Archaeology for the courtroom: the Ayodhya Case and the fashioning of a hybrid episteme

Abstract

On 1 August 2002, the Allahabad High Court in India, adjudicating the Ayodhya Case, ordered archaeological excavations by the central government agency Archaeological Survey of India (ASI) at the site of the demolished mosque Babri Masjid in Uttar Pradesh. The order marked a new moment for the convergence of law and archaeology in India, with archaeological knowledge being produced on judicial demand as evidence in a civil dispute. This paper argues that this marked the emergence of a hybrid episteme of archaeology-as-legal-evidence which redefines archaeology within the framework of law. It traces these tendencies by a close reading of three documents: the judgements of the Allahabad High Court and the Supreme Court in the Ayodhya Case and an order issued by a lower court in Varanasi, Uttar Pradesh on 8 April 2021 in the GyanVapi Case. I argue that the new role that archaeology is assuming in courtrooms in India is destabilising the standing of the ASI as the authority of archaeological knowledge and the protector of the nation’s material past. It has also produced a category of assertive public that successfully demands production of archaeological knowledge towards ideological ends.

I am an archaeologist. I understand the language of stones, bricks and lost civilizations. My method and language might be different from that of law. But, my Lord, it is my belief that irrespective of the language or form in which truth is told, it will remain the truth. (Aryan Kulshrestha in Ram Setu, 2022; translation mine)

In the 2022 Bollywood action-adventure Ram Setu, Dr. Aryan Kulshrestha, a disgruntled government archaeologist of the Archaeological Society of India (a play on the central government agency Archaeological Survey of India (ASI)), played by Akshay Kumar, is hurled into a truth-finding mission by a nexus of the judiciary, the state, the public and big business. In the course of the mission, the sworn atheist and champion of ‘scientific method’ is compelled to accept the historicity of the Hindu God Rama through his encounter with the hard ‘facts’ ‘proving’ that the geological formation Ram Setu (lit: Rama’s Bridge, also Adam’s Bridge) was in fact a bridge built by Rama and his army to reach Sri Lanka from India. The film depicts India as a Hindu nation without any reservation, and slips into flights of fancy packing action into archaeology. Kulshrestha’s impassioned declaration in the court, cited above, is one of the moments in the film that speaks to the public acceptance of a new role that archaeology is assuming in courtrooms in India. Along with the political rise of Hindu religious nationalism and proliferating ownership claims on Islamic sites, there is also an increased demand for archaeological knowledge to be produced as legal evidence to support these claims.

Archaeological practice and conservation in India are highly regulated through the bureaucratic mechanisms, legal authority and disciplinary conventions of the Archaeological Survey of India. A colonial survey formed in 1861, the ASI has in post-colonial times evolved into a vast bureaucracy producing and regulating archaeological knowledge (Avikuntak, 2021) and into the custodian of the nation’s monumental heritage. Two acts of Parliament, the Ancient Monument and Archaeological Sites and Remains Act (AMASRA), 1958, and the Antiquities and Art Treasure Act, 1972, allow it effective control of monuments and archaeological remains across India. It has an extensive network of regional circles and special branches that conduct fieldwork, maintaining close methodological reference to its own colonial antecedents. It also has a unique mechanism whereby no archaeological explorations or excavations can be conducted in the country without an ASI licence, following its guidelines.

The ASI and its authority over sites and finds have periodically become subject matter in court cases from colonial times. This has primarily been with reference to ownership of accidental discoveries (Trivedi, 2018) and management and control of archaeological sites and monuments (Ahmed, 2013). In these instances, the authority vested in the ASI as the custodian of movable and immovable material remains of the past is challenged. On 1 August 2002, the High Court of Allahabad in the North Indian State of Uttar Pradesh ordered excavations by the Archaeological Survey of India (ASI) to determine whether a temple existed previously at the site of the 16th-century mosque Babri Masjid in Ayodhya and whether the mosque had been constructed after demolition of the former. This order was a moment of departure for the intersection of law and archaeology in India, as this was the first instance where archaeological knowledge was to be produced on judicial requisition to be recast as evidence in a title dispute. For the ASI also the order signalled a shift in its positioning in relation to the judiciary, the public(s) and, as we will see in the discussion, other archaeologists. The ASI was not positioned in opposition to the public(s), but was required to perform the judicially ordained role of expert in the arbitration process. In this paper, I argue that this marked the emergence of a new hybrid episteme of archaeology-as-legal-evidence in India. I call archaeology-as-legal-evidence a hybrid because here, archaeological practice and interpretation are determined both by conventions of ASI archaeology and the requirements and structure of legal disputes. The use of archaeology as legal evidence has been discussed in contexts outside of India in relation to indigenous rights over land and remains (Ferris, 2003; Harrison, 2005; Hogg and Welch, 2020; Martindale, 2014; among others) and forensic archaeology (Crossland, 2013), and such instances inform this discussion to some extent. The varying regional contexts and purposes notwithstanding, these studies suggest how judicial expectations, adversarial framing of court cases and the different ‘evidential regimes’ (Crossland, 2013) of law and archaeology operate in the constitution of archaeology as legal evidence.

In the two decades between the Allahabad High Court’s order for excavations and the release of Ram Setu (2022), the attributes of archaeology-as-legal-evidence have become more defined and the ways in which sections of the public interact with archaeology in the context of court cases have been significantly reconfigured. In this paper, I trace some of these tendencies through a close reading of three documents. The first is the Judgement of the Allahabad High Court in the Ayodhya Case (hereafter the HCJ) dated 30 September 2010. The second is the Judgment of the Supreme Court of India in the Ayodhya Case on 9 November 2019 (hereafter the SCJ). The third is an order by a lower civil court in Varanasi, Uttar Pradesh on 8 April 2021 (hereafter the CCO), which directed the ASI to conduct an archaeological survey at the location of the 17th-century GyanVapi Mosque in Varanasi, Uttar Pradesh.

