sure win ph Archaeology As Evidence: A Troubling Track Record

Photo: Artwork: Saahil Photo: Artwork: Saahil

Is archaeology an art or a science? How much of the findings of the Archaeological Survey of India (ASI) from an excavation is factual and how much of it is subjective inference drawn from data? Can the credibility and integrity of the ASI as a body be doubted by the court? These were some of the questions the Supreme Court grappled with in the Ram Janmabhoomi-Babri Masjid dispute.

Civil suits claiming the site of the Babri Masjid was Lord Ram’s birthplace had been pending since 1949, when some miscreants had installed idols of Lord Ram in the masjid in the middle of the night and the premises was sealed the next morning by the District Administration. The Babri Masjid was demolished by the right-wing Hindutva forces in December 1992. The Supreme Court gave its final verdict in 2019, deciding the dispute in favour of the Hindu side.

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Under the Indian Evidence Act (now Bharatiya Sakshya Adhiniyam), the opinions of experts in the fields of foreign law, science, art, handwriting or fingerprint analysis can be relied upon by a court. Holding an ASI report to be in the nature of “expert evidence” under the Indian Evidence Act, the Supreme Court said that the weight to be ascribed to the evidence of an expert is to be decided on the nature of the science on which it is based. The Court, in its final judgement, deliberated on whether archaeology could be considered a ‘science’ and finally answered these questions by concluding: “The supposed distinction between science as embodying absolute truth and archaeology as unguided subjectivity is one of degree not of universes. Yet, as in other disciplines of its genre, archaeology is as much a matter of process as it is of deduction. The archaeologist must deal with recoveries as much as the ‘finds’ from them. Interpretation is its heart, if not its soul. Interpretations do vary and experts disagree. When the law perceives an exercise of interpretation it must recognise margins of error and differences of opinion. Archaeological findings are susceptible to multiple interpretations.”

Thus, what emerged is that while it remains open to the parties to challenge the findings of the ASI by bringing expert evidence to counter its conclusions or by cross-examining the ASI officials who prepare the report on the process of arriving at their conclusions, the findings of the ASI can be relied upon by a court “so long as we understand the limits and boundaries of the discipline”.

The Allahabad High Court, while directing the survey of the disputed site in Ayodhya by the ASI, had asked it to ensure that there was equal representation of both Hindu and Muslim communities in the constitution of the ASI team and the labour deputed at the site.

The team led by Ammad Butt, finally secured their first victory with a 2-1 win over Japan and then delivered a decisive 5-1 win against China, to enter the semi-finals. Their final pool match ended in a narrow 2-1 loss to India.

Now, the top four teams have entered the semifinals and the last two teams will have to fight for the fifth spot on the table. India have won all of their five matches. Pakistan are second with two wins and two draws.

It is important to note that the court did not overlook the fact that the ASI was, after all, a body of individuals, and in a charged and divided atmosphere in a dispute involving two religious communities, the fact that these individuals were from one or the other of the two communities would affect the perception of objectivity of the final opinion by the disputing parties.

The ASI excavation was, in fact, carried out in the presence of two serving judges of the district judiciary as court observers, one Hindu and one Muslim. During the survey, though, objections were raised by the Muslim side that despite court directions, the proportion of Muslims in the ASI team and the labourers engaged by them remained minuscule and this reflected in their work. The head of the ASI team conducting the excavation was accused by the Muslim side of bias and was, in fact, replaced by the court, although he remained involved in the preparation of the report. The fact that the ASI’s report found its way into the media even before being filed in court was also made one of the grounds for suggesting that the ASI acted with an agenda.

The Supreme Court gave the ASI a glowing clean chit from any kind of bias. Oddly, the fact that the ASI “is an organization under the Government of India and satisfies all the requisites to be termed as a ‘Department of the Central Government’” was used by Justice Sudhir Aggarwal of the Allahabad High Court as the basis for considering its objectivity and integrity to be beyond question.

