A statue of Ram is seen after Indian Supreme Court's verdict on the disputed religious site in Ayodhya, Nov 10, 2019. — Reuters

Ayodhya verdict is silent on why Muslims must prove exclusive possession of site – but not Hindus

The Indian court has deprived Muslims of the disputed plot because they couldn’t show exclusive possession before 1857.
Updated 05 Dec, 2019 11:15am

On page 215 of the Ayodhya-Babri Masjid verdict, delivered by a five-judge bench on Saturday, the Supreme Court makes a crucial statement of logic: “It is true that in matters of faith and belief, the absence of evidence may not be evidence of absence.”

But in its final findings, the court contradicted this same logic.

The crux of the judgment that India has awaited since 1949 is that Muslims failed to show unimpeded possession of the disputed site in Ayodhya between 1528, when the mosque was supposedly built by Mughal emperor Babur, and 1857, when, after a clash between Muslims and Hindus, a railing was erected between the inner and outer courtyards at the disputed site. The inner courtyard is where the mosque demolished by Hindutva mobs in 1992 stood. The outer courtyard has several Hindu shrines.

While the judgment strains to point out that the matter was not decided on faith, it places the onus on Muslims alone to prove exclusive possession of the site. There is no similar expectation from the Hindu side. This leaves the impression that the Hindu belief in the site being the birthplace of Ram somehow took precedence over the Muslim claim.

Possession of the site

The judgement spends considerable space analysing two crucial aspects of the legal dispute that began in 1885, when the mahant of the Nirmohi Akhara, an organisation of Hindu ascetics, moved the courts to establish his right to worship at the assumed Ram Janmasthan. First is the report of the Archaeological Survey of India produced on the directions of the Allahabad High Court in 2003. The second is a set of literary and official documents, including the accounts of European travelers and British gazetteers, relating to the disputed site since the 18th century.

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From the ASI report, the court concedes that a structure existed beneath the mosque. It said that a reasonable inference could be drawn on the basis of the standard of proof that governs civil trials that the underlying structure that provided the foundations of the mosque together with its architectural features and recoveries “are suggestive of a Hindu religious origin comparable to temple excavations in the region and pertaining to the era”.

It, however, chose to contexualise this report and state that the ASI did not conclude that a temple had been demolished to build the 16th century mosque. It also pointed to the date of the temple as 12th century, citing the long gap between the date of the temple and the construction of the mosque in 1528.

Having done so, the court said the ASI findings could not be the basis of awarding title in a land dispute, disregarding a crucial point that there was no concrete link between the destruction of the ancient temple and the construction of the mosque.

The court said:

“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.”

Second, it refers to copious records of literary and official nature to show that Hindus have always worshiped at the disputed site on which the mosque stood. This, the court says, was unimpeded in nature, though it qualifies that these records should be handled with circumspection.

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Since neither the Hindu nor the Muslim side were able to show direct and concrete evidence to establish title, the court moves to the question of possession, which is decided on the basis of patterns of worship.

The contradiction in the court’s findings on this subject is stark. It chose to decide the entire dispute on one factor: that the Muslims were unable to show evidence of exclusive possession of the site between 1528 and 1857, because there is evidence for Hindu worship in outer courtyard. It said:

“Hindu worship at Ramchabutra, Sita Rasoi and at other religious places including the setting up of a Bhandar clearly indicated their open, exclusive and unimpeded possession of the outer courtyard. The Muslims have not been in possession of the outer courtyard. Despite the construction of the wall in 1858 by the British and the setting up of the Ramchabutra in close-proximity of the inner dome, Hindus continued to assert their right to pray inside the three-domed structure.”

To break this down into simpler language, the scenario that emerged is this: Hindus had total control of the outer courtyard from which Muslims were excluded. But there was continuing dispute over the inner courtyard where the three-domed mosque stood. Hindus through centuries tried to access this land and offer worship. This means they were trying to wrest it from the Muslims.

While the court concedes that since 1857, Muslims had been offering prayers at the mosque and did not abandon it until 1949 when idols of Ram Lalla were placed illegally under the dome of the mosque, this made no difference to their claim. In fact, for some years after the railing was built in 1857, they might have actually had exclusive possession, borne out by the fact that the Hindus worshiped the sanctum from the outer yard. However, the Muslims’ failure was that they were not able to show exclusive possession of the inner courtyard before 1857, a burden that is not placed on the Hindu side as the court itself concedes that the Hindus’ exclusive possession was confined only to the outer courtyard.