Circumstances of the litigations

Riots and communal tensions around Babri Masjid in Uttar Pradesh and civil disputes regarding ownership and rights of access to its premises date back to the 19th century CE (Noorani, 2003). Over the years and into the post-independence period, Babri Masjid became the most evocative site of tension and violence where the majoritarian politics of Hindutva were articulated in India. The major contention was that the mosque was constructed on the orders of the Mughal Emperor Babar, on a piece of land which was the birthplace (janmabhumi) of the Hindu God Rama, hero of the epic Ramayana. Following escalated mobilizations around the site from the late 1980s, on 6 December 1992 the 16th-century mosque was demolished by a violent crowd of karsevaks (volunteer activists affiliated with different Hindu right-wing organisations collectively called the Sangh Parivar). The event decisively marked the electoral rise of the right-wing religious nationalist Bharatiya Janata Party (BJP), a member of the Sangh Parivar and the current ruling party, as the largest electoral power in India. In 1989, in the context of rising communal tensions around the site, it was decided that the legal disputes on Ayodhya pending before the civil courts of India from the 1950s would be heard together by a special bench of the Allahabad High Court in Uttar Pradesh. ¹ The court considered the parties to the suits as representing the two religious communities as a whole. I use the essentialized terms ‘Muslim and Hindu parties’ in this paper following the Allahabad High Court’s use of the terms. How such reductive monolithic notions of religious identity inform the judicial process at Ayodhya is another critical issue that has to be considered in its own right. The total area of land for which title was claimed was a little less than 1240 square metres in the Village Ramkot of Ayodhya, Faizabad District, Uttar Pradesh. ² The long-drawn-out title dispute over the land and the structures within, adjudicated by the Allahabad High Court, outlived the demolition of the mosque and stretched on till 2019 (SCJ, 2019: 6–82 for a summary of the legal dispute).

During the course of the trial, the three-member bench of the Allahabad High Court ordered the ASI to excavate on the land where the Babri Masjid stood. The court identified the basic issue in all the suits as ‘whether there was a Hindu temple or any Hindu religious structure existed [sic] and the alleged Babri Masjid was constructed after demolishing such temple at the site in question’ (HCJ, 2010: Sharma, Annexure 3, p. 1). ³ The excavations were expected to conclusively answer these two questions. Following orders on 1 August 2002, 23 October 2002 and 5 March 2003 (HCJ, 2010: Sharma, Annexure 3, pp. 1–15), the ASI excavated 90 trenches in Ayodhya from 10 March 2003 to 7 August 2003 (Mani and Manjhi, 2003: 268). While the ordering of excavations was an unprecedented judicial measure, the recourse to archaeology by the court in the Ayodhya Case was not accidental. Archaeology had been an integral part of the body of evidence led by the parties. Archaeology, alongside theology, history and mythology, had been invoked in support of the temple theory by the Sangh Parivar over the years. ⁴ Academic critiques of the political appropriation of history and archaeology in this manner came from historians and archaeologists affiliated to university departments and focused on the merits of the evidence and counter-evidence (Gopal et al., 1990; Mandal, 2003) ⁵ and the autonomy and methodological integrity of the discipline of archaeology (Ratnagar, 1994). ⁶

Archaeologists appeared in two capacities in the Ayodhya Case: one, as part of the court-appointed scientific commission, i.e., the ASI team, and second, as expert witnesses and observers for the parties of the case. The ASI submitted its two-volume report (hereafter the Report) within a mere 15 days of completion of the excavations. This was an unusually rushed feat ⁷ paced by court-imposed time constraints. The report concluded that archaeological evidence indicated the presence of ‘a massive structure just below the disputed structure’ and that the evidence was ‘indicative of remains which are distinctive features found associated with the temples of north India’ (Mani and Manjhi, 2003: 272). It did not conclude that this preexisting structure was demolished for construction of the mosque. The voluminous report was alternately lauded as commendable (HCJ, 2010) and criticised for bias and flaws and inaccuracies in procedure and interpretation both within the court (detailed in HCJ, 2010: Agarwal, Vols. 4 and 5, and Sharma, Annexure III, pp. 53–163) and outside of it (Mandal and Ratnagar, 2007; Varma and Menon, 2010). Scholars have also commented on the implications of archaeology moving into the courtroom for the practitioners (Ganesh et al., 2003) and on the extraordinary nature of the court-ordered excavations and the particular notions of archaeology that it entailed (Avikuntak, 2021; Guha, 2005; Guha-Thakurtha, 2003; Ratnagar, 2004; Varghese, 2018, 2021; Varma and Menon, 2010).

On 30 September 2010, the Allahabad High Court ordered, in a split verdict, ⁸ division of the property in dispute among three claimants—the Muslims, the Hindus and the Nirmohi Akhara, a Hindu sect that argued that there was never a mosque at the site in dispute. The land below the central dome of the Babri Masjid, where Hindu idols were surreptitiously placed in 1949, was directed to be given to the Hindu parties. All the parties involved appealed the decision in the Supreme Court, as each had pleaded for sole ownership of the property. The five-member bench of the Supreme Court, in its final verdict on 9 November 2019, reversed the order of the High Court. The Supreme Court directed the Central Government to hand over the entire disputed land to a Trust for the construction of a temple. The order decreed that land be allotted for the construction of a mosque outside the contested property, in effect delegitimizing Muslim rights to the mosque from the 16th century CE.

