in agreement with the above reasons and directions, has recorded separate reasons on: "Whether the disputed structure is the birth-place of Lord Ram according to the faith and belief of the Hindu devotees". The reasons of the learned judge are set out in an addendum." (emphasis added, page 929)
Is ownership (title) decided on the basis of possession?
Having given primacy to the Hindu faith and belief, the court proceeds to examine possession of the inner and outer courtyard and deliver its historic verdict in favour of the "deity of Lord Ram" for the entire disputed area.
It is prudent here to pause and ask the question that presents itself: Is examining possession of the disputed site to decide ownership (or title) even warranted or relevant at all?
Here is why. The court has already made the following conclusions and observations, as mentioned earlier:
1. The court found no evidence that the disputed site is the birthplace of Lord Ram, other than faith and belief of the Hindus - which it says is not admissible evidence to decide the title. Therefore, proceeding to decide ownership (title) on the basis of possession would be contradicting the court's own repeated assertions and the ground rule it set for itself.
2. The Babri masjid stood at the site for 464 years as a physical evidence of a Muslim place of worship - from 1528 to 1992 before being demolished by the Hindus.
3. The ASI's excavations found an underlying structure (about which the court said in page 905:"On a preponderance of probabilities, the archaeological findings on the nature of the underlying structure indicate it to be of Hindu religious origin, dating to twelfth century AD") - that is, 400 years before the masjid was built in 1528 - with "no evidence" of what happened in those 400 years; "no evidence" that the underlying structure was demolished to build the masjid or its remnants used to build the masjid. The court has concluded that the ASI findings "cannot" be the basis for deciding the title.
4. The court has also said: (i) "With respect to title, no documentary evidence exists or has been adduced for the period prior to 1860" and (ii) on post-1860 events: "The rights which the Hindus claim are based purely on illegal acts: (a) Preventing or harassing Muslims when they proceeded to the mosque to offer namaz; (b) Destroying a part of the mosque in 1934 leading to repairs and the imposition of fines on the Hindus; (c) Desecration of the mosque on 22/23 December 1949; and (d) Demolition of the mosque on 6 December 1992 in violation of the status quo orders of this Court.."
5. The riots of 1856-57 over the claim of the Hindus to "worship inside the precincts of the mosque" led to a grill-brick wall built by the British to separate the inner and outer courtyard of the masjid. These riots marked the beginning of a series of violent events to wrest control over the site that ended with the demolition of the masjid in 1992.
That is not all.
Proceeding further in the "Analysis of title", the court says: "On a preponderance of probabilities, there is no evidence to establish that the Muslims abandoned the mosque or ceased to perform namaz in spite of the contestation over their possession of the inner courtyard after 1858..." (emphasis added, page 912)
The natural questions that follows then are: How does the Supreme Court then decide to give ownership or title of the disputed site to the Hindus?
Does it not amount to giving legal sanctity to the Hindu faith and belief, which the court says is not admissible as evidence?
Does it not amount to rewarding violation of "the due process of law" and "egregious violation of the rule of law", which is how it describes the 1949 and 1992 incidents?
Does it not amount to condoning violence perpetrated by the Hindus on the Muslims for 136 years to wrest their possession of the masjid (beginning with the 1856-57 riots, damage to the domes in 1934, sneaking in the idols in 1949 and demolition of the masjid in 1992) and punishing the victims (the Muslims) for being dispossessed?
(In Part III, the article will focus on the larger implications of the Ayodhya verdict.)