Court’s order, ASI survey
I write this letter as a senior advocate in the Supreme Court of India. I also acknowledge the assistance of Akshay Nagarajan in preparing this letter. In the article, “Court’s order and the ASI survey are flawed” (Editorial page, September 4, 2023), certain views have been expressed in the interpretation of the Places of Worship Act, 1991 and the view taken by the Supreme Court in the Ram Janmabhumi judgment. In declining to interfere by passing an order of stay on the Archaeological Survey of India (ASI) Survey in the Gyan Vapi matter, the article swriter argues that the Supreme Court has gone against the “spirit” of its judgment in the Ram Janmabhumi case, particularly the observations rendered therein on the Places of Worship Act, 1991.
The fundamental premise of the article is that the Supreme Court gave a binding declaration of law in the Ram Janmabhumi judgment delivered on November 9, 2019 with reference to the Places of Worship Act, 1991. Another premise which forms the basis of the writer’s view is that the Places of Worship Act, 1991 prohibits any inquiry to ascertain the religious character of any place of public worship as the same would amount to converting it’s religious character.
Both these premises are slippery. First, the Ram Janmabhumi place of worship was excluded from the applicability of the provisions of the Places of Worship Act, 1991 and, therefore, there was no occasion for the Supreme Court to go into this question. Judgments of the Supreme Court are not to be read as Euclid’s theorems. The ratio decidendi of a judgment is the binding declaration of law, which is, that finding without which the final judgment of the Court cannot be justified and, therefore, is the foundation for the verdict. As the law, namely the Places of Worship Act, 1991 makes it clear that the dispute in regard to Ram Janmabhumi was not covered by the said Act, there was no occasion for the Supreme Court to go into the question except as an aside, while dealing with judgment of Justice D.V. Sharma (one of the judges who decided the case before the High Court). Any observation made in that context will not constitute a ratio decidendi but will only be obiter dicta and, therefore, is not a binding declaration of law under Article 141.
Second, the interpretation by the article writer after making reference to various provisions of the Act is open to doubt. What is preserved by the Act is the character of the place of public worship as they existed on August 15, 1947. What the character on August 15, 1947 of this place of public worship was is a matter which is to be ascertained after both the parties adduce evidence thereof.
As the article misconstrues the judgment of the Supreme Court in Ram Janmabhumi, it is necessary to understand what the judgment actually held with respect to the nature of a Hindu religious structure. The judgment merits close consideration of the diverse issues relating to the law of religious and charitable endowments. However, from the article, it appears that select passages of the Ram Janmabhumi judgment are relied upon to demonstrate that permitting an ASI survey would have the effect of converting the religious character of a place of public worship.
Needless to state that a fundamental principle of India’s judicial system is that a judgment must be read as a whole. The Supreme Court in the judgment categorically held that the religious character of a temple or an object which represents a pious purpose never ceases. Once consecrated or worshipped its character as a temple remains notwithstanding the destruction of the idol. In paragraph 148, it is observed as follows: “148… the destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist”
“154… This is also in consonance with the understanding that even where the idol is destroyed, the endowment does not come to an end”.
These observations show that the Supreme Court was conscious that ancient temples and places of religious significance do not lose their character merely because there is an unlawful destruction or demolition by invaders and others. Even if such destruction is caused by natural causes, the character of the endowment will not change. It is important to note that the Supreme Court specifically negated the argument of the Sunni Central Wakf Board that the construction of the disputed structure at the location which symbolised the birth place of Lord Ram extinguished its pious purpose. Even the argument that the idol lost its title by adverse possession was repelled, while recognising the legal status accorded to idols. In other words, once a temple always a temple. This part of the judgment is relevant as the Supreme Court was conscious of religious structures retaining their inherent character despite there being other structures built thereon. The question is one of identifying the true nature and character of a structure.
Implicit in the tenor of the article is the assumption that a survey/excavation to be conducted by the ASI would be a step in furtherance of converting the religious character of the structure. The question is not one of conversion. The question is of identifying its nature and character. Indian jurisprudence has a rich legacy of Indian courts resolving issues between sects and even issues within the same sect regarding the mode and manner of worship. What is prohibited by the Places of Worship Act is the conversion of an existing religious character of a place of public worship into another.
The fear expressed by the writer that the course which the Supreme Court has adopted would endanger other places of worship is not warranted. The issue which has to be considered is whether a believer has the right to worship.
It is stated by the writer that historical wrongs should not be attempted to be corrected today. The question is not one of undoing historical wrongs. The public discourse surrounding such disputes is usually framed in binary terms. These discourses are framed as a majority versus minority dispute. It is not so. In fact, the suits are an assertion of a right of an individual or of a set of believers to worship, which is a civil right, which the civil courts have the jurisdiction to enforce. That is a matter which will have to be decided based on the relevant pleadings and evidence. It would be wholly inappropriate to prejudge the issue or to pre-empt the issue from being decided.
Finally, a disclaimer. I must declare that I had appeared for the deity, Bhagwan Shri Ram Virajman, in the Ram Janmabhumi case, in the judgment which has been referred to in the article. I have also appeared in the Gyan Vapi matter on behalf of the deity in the Supreme Court. The suits and various petitions filed therein are currently pending and I do not propose to opine on their merits as fairness would require.
C.S. Vaidyanathan,
New Delhi