Judicial determinants of archaeology as evidence

In our view, the conclusion drawn by the ASI in the project accomplished within an extra-ordinary brief period and with such an excellence precision and perfection deserve commendation and appreciation instead of condemnation. (HCJ, 2010: Agarwal, Vol. 18, p. 4306)

For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests. (SCJ, 2019: 920)

The Allahabad High Court judgement (HCJ) runs to more than 6000 pages, in multiple volumes and annexures with separate observations by the three judges. Reaching far beyond the ambit of a title dispute, it forays into realms of mythology, religion, faith and history and into random literary excesses. It is replete with lengthy quotes from and oblique references to texts ranging from the Vedas to Shakespeare, Adam Smith and Hegel. Justice Sibhgat Ullah Khan began his judgement invoking Alexander Pope (1896). ‘Here is a small piece of land where angels fear to tread. It is full of innumerable land mines …We do not propose to rush in like fools lest we are blown’ (HCJ, 2010: Khan, p. 1). Of the three judges, two relied heavily on the archaeological material to answer some of the issues framed, while the third did not consider archaeology as ‘absolutely essential to decide’ title (HCJ, 2010: Khan, p. 276). Thus, archaeology was one, albeit a crucial, part of the body of varied evidence, which included religious texts, colonial documents, early traveller accounts and accounts on religion, mythology and history by a range of authors. The Supreme Court Judgement is a single-volume document of 1045 pages (SCJ, 2019). The bench was unanimous in its observations, findings and relief. The ASI report is dealt with in a lengthy subsection to one of the four main suits. The Supreme Court did not place considerable reliance on archaeology or history before the 19th century CE to reach its final verdict. It noted that ‘finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI’ (SCJ, 2019: 907). Even as the judgements were predicated on a complex body of evidence, I argue that a separate discussion on archaeology is warranted. The significance of these two judgments has been beyond the resolution of the dispute given long-lasting implications of the new judicial role that archaeology is assuming in India. In the following discussion I will examine the legal determinants of archaeology-as-legal-evidence in Ayodhya, focusing on the High Court Judgment and supplementing the discussion with observations based on the Supreme Court Judgment.

Conducting court-ordered excavations

The major legal provisions for ordering archaeological excavations are Section 45 of the Indian Evidence Act, which allows courts to take the opinion of experts on a point of foreign law, science, art or identity of handwriting as relevant facts, and the Order XXVI Rule 10A of the Code of Civil Procedure, whereby the court can issue a commission that it sees fit to conduct a ‘scientific investigation’ outside the court. The premise here is that the question on which expert opinion is sought is outside the field of expertise of the judges and hence has to strictly adhere to the disciplinary or procedural conventions that the field demands. This implied that the court-ordered excavations would not have been different from any ASI excavation. The discussions in the HCJ and the excavation report indicate that the excavations followed conventions of ASI practice in many aspects such as in layout of trenches, stratigraphic recording and structure of the Report. However, in practice, the ASI was forced to make perceptible modifications in direct response to the court requirements. In the ‘Objectives and Methodology’ (Mani and Manjhi, 2003) section of the Report itself there are many indications of a hyper-awareness of legal and public scrutiny. To take one example, the ‘traditional layout’ for excavations had to be modified ‘[t]o avoid any confusion and for better understanding by even laymen’ (Mani and Manjhi, 2003: 8). A close examination of the orders related to the excavations, its conduct as described in the judgement, and the Report reveals judicial interference with the archaeological process in Ayodhya at multiple levels. These mediations were both external and internal to the conduct of the excavations. The former included meta-documentation of the excavations, severe restrictions of access to the site and a gag on media. The latter included a pervasive set of directives that defined the research goal, specified where, when, how and how much to excavate, interfered with the composition of the team and imposed periodic temporal constraints on both the excavations and the time spent on interpretation and report. ⁹ At one point during the excavations, the Excavation Director was substituted through a court order (HCJ, 2010: Agarwal, Vol. 1, p. 250). The effective control over the excavations was thus with the court.

The ASI acknowledged the extraordinary conditions in a section titled ‘Constraints’ in the introduction of the Report (Mani and Manjhi, 2003: 9–11). ‘This is an unprecedented event in the one hundred and forty two years of history of the Survey’ (Mani and Manjhi, 2003: 9), it noted. However, it did not concede the court mediations to have any impact on the knowledge generated. This stance owed to ‘the ASI’s positivist notions regarding archaeological practice and its claim to superior knowledge and authority deriving from its location as a statist bureaucratic/scientific institution’ (Varghese, 2018: 19). The court also shared similar positivist expectations regarding archaeology as a discipline. The mediations and constraints that it imposed on the ASI were regarded as external and inconsequential to the knowledge produced and hence were not acknowledged as having any influence on the Report. It is this understanding that allowed the court to, on the one hand, regulate the excavations, and on the other, assert the validity of the Report as independent expert evidence. I argue that, contrary to these assumptions, archaeology as legal evidence was also constituted through the legal mediations and ordering and hence is a hybrid knowledge form. In the next three sections I will further explore the HCJ to delineate key assumptions that inform and devices employed to configure archaeology as an instrumental resource for legal evidence.

