“What about the fundamental act of desecration, the very erection of the mosque?” retorted India's former Chief Justice DY Chandrachud, when asked whether the desecration of the Babri Masjid mosque in 1949 by Hindu groups wouldn't have gone against the community's claims over the site.
"We forget all that happened? We forget that happened in history. 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 you know what, what is really being done by many of these commentators that you have referred to is that you have a selective view of history," said Chandrachud, who was part of the five-member Supreme Court bench headed by Ranjan Gogoi which delivered the Ayodhya judgment, in an interview with Sreenivasan Jain for the Newslaundry and The News Minute.
The Supreme Court had reasoned that while Muslims could not prove exclusive possession of the inner courtyard, Hindus had demonstrated continuous worship and possession of the outer courtyard, where an idol was consecrated in 1949, including structures like the Ram Chabutra. This distinction between the two areas became crucial to the Court's final decision to award the entire disputed site to the Hindu parties while directing the government to provide alternative land for a mosque.
When Sreenivasan Jain questioned why this illegal act of desecration of the outer courtyard didn't weigh against Hindu claims to the site and Muslims who didn't contest the outer courtyard were essentially penalised, Chandrachud said there was archaeological evidence supporting the existence of a temple before the mosque.
"There was adequate evidence from the archaeological excavation. Now, what the evidentiary value of an archaeological excavation...was a separate issue altogether," he said, adding that evidence exists in the form of the archaeological report.
Justice Chandrachud's assertions however run counter to what the SC judgment, to which he himself was a signatory, found.
"But the ASI report has left unanswered a critical part of the remit which was made to it, namely, a determination of whether a Hindu temple had been demolished to pave way for the construction of the mosque. ASI‘s inability to render a specific finding on this facet is certainly a significant evidentiary circumstance which must be borne in mind when the cumulative impact of the entire evidence is considered in the final analysis," the Ayodhya judgment said.
The judgment also noted that 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 and that no evidence is available to explain what transpired in the course of the intervening period.
"Let's face it, ultimately, people who have criticised the judgment want to ignore the fundamental history of the mosque and then look at the more comparative history and selective elements of that history in support of what they postulate...well, the court could have really partitioned the land into two 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," Chandrachud said defending the judgment.
The former CJI then argued that if you are applying a well settled yardstick of what constitutes adverse possession, that possession has to be open. "It has to be continuous, it has to be acknowledged, and it has to be of a stated duration. That was never, that was never established," he said.
Chandrachud said one may agree with the reasons for the judgment. ”But the criticism that the judgment is based on faith and not the record is a criticism of a person who has not read the judgment,” he said.
Watch the full interview here.
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