The Allahabad High Court's direction to the ASI to excavate at the disputed site in Ayodhya may constitute a violation of the spirit of the Supreme Court's 1994 judgment.

The five-member Constitution Bench of the Supreme Court heard the contending parties on March 6 on the Central government's plea for vacating its interim order of March 2002 banning religious activity of any kind on the government-acquired land in Ayodhya and directing it to retain the land without letting it be used for any religious purpose. The Bench, comprising Justices S. Rajendra Babu, S.S.M. Quadri, M.B. Shah, Santosh N. Hegde and Doraiswamy Raju, reserved its judgment at the conclusion of the day-long arguments, avoiding any reference to the order passed by the Lucknow Bench of the Allahabad High Court the previous day.

The Lucknow Bench comprising Justices Bhanwar Singh, S.R. Alam and Sudhir Narain, on March 5, directed the Archaeological Survey of India (ASI) to undertake excavation at the disputed site in Ayodhya within a week and complete the process within a month to ascertain whether a temple existed at the place where the Babri Masjid was built. The Bench directed the ASI to apprise it of the progress in the work on March 24, and submit its report within a week of completion of the excavation. The Bench made it clear that excavation should be carried out without disturbing the make-shift Ram temple or affecting the devotees' right to have darshan of the idol of Ram Lalla installed inside. It directed the ASI to employ experts for the job on top-most priority, and asked Tojo India Vikas International (TIVI), a New Delhi-based Canadian company, which had carried out a detailed study of the site using ground-penetrating radars, to assist the ASI. TIVI's advice was that excavation was required to verify its preliminary findings. The Bench approved of TIVI's involvement in the underground mapping of the site and its assistance in the excavation on the basis of its professional claims, according to sources in Lucknow.

Even as the Supreme Court Bench hearing the Central government's plea on March 6 and counsel for the parties to the dispute remained focussed on the merits or otherwise of the plea, doubts remained whether the Lucknow Bench's order could influence the proceedings. Though the question was not raised by any of the contending parties or the Bench, there were apprehensions that the Lucknow Bench's order might have violated the letter and spirit of the Supreme Court Constitution Bench's judgment in Ismail Faruqui vs Union of India (1994) and the interim order of the three-member Bench of the Supreme Court in March last year.

In the 1994 judgment, the Constitution Bench dealt with the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993. The Bench also had to answer the presidential reference under Article 143 on the question whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood.

The majority Judges on that Bench, Justices M.N. Venkatachaliah, J.S. Verma and G.N. Ray, declined to answer the reference saying it was superfluous and unnecessary, as the Bench had upheld the Acquisition of Certain Area at Ayodhya Act, 1993 - barring its Section 4(3), which abated all pending suits and legal proceedings and thereby extinguished judicial remedy. As the title suits stood revived following the judgment, answering the presidential reference was unnecessary, they reasoned.

However, the minority Judges, Justices S.P. Bharucha and A.M. Ahmadi, gave specific reasons why the reference must not be answered, and these reasons are as relevant now as they were then, notwithstanding the fact that they constituted a minority view. They said: "It is not our suggestion that a court of law is not competent to decide such a question. It can be done if expert evidence of archaeologists and historians is led, and is tested in cross-examination... The court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism by one or both sides that it was rendered without hearing them or their evidence."

Does the Lucknow Bench's decision contradict this view? The Lucknow Bench's decision apparently stems from its eagerness to know the truth about one of the issues it had framed during the pleadings by various counsel in the four title suits before it. One of the 20-odd issues framed by the Bench is to determine whether a temple existed on the spot prior to the construction of the Babri Masjid. This issue was suggested by the pleadings of counsel of the three Hindu petitioners in the three suits. The Sunni Central Wakf Board, which had filed the fourth suit against the district administration and some Hindu litigants, had opposed the plea on the ground that it was not relevant to the settlement of the title suit.

However, the Lucknow Bench included this as an issue to be determined. Although it is within the scope of the Bench to order excavation, no one is sure whether archaeological evidence can help determine this issue. Much would depend on the future course that the Bench adopts to deal with the evidence thrown up by the excavation. Will the Lucknow Bench adopt the strict standards of evaluation of such evidence, as suggested by the minority Judges in the 1994 judgment?

The Babri Masjid, a file picture. Although it is within the scope of the Allahabad High Court to order excavation, can archaeological evidence help determine whether a temple existed on the spot prior to the construction of the masjid?

The Lucknow Bench decision has given rise to a curious legal dilemma. Rajeev Dhavan, senior advocate of the Supreme Court and counsel for the Babri Masjid Action Committee, said: "In an adversarial litigation (as the one before the Lucknow Bench), the burden of providing proof lies on the defendant. In this case, it was the Hindu defendant who made the claim that there was a Hindu temple before the construction of the Babri Masjid at the spot where it stood. It is not for the court to devise a procedure to provide the proof. It was an exercise in kite-flying by the defendants; the court seems to have accepted it. Such a procedure will set a dangerous precedent and lead to many petitions with speculative nature coming up before the courts, asking the courts to prove the claims that structures existed beneath the current monuments."

When the Lucknow Bench revealed the proposal to excavate the site last August, even the Vishwa Hindu Parishad (VHP) had opposed it; it later welcomed it only after the Lucknow Bench made it clear that the excavation would not disturb the make-shift temple and the devotees.

Perhaps, what the VHP-BJP-RSS combine is looking for through the excavation is some evidence that could help their temple campaign, even if it is not of great legal value in claiming possession of the disputed land. The Hindu Right is unlikely to give up its claim over the disputed site, even if the excavation does not buttress its theory that a temple to commemorate Rama's birth existed at the disputed site before the construction of the Babri Masjid.

The minority Judges explained in the 1994 judgment: "It leaves us in no doubt that even in the circumstance that this court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt." The minority Judges in 1994 were deterred from giving an opinion on the presidential reference because they were clear that the then P.V. Narasimha Rao government of the Congress(I) would not abide by it, but use it admittedly "to create a public climate for negotiations". They feared that public criticism of such an opinion - arrived at through debatable means - would impair the court's credibility, and therefore they concluded it would be better not to answer the Presidential reference.

"Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it," the minority Judges said in their judgment in 1994. Today, even as the Ayodhya storm is yet to pass, the Lucknow Bench's decision and the Constitution Bench's move to hear the Centre's plea to vacate its March 2002 interim order have introduced an element of uncertainty into the fate of the disputed and the undisputed plots of land in Ayodhya.