The quest for truth

Judicial enquiries are oriented towards ‘truth’ in a positivist sense. The compulsion for immediate and fail-safe solutions determines the way expert opinion/evidence is dealt with by the judiciary. The role of the expert is a narrowly defined one, of providing the court facts or evidence that allow it to reach uncontested ‘truth’. The interpretative nature of archaeology as a discipline is not oriented towards such solutions. Establishing archaeology as an ‘advanced’ science which can bypass the fallibility of human agency by adherence to technology and procedure was the primary device employed by the High Court to contain this contradiction. The assumption of the court here was that adherence to scientific methods will automatically lead to truth. Guha (2005: 399) notes that this was ‘the first instance in the history of Indian archaeology where the discipline’s principal method (i.e., excavations) has been legally endowed with potential for unearthing the “truth”’. In the orders related to and the observations made by the judges following the excavations, there were multiple references to the development that ‘archaeological science’ had achieved that allowed it to answer the questions posed with accuracy. The foregrounding of the GPR Survey conducted prior to the excavations as an advanced technology to guide archaeology is also notable. The court implied that there was no need to cross-examine the agency that conducted the GPR survey, because the ‘data … collected on a computer’ was a direct recording through the medium of technology, without interference of human agency (HCJ, 2010: Sharma, Annexure III, pp. 9-10). The expectations and scope of adducing archaeology as evidence were elaborated by Justice Sudhir Agarwal, with the aid of extensive quotes from preceding cases where expert opinions were sought in other domains such as fingerprinting and handwriting (HCJ, 2010: Agarwal, Vol. 15). The danger of incorrect opinion, as one of the cases cited suggests, became less ‘the more developed and the more perfect the science’ (as quoted in HCJ, 2010: Agarwal, Vol. 15, p. 3576). Both Agarwal and Dharam Veer Sharma considered archaeology at Ayodhya as a science of this order, as is evident from their acceptance of the ASI Report in its entirety as substantive evidence. They held that the report conclusively proved the factuality of existence of a pre-existing temple. As a science of the highest order, archaeology was expected to ‘remove any suspicion or doubt as to the facts of the case which is in dispute and … to find out the truth in regard to the contentious issues raised by the parties’ (order dated 23 October 2002, quoted in HCJ, 2010: Agarwal, Vol. 1, p. 205). Archaeology here functions as a ‘truth machine’ ¹⁰ that negotiates the murky unresolvable realms of faith, mythology and history, producing ‘scientifically’ validated ‘facts’ as evidence, and thus providing access to ‘legally actionable truth’. It should be noted that Judge Khan, who did not consider archaeology as essential to decide the suits, did not engage with the status of archaeology as a truth-finding device in any detail.

Adversary registers of archaeology for the courtroom

Challenges to the truth claims of archaeology as legal evidence are inherent in the legal process itself. We saw that in addition to the ASI team members, archaeologists also appeared as expert witnesses for the parties. Eight archaeologists appeared for the Muslim parties and seven for the different Hindu parties, in addition to experts in fields like history, epigraphy and religion, and witnesses of facts. The expert witnesses were allowed to observe the excavations, subject to prescribed conditions. Detailed objections were raised by archaeologists appearing for the Muslim parties and the parties themselves on several occasions during the course of the excavations and after the submission of the Report. Some of the objections directly challenged the grounds on which the assumption of unbiased scientificity was predicated—that is, the methodology followed at the site. These questioned the methods of recording stratigraphic information and omission in recording certain categories or finds, and alleged that the ASI were creating non-existent features such as pillar bases through purposeful removal of bricks. Some other objections questioned the interpretations made by the ASI team on the nature of the site and on identification of individual remains. One example was the characterization of a stone sculpture as ‘divine’. The ASI team was also accused of bias and of being politically influenced by the BJP regime.

How these different objections were dealt with in the judgement is especially telling in terms of the hybrid nature of the legal-archaeological complex at Ayodhya. Legal disputes are framed in adversarial terms; the High Court Judgement transposed the same framing to archaeology. Prior to the excavations, the submission of different Hindu parties was that a temple existing on the birthplace of Lord Rama was demolished for the construction of the Babri Masjid (except for the Nirmohi Akhara, who denied the identity of Babri Masjid as a mosque). The different Muslim parties held that there was no pre-existing temple at the site that was demolished. The court expected all the experts appearing for a particular side to hold the same respective views of parties they represented, and to adhere to these positions after the excavations. It also expected the parties appearing for one side to be unanimous in all their opinions regarding the excavation report. Independent analyses by archaeologists appearing for the same parties were discredited by the judges because of lack of concordance among them on details such as which trench could be considered a good index trench. Alternative interpretations given by these archaeologists to the structures that existed at the site prior to the construction of the mosque were not entertained, as these had not been originally pleaded by the parties they represented. To take an example, some of the experts appearing for the Muslim parties argued that the structure found in the excavations was Islamic in nature. This was rejected on the grounds that prior to the excavations, no case was made by the Muslim parties about the existence of a religious structure below the mosque. The advocates appearing for the Hindu parties also questioned the legal validity of interpreting archaeological material in a different way than what was originally pleaded. This was a caveat that made the role of the archaeologist as expert witness redundant, because the parties were expected to anticipate the results of the excavations prior to the fact and archaeological material was expected only to illustrate a pre-given argument. Some of the devices employed by Justice Agarwal to reject the objections raised by the expert witnesses appearing for the Muslim parties also speak to the adversarial framing. One strategy was to highlight parts of the statements that showed lack of concurrence among the experts appearing for the same party. Another was to extract or selectively highlight parts of witness statements that were in agreement with the ASI report.11 These were seen as indications of absence of unanimity and internal coherence in the objections and allowed the judge to reject them as ‘titbits’ and ‘minor infirmities’ (HCJ, 2010: Agarwal, Vol. 18, p. 38) with hardly any impact on the overall integrity of the ASI report.

Adversarial framing also defined the way in which expert witnesses were evaluated in comparison to the ASI team, the court-appointed ‘objective’ scientific commission. All expert archaeologists appearing for a party were expected to share a bias towards the party. Agarwal called the experts produced by the Muslim parties ‘virtually hired experts’, and this reduced ‘the trustworthiness of the experts’ (HCJ, 2010: Agarwal, Vol. 17, p. 4129). ‘[A]n expert is often called by one side’, he noted, ‘simply and solely because it has been ascertained that he holds views favourable to its interests’ (HCJ, 2010: Agarwal, Vol. 15, p. 3590).

Who is the real expert?

