|Babri: order reserved on ASI report
Rizvi Syed Haider Abbas
Milli Gazette Online
Lucknow: The saga around the excavation of the disputed Babri Masjid site by the Archeological Survey of India (ASI) at Ayodhya came to a brief halt through an order passed by the Lucknow bench of Allahabad High court on Feb 3, 2004. The order was delivered by Justice Khem Karan in 21 pages.
The exercise of excavation was resorted to because of the central core issue, yet to be decided by the court, was to find out as to whether the disputed structure was built after demolishing a Hindu temple. The Court had passed two orders on August 1, 2002 and Oct. 23, 2002 ordering the ASI to carry out ground penetrating survey/geo radiology survey (GPR) of approximately 100x100 ft area of the disputed land so as to ascertain the possibility of remnants of some earlier structure.
The ASI, with the help of Tozo Vikas International (Japan) Pvt. Ltd, undertook this exercise and submitted a report to the Court on Feb 17, 2003 indicating as many as 184 anomalies which led the Court to pass suo moto order on March 5, 2003, issuing a commission to ASI to further investigate the matter by excavating the relevant area of the disputed land as indicated in the order and submit a report. The ASI report was tabled before the same bench on Aug 22, 2003. The report ran into two volumes consisting 574 pages.
While passing the order on Feb 3, 2005 the Court found it convenient to refer to the safeguards it propounded before ordering the excavation of the disputed site. It said that considering the sensitive nature of the dispute, the Court on March 5, 2003 had provided certain guidelines to ensure the transparency in the ASI task. The Court, therefore, had permitted the parties or their counsels to be present on the spot during the course of excavation. The Court had also asked the ASI to photograph and videograph the process of excavation and to maintain a record of the
activity. The Court also appointed two experienced judicial officers of Faizabad to act as observers and obtain orders of the court whenever the need may arise.
Following the Court’s directives, a 14-member team of ASI initially headed by Dr. B.R. Mani, superintending archeologist and subsequently by Hari Majhi, director (antiquity) assisted by several officials of the UP PWD and labourers took five months, from March 12 to August 7, 2003, in carrying out the excavation work, and thereafter, submitted a bulky report in two volumes together with 45 site books,12 albums of coloured photographs, 11 video cassettes (VHS), digital photographs on 6 DVD discs, registers of pottery, unsealed bones, architectural objects stored in tin-shed at the excavated site, an individual list of nine boxes containing bones, glazed wares, antiquities etc. in addition to the daily records and antiquity registers.
In order to verify the 184 anomalies pointed out in the GPR Survey Report, the ASI dug as many as 90 trenches, separated from each other by 0.50 M. The depth of each trench ranged from 0.50 to 5.5 meters. This was done after dividing the area into five parts, namely, Eastern, Southern, Western, Northern areas and the Raised Platform. Of the 184 anomalies, 39 were confirmed at specified depth and location, 74 were not found in spite of digging upto the required depth and the remaining 44 could not be probed owing to unavoidable constraints.
The court in its latest order devoted almost three pages to the main objections raised by Sunni Central Waqf Board (SCWB) asking the court to reject the ASI report outright. The SCWB contended, inter alia, that the ASI report should not form part of the evidence before the court. The objections were first raised by the SCWB on Oct 8, 2003 and continued until July 15, 2004. Thereafter, the Hindu side began with its arguments beginning from Aug 9, 2004 which were completed on September 30, 2004. This was followed by rejoinders from the Muslim side which came to an end on Oct 8, 2004.
The Court on Feb 3, 2005 summarised the objections filed by SCWB which had pleaded that the ASI report is one-sided and influenced by certain preconceived theories or notions and that the ASI adopted a selective approach which became evident from the fact that the importance and impact of the discovery of several animal bones having cut marks have been purposely been kept out of consideration, whereas the same should have been scientifically studied and the results taken into consideration. The ASI, despite clear directions from the Court to file all the papers and documents relating to the excavation delayed the filing of certain relevant documents and even destroyed certain notes prepared by its team at the time of study/analysis of various finds/architectural rejects. This is enough to raise grave doubts about the veracity of the report.