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This is a illogical leap. A Mughal emperor built a mosque in 1528. His descendants ruled the region in which the mosque stood for more than three centuries. The mosque structure existed all through this rule. But the court concluded that the Muslims could not show exclusive possession as the record of their worship produced begins from 1857.

All this when the court says on page 770 that the acts of the parties subsequent to the annexation of Oudh in 1856 form the basis of the legal rights of the parties in the present suits – not events that occurred before that.

The larger question is why the Muslims alone should face the burden of showing exclusive possession of the site prior to 1857 and not the Hindus. The court does not answer this.

This article originally appeared in Scroll.in and has been reproduced with permission.


The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (62) Closed

Jawad Asif
Nov 11, 2019 10:00am
A slap on the face of secular India and also on those muslims in india who keep on defending hindutva rule!!
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Nov 11, 2019 10:23am
Justice in India is 16% blind.
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Nov 11, 2019 10:23am
Because we are second class citizen in India Hindus are not...hindutva rules hindutva wins...
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Nov 11, 2019 10:50am
Downfall of India have begun under Modi/RSS
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Nov 11, 2019 11:13am
It is India's internal matter.
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soumen ganguly
Nov 11, 2019 11:32am
Everything will be taken care of one by one ruined by the invaders.
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Vivek Sinha
Nov 11, 2019 11:53am
And Rise of Pakistan has Started in after Great Leader like IK coming to Power
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Nov 11, 2019 11:57am
@MA, Indian supreme court has lost its independence.
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M Faheem
Nov 11, 2019 11:59am
BJP is turning India to a Hindutva state, which is what Jinnah, Iqbal etc. envisaged eight decades ago.
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Nov 11, 2019 12:00pm
@MA, good for you. But does not feel that you are happy a lot.
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Iqbal Shahazad
Nov 11, 2019 12:01pm
Unfortunatley India is dragging toward total anarhcy, in coming days more and more voilence would spur in india. Multi Religion and Culture country is becoming Fanatic, this would lead toward break, eventually.
Recommend 0
Nov 11, 2019 12:04pm
The Supreme Court has acted as a Party to the dispute not the Judge for the dispute.
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Nov 11, 2019 12:15pm
Shame on the so called largest democracy in world.
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Nov 11, 2019 12:39pm
Muslims were asked to prove because after excavation of the entire site it was found to have remains of a Hindu Temple below the Babri mosque. The main 3 witness were Muslims who were part of excavation team.
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Nov 11, 2019 12:46pm
The point is who told Babur to build mosque in d premise of temple
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Nov 11, 2019 12:56pm
A sham democracy in India.
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Rajvir Singh
Nov 11, 2019 02:01pm
@MA, downfall? I think they will take India to better heights.
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Nov 11, 2019 02:19pm
India was not neither is and will never be secular
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Amir Indian
Nov 11, 2019 03:14pm
@Jawad Asif, how ? What do you know about Ramayan ?
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Gaurav bhardwaj
Nov 11, 2019 03:29pm
Long live India
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Nov 11, 2019 03:53pm
@Iqbal Shahazad, Wakeup...And take a walk...Not a single incidence of violence back in India after the verdict
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Nov 11, 2019 03:56pm
@Neha , Ms. Neha, India was, is and will be Hindu country. Secular country is in indian constitution and this constitution is on papers. Is it also internal matter what the Hindu terrorists and extremists, Narendra Modi, RSS, Shiv Sena, indian government, etc., are doing against the Muslims in India and Kashmir?
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Nov 11, 2019 04:04pm
@Jawad Asif, Why is that only Hindus need to be secular ?
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Nov 11, 2019 04:10pm
If Pakistanis had known how to resolve disputes, Pakistan would have been much better today.
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Nov 11, 2019 04:31pm
I don't understand what is so confusing here. Muslims had to prove the possession of the land since they fought the case under the premise that the mosque was built on an empty land. The Hindus need not prove the possession of the land because they always claimed that a temple stood there which has been proved by the ASI. And regarding the time lapse between 12th and 15th century, no body can prove if there ever stood a big temple that was demolished to build a mosque or if there stood a temple that was already in ruins which was cleared to build a mosque on top of it. But that does not matter since prayers were offered irrespective of it being a big temple or a temple ruin. ASI says there is a huge structure below. It will be definitely analyzed now that the issue is not in court. The government has already announced that the findings and photos from ASI will be published as a book for the public.
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Nov 11, 2019 05:28pm
The reason Muslims alone have to prove exclusive possession of the site is because Muslims abandoned everything and ran away in 1947 and whatever remained had naturally become the property of Hindus. We aren't claiming the Swaminarayan Mandir in Karachi because it has been abandoned by us for all practical purposes as were other temples in Pakistan.