The criteria for evaluating expertise are a major related factor which defined the attributes of archaeology for the courtroom. Notably, while the authority of the ASI team as the court-appointed scientific commission was highly regulated, the commission did not fall under the adversarial framing that we discussed above. This was because the ASI was appointed by the court and not by any of the parties to the case. Questions of acceptability of the ASI report as evidence, credibility of the commission and expertise were assessed using different standards from those used in the case of archaeologists appearing as witnesses for the parties. There were no precedent cases available to the court where a commission was appointed to conduct an archaeological enquiry. Precedent was derived from cases where the same legal provisions had been used in unrelated fields. These ranged from survey commissions in property disputes to enquiries into financial irregularities, voting rights and labour laws, and expert opinion on medicine, handwriting and fingerprints. Rather than epistemological criteria, court observations in these cases provided the guidelines for assessing the expertise of the ASI. Specific criticism on archaeology as practised in Ayodhya became secondary to questions of the overall integrity and repute of the commission. Judge Agarwal noted that academic objections to the ASI report did not suggest that the ‘entire report or finding are incorrect or perverse’; however, allegations of bias or malafide, if found substantiated, ‘may result in vitiating the entire report’ (HCJ, 2010: Agarwal, Vol. 16, p. 3792).

ASI’s stature as a statist bureaucratic institution served the judges to dismiss allegations of bias and malafide. ASI was regarded as ‘experts of expert’ (HCJ, 2010: Agarwal, Vol. 17, p. 4128) in acknowledgement of its regulatory power over archaeological practice throughout India. Both Agarwal and Sharma periodically referred to its stature as a guardian of the national past. ‘The origin, status, reputation and other credentials of ASI would be a relevant factor for considering credibility and reliability of its report’ (HCJ, 2010: Agarwal, Vol. 16, p. 3847), noted the judge. The legal provisions that made the ASI an ‘expert body under the law’ (HCJ, 2010: Sharma, OOS 4, Vol. 1, p. 95) are reiterated. For the judges, these factors and the close court oversight of the excavation procedures rendered the ASI team immune to political influences or biases. Hence, criticisms levelled against the institution were dismissed using sharp language as ‘part of a predetermined plan and scheme’ and as showing an ‘irresponsible attitude’ (HCJ, 2010: Agarwal, Vol. 17, p. 4128).

There was no court scrutiny of the individual archaeologists of the ASI team. The rare occasions in which their individual identities were referred to were the order replacing the Director of excavations and while underlining the credibility of the report by stating that Muslim archaeologists in the team also agreed to its findings. This was in sharp contrast to the criteria used to evaluate the expertise of the archaeologists appearing for the parties. Religious beliefs, political affiliation and personal relations of the archaeologists came under close examination, in addition to their academic credentials. For Agarwal, the fact that the expert archaeologists appearing for the Muslim parties ‘were in one or the other manner connected with each other’ (HCJ, 2010: Agarwal, Vol. 18, pp. 4297-4298) made their opinions suspect. Experts in other fields such as historians were also subject to the same kind of evaluation. The immunity that the ASI team enjoyed from the court extended to a certain degree to expert witnesses who were in agreement with the Report. Some of these experts had had previous associations with ASI. This was seen to increase their credibility, rather than bias them towards the Report. Close scrutiny occurred only in the context of objections to the Report. In one instance, Justice Sharma stated that the experts objecting to the ASI report ‘have absolutely no idea for excavation. They were never associated with the Archaeological Survey of India’ (see HCJ, 2010: Sharma, OOS 4, Vol. 1, p. 99).

Even with the high esteem that was accorded by the judges to the ASI, the authority on interpretation of archaeological knowledge was not vested with the former, but with the judges. It was specifically stated that the opinion of the expert on the effects of the knowledge generated did not come within the domain of expert evidence (HCJ, 2010: Sharma, OOS 4, Vol. 2, p. 317). Thus, the archaeologist-as-expert was seen to have a limited role as part of the scientific commission. While the court was not expected to possess expert knowledge in the field, the judges had the final authority on archaeology. From regulating field practices, this authority extended to regulating post-excavation research, report preparation and archaeological interpretation. For instance, while the ASI report did not conclude that the previous structure at the site was demolished to build Babri Masjid, both Agarwal and Sharma reached this conclusion through their own interpretation of the findings. Khan on the other hand used the findings of the ASI in conjunction with other material and concluded that no temple was demolished for the construction of the mosque. Unlike experts in the field, the judges did not have any compulsion to adhere to the conventions of the discipline or standards of academic inquiry to reach their inferences. To take a particularly incredible example, Justice Sharma stated that the presence of bones at the site did not disprove the temple theory, and one of the reasons that he gave was that Lord Rama used to hunt animals (HCJ, 2010: Sharma, OOS 4, Vol. 1, p. 83).

The above discussion reveals archaeology at Ayodhya as a hybrid, determined as much by judicial framing as by the conventions of ASI archaeology. The orientation of legal disputes towards decisive resolution and their adversarial structuring mediated how archaeology was practised and employed in Ayodhya. In the absence of precedent cases, the scope of archaeology as evidence was derived from erstwhile observations made by the judiciary on unrelated fields. The institutional stature of the ASI is the primary factor that determined the authority of the Report. Within the adversarial process there were mechanisms by which the parties, and more importantly archaeologists, challenged the authority of the ASI and its findings. However, the scope of these challenges was contained by the differential standards employed by the court in evaluating expertise. While there was consistent effort on the part of the judges to underscore the authority of the ASI through interventions and rhetoric, the ultimate authority on both practice and interpretation of archaeology is vested in the former, who assumed the role of ‘expert of experts’.

