October 10, 2010

Not many constitutions of the world have invested their highest judicial authority with the kind of advisory role that Art. 143 of the Indian Constitution has entrusted to the Supreme Court of India.


Art. 143 (1) reads as follows :


If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.


In the last 60 years since the adoption of the Constitution, there have been just about one dozen issues on which the Central Government has sought the advice of the Supreme Court on some matter.  Generally speaking, it has been about some matter of law.


But in 1993, the Supreme Court was consulted on an important point of fact in connection with the Ayodhya matter.


This provision gives the Supreme Court the discretion, if it is so inclined, to decline giving an opinion.  In this case it actually did so decline.


But in the process it became very clear what Government regards as the most crucial aspect of this controversy.


The reference made to the Supreme Court by the then President has as its operative part, following the preamble, these two paragraphs :


Now, therefore, in exercise of the powers conferred upon me by clause (1) of Art. 143 of the Constitution of India, I, Shanker Dayal Sharma, President of India, hereby refer the following question to the Supreme Court of India for consideration and opinion thereon, namely :


Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi – Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood ?


The Supreme Court, as indicated above, declined to answer the reference. But it recorded in its ruling that the Court had asked the Solicitor General “to take instructions and put in writing the Central Government’s position in this behalf”.


The Supreme Court has said: “On 14th September, 1994, the learned Solicitor General made the following statement in response :


“Government will treat the finding of the Supreme Court on the question of fact referred under Article 143 of the Constitution as a verdict which is final and binding.


In the light of the Supreme Court’s opinion and consistent with it, Government will make efforts to resolve the controversy by a process of negotiations.  Government is confident that the opinion of the Supreme Court will have a salutary effect on the attitudes of the communities and they will no longer take conflicting positions on the factual issue settled by the Supreme Court.


If efforts at a negotiated settlement as aforesaid do not succeed, Government is committed to enforce a solution in the light of the Supreme Court’s opinion and consistent with it, Government’s action in this regard will be even-handed in respect of both the communities. If the question referred is answered in the affirmative, namely, that a Hindu temple/structure did exist prior to the construction of the demolished structure, Government action will be in support of the wishes of the Hindu community. If, on the other hand, the question is answered in the negative, namely, that no such Hindu temple structure existed at the relevant time, then Government action will be in support of the wishes of the Muslim community.”


At least in so far as the High Court judgment is concerned the clincher has been the Report of the Archaeological Survey of India (A.S.I.). This is a Report very painstakingly produced on the directions of the High Court itself.


The Allahabad High Court took cognizance of the above mentioned Reference made by the President under Art. 143 to the Supreme Court, and felt it would be appropriate to ask the ASI to analyse the crucial question posed by the Central Government first by a Ground Penetrating Radar survey and, thereafter by excavation.


The Ground Penetrating Radar Survey had shown up some anomalies. So the High Court directed the ASI to undertake excavations.


The ASI has reported in the last chapter of its report :


“Excavation at the disputed site of Rama Janmabhumi – Babri Masjid was carried out by the Archaeological survey of India from 12 March 2003 to 7 August 2003.  During this period, as per the directions of the Hon’ble High Court, Lucknow, 82 trenches were excavated to verify the anomalies mentioned in the report of the Ground Penetrating Radar Survey which was conducted at the site prior to taking up the excavations. A total number of 82 trenches along with some of their baulks were checked for anomalies and anomaly alignments. The anomalies were confirmed in the trenches in the form of pillar bases, structures, floors and foundation though no such remains were noticed in some of them at the stipulated depths and spots.  Besides the 82 trenches a few more making a total of 90 finally were also excavated keeping in view the objective fixed by the Hon’ble High Court to confirm the structure.”


Summing up its report, the ASI concludes :


“Now viewing in totality and taking into account the archaeological evidence of a massive structure just below the disputed structure and evidence of continuity in structural phases from the tenth century onwards up to the construction of the disputed structure along with the yield of stone and decorated bricks as well as mutilated sculpture of divine coupe and carved architectural members including foliage patterns, amalaka, kapolapali doorjamb with semi-circular pilaster, broken octagonal shaft of black schist pillar, lotus motif, circular shrine having pranala (waterchute) in the north, fifty pillar bases association of the huge structure, are indicative of remains which are distinctive features found associated with the temples of north India.”



 L.K. Advani

New Delhi

10th October, 2010

Leave a Reply

Your email address will not be published. Required fields are marked *