New Delhi: On Monday, the Supreme Court bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari, dismissed as frivolous two public interest litigation petitions (PILs) filed by two different NGOs making a similar plea. Together, they sought that under the supervision of the Archaeological Survey of India (ASI), the artefacts and monuments reportedly discovered during the digging and land levelling in preparation for the temple construction at Ayodhya should be conserved.
The temple construction work had begun on May 11, 2020, following the Supreme Court’s judgment last year deciding the title suit of the disputed site at Ayodhya in favour of the Hindus, and directing a temple to be built through a trust. The foundation-stone laying ceremony for the temple, with the participation of Prime Minister Narendra Modi, is scheduled for early next month. On March 25, a preliminary function took place in Ayodhya with the participation of the Uttar Pradesh chief minister. The bench’s order, coming amidst these events, therefore, requires some analysis.
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Bizarre outcome
The bench did not stop with its dismissal of the two petitions as frivolous. Instead, without even giving an opportunity to the counsel of the petitioners to explain their prayers, the bench saw nothing wrong in attributing motives to the petitioners.
Interpreting the petitions as disguised attempts to “revive” the Ayodhya dispute, which was legally settled by the Supreme Court’s judgment on November 9 last year, the bench imposed costs of Rs 1 lakh each on the petitioners, to be deposited with the Supreme Court Employees’ Mutual Welfare Fund within one month. One of the petitioners’ counsels, Menaka Guruswamy, pleaded with the bench not to impose the fine in vain.
Although the bench orally threatened the petitioners with an inquiry by the Central Bureau of Investigation against them, the order issued is silent on it.
The bizarre outcome of this case is that after denying an opportunity to the petitioners’ counsel to make their preliminary submissions – in other words in the absence of any arguments on the merits of the matter – the bench has come out with a five-pages order, which is very unusual. Had the petitioners been allowed to make their submissions, perhaps, they would have allayed some of the bench’s apprehensions.
Supreme Court of India in New Delhi. Photo: PTI
What went wrong
The petitioners include four individuals from the Samyak Vishwa Sangh, an NGO in Ratnagiri, Maharashtra which is dedicated to the study of ancient caves, monuments, antiquities and artefacts throughout India. It is registered under the Bombay Public Trust Act and the Societies Registration Act. The main petition in Satish Chindhuji Shambharkar and Others v Union of India was filed by these four individuals.
Dr. Ambedkar Bodhi Kunja Foundation, based in Munger, Bihar is another petitioner, which made a similar plea, as it is concerned with the conservation of artefacts which might reveal Buddhist influences during the ancient period.
The petitions of both these organisations had been duly vetted, defects cured, and found in order, by the Supreme Court’s registry.
Yet, according to reports, what infuriated the bench was the petitioners’ claim that the artefacts discovered at the site might belong to an era which was antecedent to the rise of Hinduism. The petitioners’ prayer to ensure the involvement of the ASI in the collection and preservation of artefacts for the sake of posterity further invited the ire of the bench, which concluded – without hearing the petitioners’ counsel – that their intent was to use this fresh litigation route to bring the unanimous verdict of the Ayodhya bench under legal scrutiny all over again.
‘Respect’ for judgments
The bench’s oral comments during the hearing that the petitioners ought to show some respect for the court’s verdicts betrays an erroneous understanding of the court’s processes.
If ‘respect’ for the finality of the Supreme Court’s verdicts is what is expected from the litigants, then there would be no scope for review and curative jurisdictions of the court. On the contrary, if the petitioners had chosen to question a judgment of the court, without invoking its review or curative jurisdictions, the court ought to have examined whether such an exercise had any merits. After all, in the landmark A.R. Antulay case, the Supreme Court’s seven-judge bench accepted his writ petition and recalled its previous judgment as unconstitutional. In this case, however, the petitioners did not aim at a replay of Antulay.
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Behind Supreme Court’s over-reaction
In last year’s judgment in the Ayodhya case, the five-judge bench had found a “preponderance of probable evidence” in favour of the Hindus – rather than the Muslims – on the question of who held the title to the disputed site at Ayodhya. With the foundation stone laying ceremony at Ayodhya being scheduled on August 5, the bench read in the petitioners’ prayers a disguised attempt to revive the controversy over the site’s origins.
In Satish Chindhuji Shambharkar v Union of India, the prayer was that the artefacts and antiquities recovered at the site at Ayodhya be examined and protected under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The Ayodhya site is protected under Section 23 of the Act dealing with compulsory purchase of antiquities, etc, discovered during excavation operations.
The bench acknowledges that under this provision, the archaeological officer has to examine such activities and submit a report to the Centre.