Resolving the unresolved: Supreme Court observations on archaeology in the Ayodhya Case

The parties to the suits challenged the Allahabad High Court verdict in the Supreme Court of India because the verdict did not give sole title of the property to any of the parties. After failed mediations, a hearing by a five-member bench of the Supreme Court commenced on 6 August 2019. The final judgement was given on 9 November 2019. It held that the outer courtyard of the mosque had been in possession of the Hindus from colonial times. The destruction of the mosque in 1992 and prior targeted attacks were held to be calculated, unlawful acts that wrongly deprived the Muslim community of their place of worship. Even so, the final redress was to hand over the land where the mosque stood and the outer courtyard for the construction of a Hindu temple and to give five acres outside of the disputed land to the Muslim parties. Even though the Supreme Court did not place much weightage on archaeological evidence in reaching the final verdict, it is important to consider the Supreme Court’s discussion on archaeology for consequences that extended beyond the Ayodhya Dispute.

The SCJ noted that in addition to the findings, methodology, objections to the Report and legal provisions on expert evidence, the court should also look at ‘the challenge to archaeological evidence as purely inferential and subjective in nature’ (SCJ, 2019: 509). The nature of archaeology as a discipline was addressed primarily in response to one of the objections raised by Meenakshi Arora, counsel to the Sunni Waqf Board. Arora had submitted that as archaeology was an inferential science, it was a weak form of evidence. As distinct from natural science based on verifiable hypotheses, archaeology was a social science that drew inferences on the context of what was found in the course of excavations and could not yield verifiable conclusions (as cited in SCJ, 2019: 534). There is a long discussion in the judgement on the inferential nature of archaeology, bringing excerpts from Mortimer Wheeler on archaeological evidence and Karl Popper on scientific discovery into the mix. The court struggled to acknowledge the interpretative nature of archaeological evidence while holding onto the positivist notions of science, because the usefulness of archaeology-as-legal-evidence was predicated on the latter. ‘The supposed distinction between science as embodying absolute truth and archaeology as unguided subjectivity is one of degree not of universes’ (SCJ, 2019: 569), the judgement noted. For the Supreme Court, absolute truth and inference were at two ends of a value-laden continuum. Challenging the usefulness of archaeology as legal evidence leading to truth was tantamount to an insult to the discipline. ‘Archaeology as a discipline cannot be belittled as unreliable. The value of archaeology cannot be diluted in the manner which has been suggested by laying a claim to its being a weak form of evidence’ (SCJ, 2019: 567), the judges noted. Even as the Supreme Court tried to grapple with the inherently interpretative nature of archaeology, it did not offer any critique on the use of archaeology as judicial evidence, and ultimately opted out of the debate through literary refuge such as ‘[i]nterpretation is [archaeology’s] heart, if not its soul’ (SCJ, 2019: 569). The role of the judiciary as final authority on archaeology as legal evidence remained intact here also. It was held that as long as the judges understood ‘the limits and boundaries of the discipline’ they could ‘eschew extreme positions and search for the often elusive median’ (SCJ, 2019: 570).

The Supreme Court Judgement is at many places critical of the conclusions drawn by the High Court judges. One important observation it made was that failure to plead a position prior to the excavations could not be held against the parties. This meant that, unlike what was suggested in the HCJ, results of the excavations needed to be evaluated irrespective of the original pleadings. The Supreme Court contained the discussion on the objections to the ASI report within the domain of archaeology. This was in contrast to the High Court judges, who had often taken recourse to arbitrary texts and reached inferences on archaeological material without reference to archaeology. The merit of some of the objections raised by the parties to the inferences drawn by the ASI was acknowledged. ‘[I]n assessing archaeological or historical material one must eschew an [sic] unidimensional view’, noted the judgement (SCJ, 2019: 588). These factors suggest an effort on the part of the Supreme Court to separate archaeology as an independent body of evidence. But when it came to some of the major objections, such as on ASI’s inferences regarding the pillar bases of the structure below Babri Masjid, the bench chose not to go into the details of the objections. Thus, its acknowledgment of alternate views had only limited consequences for how the Report as a whole was evaluated. Criticisms on procedural lapses by the ASI were not taken seriously by the Supreme Court. This was possibly because the institutional stature of the ASI was a relevant factor for the Supreme Court also. While conceding that the Report could only be considered as an opinion, the court pointed out that it was an opinion ‘nevertheless of an expert governmental agency in the area of archaeology’ (SCJ, 2019: 564). ‘ASI is an expert authority. Its credentials and expertise are beyond reproach’ (SCJ, 2019: 558), it noted.

Thus, we see that there were some differences in the ways in which the High Court and the Supreme Court treated archaeology in the judgements. The SCJ was more open to the interpretative possibilities of archaeology even though it was not able to think significantly outside a positivist framework of science. The judges of the High Court used the ASI report to draw their independent inferences on demolition of a pre-existing structure at the site of the mosque. The SCJ did not challenge the conclusions drawn by the ASI report. It was also not treated as positive evidence for demolition of a pre-existing temple. It was ultimately deemed unnecessary in deciding the title. In the final section of the paper, we will discuss the import of these two judgments on the future use of archaeology as legal evidence in civil disputes.