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Nov 11, 2019 05:29pm
@M Faheem, Jinnah is a visionary.
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Nov 11, 2019 05:31pm
Simple reason is Hindus are living here from thousands of years and Muslims are less than 1000 year and hence need to prove. There are another 30,000 such disputed sites and the process is inevitable.
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Nov 11, 2019 05:31pm
@Iqbal Shahazad, India isn't multi-religious and belongs only to the Dharmic faiths that didn't get their own country in 1947.
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Nov 11, 2019 05:32pm
By reading the article and comments I feel India is getting ruined. Is this a good news for Pakistan right?
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Nov 11, 2019 05:34pm
@Iqbal Shahazad, you in Pakistan wish. However no india Muslim given a choice will like to move to Pakistan. They chose India as their country.
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Nov 11, 2019 06:14pm
Tell me Ayodhya is know for what???
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Mansoor Khan
Nov 11, 2019 06:31pm
Modis agenda to promote Hinduism became the agenda of Indian courts too. Bye Bye Democracy in India! The nation is consumed by religious zeal at every level now. Only the Indian people can save it now from becoming an apartheid state.
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Nov 11, 2019 06:38pm
Those who are not in possession have to prove possession. Simple.
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Nov 11, 2019 06:42pm
Hindustan is for Hindus. Muslims already have taken their share of the country. Others are also welcome if they can stay as a guest.
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Nov 11, 2019 07:54pm
@Vivek Sinha, your sarcasm is but the truth for us!
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Lakhkar Khan
Nov 11, 2019 09:17pm
@soumen ganguly, More like radical Hindus running India is depriving minorities from their rights one by one.
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Nov 11, 2019 09:37pm
Because the existence of a temple has been confirmed scientifically ... if you know what that means
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Nov 11, 2019 11:51pm
The Supreme Court verdict has not invoked the brute calculations of majority and minority--the game that politicians of all hues excel at--but by taking recourse to a higher principle, that of equality before the law
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Nov 12, 2019 12:24am
Given the complex circumstances and the failure of the mediation process, the Supreme court has delivered a very balanced judgement in which neither side can claim victory. Lets move on.
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Nov 12, 2019 12:29am
Mate that is how justice system works. Produce evidence, period.
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Nov 12, 2019 12:32am
Separating 44 crore Muslims from India is the reason for current distress for Muslims in India
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Nov 12, 2019 03:26am
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Akil Akhtar
Nov 12, 2019 04:13am
India is doing the same that Israel does to Palestinians.....they are working closely with Israel...
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Akil Akhtar
Nov 12, 2019 04:14am
@Neha , Human rights are not anyone's internal matter .....
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Sir Vicks
Nov 12, 2019 04:38am
Who came to Ayodhya first; Hindus or Muslims? Case closed.
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Ram Gupta
Nov 12, 2019 05:30am
@Sam, Who are "we" you are referring?
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Krishna M. Gupta
Nov 12, 2019 06:38am
Higher understanding is appreciated.
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Nov 12, 2019 07:02am
@Neha , No it is matter of justices
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Nov 12, 2019 07:22am
@Anonymouseee, You talk as if there has been democracy in Pakistan all along! Most of the time, dictator has ruled Pakistan!
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Nov 12, 2019 08:55am
@Neha , no one said that it's not. That's not the point.
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Nov 12, 2019 09:20am
@Neha , East Pakistan was also Pakistan's internal matter.
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Sabir Amin
Nov 12, 2019 09:54am
Every muslim will be telling there children, that the mosque was destroyed against false will of hindutwa extremism rule. History always repeat itself.
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Nov 12, 2019 11:40am
@Sir Vicks, I agree with your statement
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Nov 12, 2019 03:08pm
@Neha , Agree but you cant control the foreign media so let them enjoy.
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Nov 12, 2019 03:22pm
But what does say archaeology science?
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Nov 12, 2019 05:24pm
Simple, as Hindus lived in India long before Muslims lived there.
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Nov 12, 2019 06:44pm
@Sir Vicks, In fact who came to the Sub-Continent first, Hindus or Muslims?.
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Nov 12, 2019 07:25pm
This is India's internal matter. If they are creating communal disharmony and discord among their society they are the ones end up paying for it.
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Nov 12, 2019 09:07pm
@Khan, Do you mean to say in your country it is 100% ?
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K. Srinivas Rao
Nov 12, 2019 09:15pm
It's India's internal matter. Others should not worry about it.
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Bharat Patel
Nov 13, 2019 11:44am
@Khan, you could be right some multiply faster then others. yesterday it was 14%
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