Institute of Legal and Management Studies

Former Chief Justice of India DY Chandrachud has stirred a controversy on the Ayodhya dispute with his remark that the very erection of the Babri Masjid was the fundamental act of desecration.

The Fomer CJI made the observation during an interview with Newslaundry journalist Sreenivasan Jain, excerpts of which were shared on social media. Responding to a question on whether the Hindu parties were accountable for acts of desecration, such as the placing of idols inside the mosque in December 1949, Justice Chandrachud said that the construction of the mosque itself was an act of desecration.

Jain, however, pointed out that the remark appeared to run contrary to the Supreme Court's 2019 Ayodhya judgment, which had expressly noted that there was no evidence to conclude that the Babri Masjid was constructed after demolishing a Hindu temple.

During the interview, Jain asked : "The argument there is, the idea that the inner courtyard was contested was a result of also the Hindus committing illegal acts like desecration and creating disturbance; the fact that the Muslims did not do that in the outer courtyard, they didn't contest it, then becomes almost the ground to punish them. The fact that you didn't put up a fight, while the Hindus did, actually weighs against the Muslims is actually one critical reading of the judgment."

The former CJI responded : "When you said that it was the Hindus who were desecrating the inner courtyard, what about the fundamental act of desecration- the very erection of the Mosque. You forget all that happened? We forget what happened in history?"

Former CJI further said that in the judgment, the Court had found archaeological evidence that there was a temple beneath the Mosque, which was destroyed to build the Mosque.

"Now, once you accept that that happened in history, and we had evidence in the form of archaeological evidence, how can you shut your eyes? So, what is really being done by many of these commentators, that you referred to, is that you have a selective view of history, ignore evidence of what happened beyond a certain period in history and start looking at evidence which is of a more comparative," ex-CJI responded.

Jain pointed out that the judgment itself said that there was no evidence that the underlying structure was demolished to build the mosque. He said that as per the judgment, there was a gap of several centuries between the underlying structure and the mosque.

To this, the former CJI said: "There was adequate evidence from the archaeological excavation. Now, what the evidentiary value of an archaeological excavation is what a separate issue altogether. All that I want to say really is this, there is evidence in the form of an archaeological report."

Jain again reiterated that there was no evidence found that the underlying structure was necessarily demolished to build a Mosque.

CJI remarked that people who criticise the judgment have not read it. "People who criticise the judgment want to ignore the fundamental history of the mosque and then look at the more comparative history and selective history in support of what they postulate. Second, what you are saying that the Court could have partitioned the land and given one side one part and the other side another part, well if people could live in peace, there was no reason for judicial statesmanship," he said.

Jain asked if there is at all any history of desecration of the underlying structure, would that justify the demolition of the mosque?

Former CJI replied: "Not at all. Supreme Court judgment applies conventional yardsticks of determining the adverse possession and it is on the basis of evidence and conventional yardsticks that we have applied and come to the conclusion. The criticism that the judgment is based on faith and not on evidence is a criticism, I dare say, of those who have not read the judgment."

What does the judgment say on whether there was desecration of the underlying structure?

Contrary to what has been said by the former CJI, who is also widely known as the author of the judgment, though the judgment does not mention the name of the author, the Supreme Court had not held that the mosque was built on a temple.

The judgment refers to the ASI report, which suggested that the existence of an underlying structure of the 12th century of Hindu origin under the mosque. But the report is inconclusive as to whether the structure was a temple or whether it was demolished to build the mosque. In fact, the Court notes that because of a long gap in the history of nearly 400 years between the underlying structure and the mosque, it makes it plausible that the structure was naturally destroyed.

It noted: "The conclusion in the ASI report about the remains of an underlying structure of a Hindu religious origin symbolic of temple architecture of the twelfth century A.D. must however be read contextually with the following caveats:

i. While the ASI report has found the existence of ruins of a pre-existing structure, the report does not provide:

(a) The reason for the destruction of the pre-existing structure; and

(b) Whether the earlier structure was demolished for the purpose of the construction of the mosque.

ii. Since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries;

iii. The ASI report does not conclude that the remnants of the pre-existing structure were used for the purpose of constructing the mosque (apart, that is, from the construction of the mosque on the foundation of the erstwhile structure); and

iv. The pillars that were used in the construction of the mosque were black Kasauti stone pillars. ASI has found no evidence to show that these Kasauti pillars are relatable to the underlying pillar bases found during the course of excavation in the structure below the mosque.

The Court said that findings on the title can't be based in law on the archaeological findings arrived at by the ASI: "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."

The "very erection" of Babri mosque was the "fundamental act of desecration", DY Chandrachud tells me. A startling statement -- all the more given the verdict he co-authored clearly says no evidence was supplied to show if the earlier structure was demolished to build a… pic.twitter.com/wyEj7UMgqq