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The opinion of Justice Aggarwal was endorsed by the Supreme Court and the ASI was held to be “beyond reproach”. At a time when much criticism has been directed at the institutional compromise in the face of majoritarian governments, the fact that the ASI was considered beyond reproach because it is controlled by the Central Government does not inspire confidence.

Some of the flights of fantasy defying logic that were found in the ASI report were rejected even by the Supreme Court in the Ayodhya judgement, though it, by and large, reposed faith in the ASI’s findings. For instance, fragments of a figurine found in the excavation consisting of only a “waist, thigh and foot” were described by the ASI as a “sculpture of divine couple seated in alinganamudra”, an inference that the court agreed certainly did not follow from the fragment discovered.

Have we learnt anything from our mistakes? Of course not. ASI surveys are being sought by parties in several of the civil suits that have cropped up across the country.

It was also alleged by the Muslim side that the ASI selectively examined evidence discovered during the excavation, and the bones discovered at the site were neither analysed by the ASI nor explained in its report.

Justice Dharam Veer Sharma of the Allahabad High Court, writing about this objection of the Muslim side, said that this could be explained as “The Lords of Ram (sic) Himself used to hunt”. He also floated some theories by way of explanation that make for an interesting read including “saints, cows, parrots etc. attached to a temple are buried in temple compound”. The Supreme Court, however, dismissed these objections, saying “the deficiency is not sufficient to discredit the report in its entirety”.

After a detailed analysis of the long and technical report submitted by the ASI, the Supreme Court accepted the findings of the ASI that in the layers of soil underlying the now-demolished mosque, there was evidence of religious structures having existed in an earlier period, in particular a circular shrine that existed in the 7th to 9th century AD and a more recent structure immediately underlying the Babri Masjid that had been built over this circular shrine around the 12th century. However, the precise question that had been referred to the ASI was whether any temple or structure had been demolished and a mosque constructed over it. This question the ASI had been unable to answer as it had found no evidence of how the first shrine got buried in the ground and how the 12th century structure that replaced it came to be destroyed.

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Finally, after months spent on the excavation, years spent debating the ‘findings’ that emerged from the excavation, the public sensation and media frenzy that it all generated and a small rainforest that died to generate the paper all this consumed, the Supreme Court, in its conclusion on the relevance of this entire exercise, held that “A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI”.

Why then, was the entire exercise undertaken? What value did it add to know what lay buried in the layers of soil under the now-demolished masjid and what period it dated back to? These are the questions that we are left grappling with at the end of that saga.

But have we learnt anything from our mistakes? Of course not. ASI surveys are being sought by parties in several of the civil suits that have cropped up across the country in the aftermath of the Ayodhya judgement, claiming that several ancient mosques and dargahs had been built on the site of pre-existing temples and ought to be restored to their original religious character. Such requests for ASI surveys are being allowed by courts as a matter of course.

For instance, Hindutva supporters have filed claims that a Shiva temple existed where the present Gyanvapi mosque is situated in Varanasi, and, as in Ayodhya, want the temple restored. In these civil suits, the court ordered the Director of the ASI to conduct a “scientific investigation/survey/excavation” of the present structure to “find out as to whether same has been constructed over a pre-existing structure of Hindu temple”.

In sharp contrast to Ayodhya, this time in the Gyanvapi case, there has been no conversation about the constitution of the ASI team and the need for presence of the Muslims on it, perhaps thanks to the clean chit given to the ASI by the Supreme Court. The ASI has now submitted a report before the District Court in the Gyanvapi case. Reading the ASI report leaves one with a strange sense of déjà vu. An entire exercise of excavation and archaeological analysis being demanded and contested, undertaken, its findings leaked to the press contrary to court orders, its conclusions being objected to, and every step being hotly debated in the media, all this leaving the question of its relevance to the legal dispute before the court for the very end, an end that does not appear to be in sight.

(Views expressed are personal)

Saiyyad Mohammad Nizamuddin Pasha is a Delhi-based lawyer

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(This appeared as 'To Dig Or Not To Dig' in Print)sure win ph