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Does History Matter?

15 October 2010

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(published earlier in The Telegraph (calcutta))

The Ayodhya judgment as a whole implicitly rejects history, writes Sabyasachi Bhattacharya

Undergraduates who have wrestled with the question, what is a historical fact, have got a break. A very high authority has said historical facts do not matter. One of the instructive episodes in the recent Ayodhya judgment of the Allahabad High Court has been the straightforward abandonment of the historical mode of reasoning on the issues before the court and the nation.

One of the learned judges, who wrote the majority judgment, states: “I have not delved too deep in the history and the archaeology,†and his reason is this, “The Supreme Court in Karnataka Board of Waqf vs Government of India, 2004 (10) SCC 779 has held in Para 8 as follows: ‘As far as a title suit of civil nature is concerned, there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions’.†The tendency of the Ayodhya judgment is to endorse a view which represents historical evidence as being of marginal importance. Perhaps this can be called the Ayodhya Doctrine.

Actually, the sentence the learned judge quoted was preceded in the original 2004 judgment of the Supreme Court by a qualification: “The contention of the Appellants that one Arabian saint Mahabari Khandayat came to India and built the Mosque cannot be accepted if it is not substantiated by evidence or records.†So the Supreme Court had questioned unsubstantiated historical claims, not all historical claims per se.

It is not possible to dismiss this incomplete quotation as a matter of detail. This implicit rejection of history is a subtext in the judgment as a whole. We may learn more about the reasons that the learned judges may have had for adopting such a stance when we get the full text of the judgment. But we do have the text of the statement of issues as framed by the court, something like the agenda of inquiry into claims and counter-claims before it, and the detailed gist of judgments on 20 to 30 issues involved in each of the five suits before the court.

Most of those who have commented till now on the judgment have tiptoed around the basic issues out of an anxiety to avoid contempt of court. We have to likewise adopt abundant caution. For the present only a few questions may be raised. Does this judgment mark a departure from the practice of interpreting law in India, since this judgment prioritizes what is posited as the belief of many people over what historical evidence might have to say?

To laymen it appears to be a break from earlier tradition. One may recall the historicist approach developed by the Supreme Court from the 1960s. In some cases involving important shrines the Supreme Court reconstructed the history of a religious institution in order to scrutinize and ascertain the validity of the claims of contestant parties. For example, in the Durgah Committee vs Hussain Ali case of 1961, the court looked into the history of the Ajmer shrine of Moinuddin Chishti right back to pre-Mughal times to decide on the rights of the Sufi Muslim khadims. Earlier on, as historians have shown, there was an even stronger tradition of historicism in the interpretation of law and custom. In the new Ayodhya Doctrine the reversal of this trend is notable.

The second question is whether it is sufficient to declare a point of view as the central belief of a religious community or necessary to look into evidence to establish that it is indeed so. This again is a matter of ascertaining facts of history — either of the past or of contemporary times. On numerous occasions in the past judicial decisions have been based upon fairly extensive inquiry to establish what the practices and beliefs in a religious community or a fragment of such a community were. The Supreme Court has often considered it its duty to ascertain from evidence collected what constituted the essential of religious beliefs. There is a memorable pronouncement in the Supreme Court in 1961 in the case of the khadims of the Chishti sect: “Even practices though religious may have sprung from merely superstitious belief and may in that sense be extraneous and unessential to religion itself†and hence there is need to have them “carefully scrutinized†by the court.

In the Ayodhya case it is not clear if such a scrutiny was instituted. The evidence which led to the following pronouncement of a judge who formed part of the majority judgment is not yet revealed: “The area under the central dome of the disputed structure is the birthplace of Lord Rama as per faith and belief of Hindus.†This is the crucially important pronouncement which needed historical authentication.

There is a third question. The judges in the Ayodhya case appear to have begun with some agenda of investigation when they required in 2003 the Archaeological Survey of India and a particular set of experts to provide evidence. Why was that evidence called for if historical evidence did not matter? The judges inferred different conclusions from the archaeological evidence. Two of them thought that the mosque in question was constructed after demolition of a pre-existing Hindu temple, while another judge thought that the evidence showed that no temple was demolished to build the mosque. It seems that somewhere down the line it was decided that what mattered was what was believed to be the belief of the community in question. That may be a necessary condition to satisfy the validity of a claim, but is the assertion of such a belief a sufficient condition?

The Ayodhya Doctrine, assigning a marginal importance to historical evidence, is likely to be a debated issue and it seems inevitable that there will be contestations in the Supreme Court. If that doctrine wins at the end of the day, perhaps that will mark a major disjuncture from the history of post-Independence practice as well as the pre-Independence tradition of legal interpretation in India.

The author is chairman, ICHR. The views above are his own