The bench cited the petitioners’ concern that owing to the ongoing digging work, the artefacts and monuments are under grave fear of being damaged and destroyed at the site itself. The order cited one of the petitions as claiming:
“The artefacts are being projected as Shivling and the remains of Hindu culture and religion sans any scientific archaeological research or study. Remnants may have a close link with our pristine culture and literature. Moreover, there is a duty cast upon the State to ‘preserve every monument or place or object of artistic or historic interest of national importance from spoliation, disfigurement, destruction, removal, disposal or export in view of Article 49, which necessitates that such artefacts are required to be protected and preserved.”
The order also refers to the petitioners’ allegation that the ASI, which is duty-bound to preserve and protect the monuments and antiquities, is neglecting its duties in utter violation of Article 29(1) of the Constitution.
Ironically, the bench cites these legal and constitutional mandates regarding the preservation of artefacts, as if it agrees with them, even as it does not articulate a rebuttal of why such claims of the petitioners may be irrelevant in this case.
In Satish Chindhuji Shambharkar, the petitioner pointed out that the Twitter handle of the Shri Ram Janmbhoomi Teerth Kshetra, the trust constituted to manage the temple, had on May 20 published photographs of some artefacts and sculptures supposedly found during the debris removal and land levelling underway at Ayodhya. Annexing reports in the media which raised concerns that these may be destroyed, the petitioner drew the court’s attention to the need to alert the Centre and the ASI.
They also pleaded that the digging and levelling of land should be done under the observation of the ASI, which is the competent authority for the protection and conservation of ancient sites and monuments. The petitioners’ communication to the ASI to intervene under Section 30(1)(i) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, as amended in 2010, had gone unanswered before they filed their petition. The petitioners also alleged that the local authority of Faizabad seemed indifferent to their responsibility to conserve these artefacts.
The petitioners referred to an article in The Tribune, published on May 31, written by Mallepalli Laxmaiah, chairperson, Centre for Dalit Studies, Hyderabad, to support the view that the remains found at Ayodhya had close links with ancient Buddhist culture and literature. They also invoked Article 29(1) of the constitution because, according to them, non-preservation of these artefacts would be an infringement of their fundamental right to conserve culture and script.
It is not as if the Supreme Court’s judgment in the Ayodhya case last year anticipated this issue to come up during the excavation work preluding the construction of the temple, and settled it. Therefore, there was no harm if a subsequent bench took note of such concerns and addressed them.
According to the bench, the PIL filed by the Foundation claimed that there are certain grey areas in the November 9, 2019 judgment delivered by the Supreme Court in the Ayodhya title case, with respect to Act of 1958, which required clarification. Its petition also claimed that some of the 90 trenches were not excavated due to the disputed situation prevalent in 2003, when the ASI carried out excavation at Ayodhya, following the Allahabad high court’s direction. The petition, therefore, prayed that in view of the ‘grey areas’ left in last year’s judgment, further digging of unexcavated trenches may be directed.
Devotees look at a model of the proposed Ram temple that Hindu groups want to build at a disputed religious site in Ayodhya, October 22, 2019. Photo: Reuters/Danish Siddiqui/File Photo
If a petitioner made erroneous submissions, he could have been asked to amend the prayers suitably to enable the bench to consider the relief sought on which even the solicitor general, Tushar Mehta, seemed to agree. According to the bench, Mehta assured that whatever has been found during the digging would be preserved. Mehta, however, justified the imposition of hefty fines on the petitioners to “teach a lesson” to similar petitioners in future.
The bench, however, concluded that the petitioners’ ulterior motive was to start the litigation afresh, while praying for digging of various trenches. The petitioners’ plea that whatever monument at the temple site and artefacts unearthed need preservation is nothing but an attempt to dilute the judgment rendered by the court, the bench averred.
But it is difficult to believe that the very preservation of such monuments and artefacts – with which even the SG was in agreement – could dilute the judgment. If that is so, the Centre should not have hesitated to oppose preservation. But it didn’t.
Frivolous litigation involves the use of legal processes to present an argument without the requisite diligence in researching the relevant law and facts. The petitioners in this case could not be accused of lacking such diligence, even though one of them might be wrong in invoking Article 32 to point out some grey areas in the Ayodhya judgment. The petitioner’s intention in doing so was not to reopen last year’s verdict, which the court cannot be expected to oblige in any case on the basis of the pleadings in this case. Therefore, the outcome of this case leaves an inescapable feeling that the court might have overreacted to these innocuous petitions.
The fact that a legal claim is lost does not imply that it was frivolous. A frivolous litigant takes liberties with facts. The bench’s order shows that it does not dispute the facts cited in the petitions, but has problems only with the so-called motives of the petitioners. Motives are secondary if there is agreement on the relief sought. By imagining non-existent motives, the Supreme Court perhaps declined relief inadvertently where it mattered most: preservation of precious heritage.