New Delhi: Muslim parties in the Ayodhya title dispute have a tough row to hoe in discrediting the archaeological report, which had talked about the pre-existence of a structure where the Babri Masjid later stood.
The findings in the ASI report about the pre-existence of a structure gave credence to the claims by the Hindu side that a temple was demolished to build a mosque at the site.
Senior advocate Meenakshi Arora stood up on Wednesday to dispute the findings of the 2003 report of the Archaeological Survey of India (ASI) on the 31st day of hearing of the contentious matter.
She began by questioning archaeology as a science itself. “Archaeology is at best a social science. It is not a natural science like physics or chemistry since its findings cannot be verified and may differ from opinion of one person to another," Arora submitted before the Constitution Bench led by Chief Justice of India Ranjan Gogoi.
Interestingly, the senior lawyer did accept that archaeology will have a bit of anthropology, geography etc but maintained it is like "DNA testing" and not a perfect science.
Her arguments were first countered by Justice Ashok Bhushan. The judge cited the Constitution Bench judgment of 1994 in Ismail Faruqui case, wherein the top court was approached with a Presidential Reference to give an opinion whether a Hindu temple or Hindu religious structure pre-existed on the disputed site.
Justice Bhushan read out the relevant part too: "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 judge questioned Arora: "This is what the Constitution Bench has held. And now you are telling us archaeological evidence is no evidence." To this, Arora replied that she was saying that archaeological evidence at best is “very weak evidence” and cannot be relied upon much.
Subsequently, she also tried to discredit the report by questioning the manner in which it was commissioned by the Allahabad High Court and the way it was submitted.
Arora maintained that the report, which has 10 chapters attributed to an author, had a summary that was not attributed to anybody and no meeting was held among the members of the team to finalise the summary.
But the Bench, also comprising Justices SA Bobde, DY Chandrachud and S Nazeer, did not find favour with her submissions. The court questioned the senior lawyer on how the submissions could be entertained at the stage of appeal when the Muslim parties chose not to raise these objections before the Allahabad High Court at first instance.
"Whatever may have been your objections, however strong it may have been, it cannot be entertained by us...not at this stage," retorted the Bench.
The CJI also told Arora that the ASI report was a Court Commissioner’s report. "Under the CPC, it has become part of the court record. The report could have been only questioned under Order XXVI Rule 10 of the Civil Procedure Code, that too only if the court found it not satisfactory or if any of the parties wanted to examine the ASI members," Justice Gogoi told Arora.
Arora said they had objected to the report in the High Court but were told this will be dealt with later. She added that the objections were, however, never addressed properly.
The Bench, at this, asked Arora to show how and at what stage the Muslim parties raised objections to the ASI's report before the High Court. Arora will argue on Thursday to answer the court's queries.
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