Establishing norms for a new archaeology for the courtroom: the GyanVapi example

In its journey from stupefaction to truth, this court finds that at this stage only an expert like the ASI can enable this court to complete this journey. (Civil Court Order, 2021: 8)

On 8 April 2021, a Varanasi Civil Court directed the ASI to conduct an archaeological survey at the location of the 17th-century GyanVapi Mosque in Varanasi, Uttar Pradesh.12 This was to ascertain whether the religious structure standing there at the present (the mosque) was ‘a superimposition, alteration or addition or [if] there [was] structural overlapping of any kind with or over, any other religious structure [and also] … [to] trace whether any temple belonging to the Hindu Community ever existed before the mosque in question was built, or superimposed or added upon it at the disputed site’ (CCO, 2021: 11). The case in which the order was passed—Original Suit No. 610/1991, Ancient Idol Swayambhu Lord Vishweshwar and Others vs. Anjuman Intejamia Masjid and Another—was filed on 15 October 1991 in the court of Civil Judge, Junior Division, Varanasi. This was a time when mobilizations leading to the demolition of Babri Masjid were at their peak. Varanasi or Kashi was one of the two major sites13 invoked alongside Ayodhya as part of mobilizations to fuel the rhetoric of past Islamic atrocities targeted against Hindu places of worship and to call for a forcible ‘reclaiming’ of those sites. The first plaintiff in the suit was the Idol, Lord Vishweshwar (Hindu God Shiva), who sought ownership of the entire GyanVapi complex. The submission of the plaintiff was that there existed a temple for Lord Vishweshvar at the site since ‘time immemorial’. The idol (sivalinga) had self-generated from the depth of the earth and hence had continued to exist at the spot. The temple was reconstructed 2050 years ago by King Vikramaditya. On 18 April 1669 Mughal ruler Aurangazeb, as per the plaintiff, issued an order to demolish the temple and the mosque was constructed using the ruins of the same (as cited in CCO, 2021). On 10 December 2019, the plaintiffs submitted an application (Application No. 266-GA in OS No. 610/1991) for the survey of the site by the Archaeological Survey of India. The Order of the Civil Court on 8 April 2021 was in response to this application. The Court directed the Director General of the ASI to conduct a ‘comprehensive physical survey’ (CCO, 2021: 10) at the site. It gave detailed directives in 19 paragraphs on how the ASI should conduct its investigation. There were specific instructions on the research question, composition of the team, time limits, methodology to be adopted, practices of storage and recording and measures to be taken to prevent public and media access to the excavations. Additionally, the ASI was asked to bear the cost of the entire survey. The survey order was stayed on 9 September 2021 by the High Court of Allahabad (2021), for the reason that proceedings on all matters related to the case were under stay at the time of the order and final judgement in all the suits related to ownership of the site of the mosque were pending. For the purpose of this discussion, I will focus only on the Civil Court Order (2021).

The notable departure here was that the demand for excavations at Varanasi came from the petitioner and not the court. This signalled an important shift in the way the public(s) related to archaeology in India. The intersections of archaeology, public(s) and the law produce different forms of interactions and categories of public. Trivedi (2018: 111), for instance, talks about how the deployment of law by archaeologists ‘divided archaeological publics but also created veritable counter-publics’, who were routinely punished for the ‘greater good of’ of the discipline. In legal cases where the management rights of the ASI over specific sites are challenged through court, as in the case of Taj Mahal (Ahmed, 2013), the public–archaeology relationship is adversarial. In the case of Ayodhya, there was active deployment of archaeology by the parties who used existing archaeological discussions to lead evidence through their lawyers and through expert witnesses. When it comes to GyanVapi, we see a definitive switch with an assertive category of public which employs legal provisions to demand the production of archaeological knowledge towards ideological ends. What were the conditions that made this possible?

The application by the plaintiffs for excavations and the Civil Court Order have direct and indirect references to the Ayodhya Case. The former was submitted less than a month after the Supreme Court verdict in favour of the Hindu parties. The plaintiffs had specified tasks that they wanted the ASI to carry out, which included ‘survey using radar’ to confirm the nature of pre-existing structures under the surface, and excavation at the central portion of the mosque to find evidence for the idol. The directions by the Civil Court to the ASI resonated with those given by the Allahabad High Court in the Ayodhya Case. Some of the directives were specific to the site, such as where to excavate, the purpose of excavations, and alternate arrangements for prayers for Muslims in the event of the excavations hindering their access to the mosque. But most of the directives pertaining to the conduct of the excavations were directly adapted from the Allahabad High Court order without site-specific reasoning. Though it is premature to make a definitive argument based on a single case, this suggests the establishment of a set of procedures as norms of courtroom archaeology.

The Civil Court also retained the Allahabad High Court’s epistemological prejudices about archaeology. Archaeology was expected to provide foolproof answers to the questions formulated by the court. It gave a lengthy textbook-like definition of archaeology, lauding the technological advancement that the discipline had achieved which rendered the archaeologists’ opinions ‘almost infallible’ (CCO, 2021: 6). The infallibility of archaeological opinion was guaranteed by the institutional stature of the ASI. The judge directly quoted at length from the official website of the ASI on its functions, regulatory authority and bureaucratic establishment. The faith in the institution was further underscored by the fact that unlike in the High Court proceedings, there was no provision in the Civil Court Order for other archaeologists to observe and critique the excavations as expert witnesses for the parties. In lieu, an observer who was an ‘expert in the science of archaeology’ was to be appointed Director General of the ASI. Thus, the onsite practices of knowledge generation were taken outside the remit of adversary process.

We saw that the Supreme Court partially acknowledged the critiques to the simplistic positivist notions of archaeology held by the High Court, through concessions to subjectivity and multiplicity in archaeological interpretation. Such considerations were not translated into the Civil Court Order, even though it directly quoted from the SCJ on the nature of archaeology. The quote is from the Supreme Court’s discussion on whether archaeology was inferential and hence a weak form of evidence. The Supreme Court described archaeology as a discipline that combined science and art and borrowed immensely from other social sciences. The excerpt ended with the assertion cited in the previous section that archaeology could not be belittled as a weak form of evidence. The Civil Court’s discussion on archaeology that followed the excerpt, however, did not reflect any of the disciplinary concerns raised in the excerpt. Its only function was as an observation made in a precedent case where archaeology was used as legal evidence. The content of the excerpt or the actual weightage placed on archaeology by the Supreme Court were not important.