The Court also took exception that on a complaint the Court had directed BR Mani not to head the excavation team, in compliance of which Hari Manjhi was deputed to head the team but it is not known as to how BR Mani continued his association with the task of excavation and how he could co-author the report? The Court also took notice about the ASI method of periodisation in terms of stratrigraphy and chronology was not being based on scientific basis and that in absence of concordance of different layers/floors of respective trenches with each other, the basis of the report itself becomes doubtful. The Court also saw that the report is full of inconsistencies and discrepancies and the conclusions therein appear to have been tailored to support a particular theory. The Court took into account that the theory of a massive structure is totally ill-founded because the ASI report is silent on the point as to where were the remaining three walls of the structure if wall No.16 was one of the walls as shown in fig. 23-B on page 42-C of Volume 1 of the ASI report.
The Court devoted about two and a half pages to the contentions forwarded by Siddharth Shankar Ray, former union minister of law, as part of his objections against the report. The Court gave point-wise enumeration about SS Ray arguing that the ASI was asked to excavate the site and report as to whether the disputed structure (Babri Masjid) was raised after demolishing any Hindu temple, but on the contrary, the ASI is silent on the point of alleged demolition of any Hindu Temple and so the report cannot be said to be as per the directions of the Court and deserves to be rejected.
The Court also took into consideration various writers and books referred to by SS Ray like Kalhans Raj Tarangini, India-Archeology in Retrospect edited by S. Sattar Ravi Korisettar, and The Evolution of the Temple by Percy Brown and about how SS Ray could not find substance in the ASI’s theory about the existence of a massive structure in the absence of the other three walls if wall no. 16 was one of the walls of such an structure. SS Ray had contented that the story of the existence of pillar bases which might have supported the pillar to bear the load of a massive structure is totally ill-founded for the simple reason that none of the pillar bases was having a load-bearing foundation nor was it having any alignment with each other nor was it at the same level of the floor. SS Ray contended that the ASI did not apply its mind while preparing the report and has also not exhibited requisite reasonableness which rendered the report "intrinsically erroneous".
The Court also noted the contentions of Abdul Mannan, Zafaryab Jilani, MA Siddiqui and Irfan Ahmad. They had said that there is no firm basis to say that the western wall of the disputed structure was resting on any pre-existing wall, and secondly, even if it is accepted for the sake of argument that it was so, wall No. 16 having niches could have been part of an Idgah or a roofless mosque as the question of a temple construction after the advent of the Muslim rule and acquisition of the land in question was unthinkable. The court order said that it will deal with judicial pronouncements at an appropriate stage.
The Court also took notice of the arguments from the Hindu side which chronicled the Hindu side stand on the ASI report which conceded that the report of the Commissioner such as the report of the ASI in this case is not binding on the Court and has to be looked into in the light of other evidence and that the ASI report cannot be rejected simply on the ground of alleged bias, prejudice, selective approach etc, that too without letting the ASI to explain its position. Krishnamurti, one of the Hindu side lawyers, argued that such a scientific investigation cannot be doubted on the basis of laymen’s views and only experts can be requested to judge the correctness of the report. While supporting the ASI report, Krishnamurty had said that it has never been the case of the objectors that there existed any Idgah or roofless mosque earlier to the site of the disputed structure and so they cannot say now that Wall No. 16 could have been a wall of Idgah or roofless mosque.
The Court devoted the last-five pages of its order on ‘discussion and conclusion’ in which it said that in cases where Commissioners' report relates to disputed facts it may not be practicable for the Court to accept or reject it except in the light of other acceptable material on record. "Whether wall No. 16 said to have been constructed at the end of 12th century AD was the wall of the alleged massive structure or was Idgah wall or roofless mosque are matters which cannot be decided here and now and can be decided only in the light of other evidence on record or that may be brought on record."
"No doubt, the objections taken against the report have to be considered before the ASI report is acted upon. But that situation will arise only when the Court decides the matter finally. It would also not be advisable nor expedient to make any comment at this stage as regards to the correctness or accuracy of the report or as regards to the tenability or otherwise of the objections," said the order.
Commenting on the order, Zafaryab Jilani, counsel for SCWB, said that it is important in the sense that now both parties may have to produce evidence of archeological experts which may be considered by the court as evidence at the time of the final decision for deciding the worth of the ASI report. "The judgement reflects that the objections raised against the ASI report did have substance and they could not be rejected outright and now those objections may be further supported by the evidence of experts who will be produced by us soon," he added.
The report is to be taken after the final arguments which are to begin most likely within one
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