This instance helps us understand the centrality and function of precedence in the legal process. I am not referring here to the Doctrine of Precedent in Indian Law that makes the decision of the Supreme Court binding on all lower courts (Constitution of India, 1950). Observations or opinions expressed by the judge incidentally, in the course of a judgement or obiter dictum (Black, 1991), also carry persuasive weight even if they are not important to the determination of the case. Legal arguments rely heavily on the cumulative value of precedent cases and obiter dicta. Observations drawn from unrelated contexts can carry equal weight as long as the legal provisions cited are the same. The reasoning here is very different from academic reasoning where a previous interpretation or conclusion, irrespective of its authorship, can be challenged in its entirety or in parts to reach alternative interpretations. Uncritical application of arguments from an unrelated context is also contrary to academic logic. The incompatibility between the two forms of reasoning is apparent in the Ayodhya Case, where the judges struggled to establish standards for archaeology for the courtroom. When it came to the Civil Court, the Ayodhya Case served as a precedent, a ready reference that allowed the court to suspend the academic requisites of archaeology.

Conclusions

The Supreme Court verdict in the Ayodhya Case has opened a Pandora’s box of litigations where title and history of Islamic monuments are systematically contested; GyanVapi is an illustrative example. This is despite the existence of the Places of Worship Act 1991, which prohibits conversion and provides for the maintenance of the religious character of any place of worship as it existed on 15 August 1947. These litigations have emerged as sites of assertion and validation for majoritarian religious nationalism. Archaeology and the ASI are actively drawn into the remit of many of these disputes. To take another example, on 14 April 2021, an application was filed at a Mathura Court that sought a ground radiology survey by the ASI at the Jahanara Mosque at Agra to ascertain if idols of Lord Krishna are buried beneath it. The petitioner made reference to the GyanVapi Case, pointing to further crystallisation of normative assumptions regarding the use of archaeology as legal evidence (LiveLaw, 2021). Among the sites that are embroiled in litigation are the World Heritage Sites of Qutb Minar in Delhi and Taj Mahal in Uttar Pradesh, and the ASI-protected monuments Jami Masjid of Budaun and Bhojshala and Kamal Maula’s Mosque in Madhya Pradesh.

The Ayodhya Case marked the beginning of a new role in India for archaeology as a discipline and ASI as an institution in legal disputes. The discussion showed that the judiciary is vocal about its complete faith in the ASI and its ability to fulfil its role as court-appointed scientific commission, assisting the court’s journey to truth. On the one hand, the judiciary further validates the hegemonic position that the ASI has enjoyed in India as the custodian of the material past and as a regulatory body of archaeology. On the other hand, it also undermines ASI’s institutional authority at multiple levels. The ASI report on Ayodhya excavations was subject to unprecedented scrutiny both by the court and by the expert witnesses, revealing the vulnerabilities of ASI epistemology. We saw the effective authority on archaeology at Ayodhya—both in field practices and in inference—was with the court. During the course of Ayodhya litigation, Justice Sharma asked the ASI to declare the excavated remains of the alleged temple as a monument of national importance (HCJ, 2010: Sharma, OOS 4, Vol. 1, p. 102). It was ‘the court, the non-expert’ who adjudicated ‘on what had once been a set of internal or intra-disciplinary issues’ (Ganesh et al., 2003) and institutional prerogatives of the ASI. The Civil Court automatically assumed this authority when it came to the GyanVapi Case. Challenges to contemporary use of protected monuments and narratives of their past occur at sites like Badaun, Qutb Minar or Taj Mahal, further destabilising the authority of the ASI as the guardian of the nation’s monumental past.

The GyanVapi Case signalled an important shift in the dynamics of the public–archaeology relationship. Here, active demands for knowledge production were made by sections of the public on archaeology and the ASI, through the medium of the court, towards political and ideological ends. With increased articulations of majoritarian religious nationalism through civil disputes of ownership, we see the constitution of an assertive public that is interacting with archaeology in new and increasingly proactive ways. The public here is not an amorphous category or the body politic, but organised religious nationalistic interest groups. The experiment is repeated at Mathura. At one moment in Ram Setu (2022) this public transforms as a violent mob that threatens the archaeologist, forcing him to reexamine his disciplinary convictions.

The new role that archaeology is playing in civil disputes of ownership of religious sites in India merits close academic attention from archaeologists not just for its far-reaching repercussions on questions of secularism and minority rights, but its implications for the discipline itself. The underlying assumption that renders validity to courtroom archaeology is that it is an independent body of knowledge produced by experts. The court-mediated conditions of its production are not acknowledged to have major implications on the knowledge generated. In this paper, delineating certain broad trends of the process, I have disputed the validity of these assumptions. What is produced for the court is a hybrid knowledge of archaeology-as-legal-evidence, defined as much by truth compulsions and the adversarial logic of legal arbitration as by the conventions of ASI archaeology. The resulting archaeo-legal complex is co-produced by the institutions of law and archaeology in India and is informed by a reductive notion of archaeology as a positivist science leading to uncontested truth. It is also overdetermined by the Ayodhya Case, as evidenced by the similar framing of the new litigations and the new demands on archaeology. The popular image of the archaeologist as the unattached truth seeker in Ram Setu (2022) is reproduced in courtrooms and is often uncritically accepted by the archaeologists involved. Through its repeated invocation as precedent, the attributes of this new episteme get further defined and codified. At the same time, it maintains a semblance of ‘academic archaeology’ by banking on the institutional authority of the ASI. This paper is an initial effort towards delineating certain main tendencies of an emerging discourse. Closely following these tendencies as they unfold is expected to open up further discussion on the interaction of different evidential regimes and emergence of hybrid knowledge forms at the intersection of archaeology and law and on the role of an assertive public(s) in the production of archaeology as legal evidence in India.