Evidentiary value of archaeological evidence: Judicial approach of the Supreme Court of India with special reference to M. Siddiq (Dead) through legal representative vs. Mahant Suresh Das (1 SCC 1) *

Ram Janmbhoomi (birth place of Lord Rama) is the most controversial dispute of the independent India. The dispute was existing in pre-independence era but after independence dispute has changed the direction and condition of Indian political system. There was claim that mosque was built after the demolition of Ram temple. This dispute was so intense that it brought the incident of demolition of mosque in 1992. After demolition suit was filed from both the side: Muslim and Hindu. The decision of apex court on civil suit came after 27 years. The apex court took the cognizance of Archaeological Survey of India (ASI) report to decide the claim of parties. This paper aims to give a brief background of Ramjanmbhoomi dispute; explore evidentiary value of expert opinion; whether archaeology is science or art; to evaluate the evidentiary value of archaeological report prepared by ASI through evacuation in the judgement.


Review of Literature
The author in this paper specifically stated that the lesser importance was paid towards interpretation of substantive law whereas the judgment more or less under political influence (RAMNATH, 2011). The question in this paper mainly revolve around the title of property on one hand or on the other side the identity. In this work highlighted the procedural and evidentiary impulses. It is also not difficult to locate through the point that the Archaeological Survey of India (ASI) report is the authorized account or that "Hindus" are treated as an identical category in law or that the court mentioned in one of the suits that

Meaning of Expert Opinion
Section 3

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of the expert witness is to provide information to the court, with respect to issues, which may help the court to interpret the information, which is not in the knowledge of the court. 6 In this case the relevant fact was whether the mosque was constructed after demolition of temple and whether the underlying structure was temple. To ascertain this the opinion of experts in archaeology need to be taken.

Value of Expert Opinion
The evidence based on the expert opinion must be taken into account with great caution. The opinion of an expert on facts should be admitted only when there is question with respect to science or art. For example, if the evidence produced by expert is just an opinion but not supported by any reason, it should not be taken into account by the court. 7 The statements in the ASI report constitutes the opinion of an expert. This opinion is by an expert governmental agency in the area of archaeology.
The expert opinion can be taken on subject of science or art. Now it needs to check whether the Archaeology is a disciple of Science or Art?

Whether Archaeology is Science or Art
Justice Sudhir Agagrwal said that Archaeology provides scientific factual data for reconstructing ancient historical material, culture, understanding. Archaeology […] is a multi-disciplinary scientific subject and requires a team of workers for effective results. Excavation of ancient sites is one of the major works of Archaeologists. As it is a scientific discipline, it uses scientific methods in its working (INDIAN, 1 SCC , 2020, p. 488).
Archaeology is a science which comes from multidisciplinary or transdisciplinary. The evidences based on archaeology comes on scientific learning, the wisdom of experience.
This archaeology cultivates a trained mind. This discipline combines the knowledge of history, sociology and anthropology and make it more strength. It is has the feature of art and science both. As a branch of science it evaluates objectively and as art it work on the vision to get knowledge based on the histories of era. The value of archaeology cannot be diluted on the argument that it is a weak form of evidence (INDIAN, 1 SCC , 2020, p. 679).
Taking the importance of archaeology, the High Court of Allahabad has issued the order of

High Court's Order for Excavation
The High Court of Allahabad proposed to carry out an excavation by ASI. On 5-03-2003, Director General of ASI constituted a fourteen-member ASI team The ASI took a preliminary survey by a Geo-Radiology System (GRS) survey. The GRS report reflected about a variety of anomalies. The exact nature of these anomalies could be determined only on the basis of archaeological excavation. The Court further gave green signal to ASI for excavation.
The High Court passed a detailed directions to keep the records coming from excavation like the contesting parties will be present at excavation site, the material will be kept under lock and seal, the court would be informed periodically about the progress of excavation, the ASI has to maintain a regular register to maintain the records etc. The High Court also ensured that there must be adequate representation of both community in terms of ASI team and as well in the engagement of labour. The process of excavation was also video graphed. The ASI submitted its final report on 22-08-2003(INDIAN, 1 SCC, 2020.
The purpose of the High Court for excavation was to enable the court to get the scientific information based on a scientific investigation. The other object was to check whether there is any underlying temple structure on which a mosque was constructed.

Findings of Archaeological Survey of India Report
The Archaeological excavation finds evidences which indicates that the beginning of civilisation took place here from second century BC. The finding also revealed that there was a pre-existing underlying structure dating back to the 12 th century. The structure has a large dimension which is based on 85 pillars. On a preponderance of probabilities, it looks as Hindu religious structure. There is existence of a circular shrine with a Makara parnala, it indicates about the Hindu worship dating back to 10 th century. The mosque has foundation on a pre-large existing structure (INDIAN, 1 SCC, 2020, p. 1205).
However, the ASI reports showed the existence of a destructed pre-existing but it is not able to states the reasons for destruction in its report. It is not able to give answer to the question whether the earlier structured was demolished for construction of mosque. As per the ASI report the structure was dated back to 12 th century but it could not be able to give answer about a time gap of four centuries between the underlying structure and construction of mosque. The ASI report also could not be able to answer whether the residue of the preexisting structure were used in construction of mosque or not? (INDIAN, 1 SCC , 2020, p. 1206). The ASI report could not explain is there any nexus between black kasauti pillars used in construction of mosque and the structured beneath the earth.
The Supreme Court has said in this case that the ASI report must be read with the following caveats: (a) The excavation revealed the presence of a circular Shrine, dating back to7th to 9 th century and underlying structure belongs to 12 th century. The difference of time period is three to five centuries between the circular Shrine and underlying structure.
(b) The claim that the underlying structure was a temple dedicated to Lord Ram was not supported by any particular evidence.
(c) More Importantly the ASI report has not precisely opined on whether disputed mosque structure was constructed on the demolition of a pre-existing Lord Ram temple. The court has understood this inability and said that it would really a great difficulty to get hindered years back and find very precisely whether there was any demolition for construction of mosque or the earlier building may be collapsed due to natural forces also (INDIAN, 1 SCC , 2020, p. 1206).

Supreme Court on Evidentiary Value of Archaeological Evidence
The weight of expert evidence depends on the nature of science on which it is based.
Where the science in question requires necessary elements of verification and objective analysis, the expert evidence must have such necessary elements. A more advanced and perfect science will have less chance of incorrect opinions while if the science is less advanced the risk of incorrect will be more likelihood. If we take the example of expert opinion based on fingerprints the risk of incorrect opinion is very less, while the expert opinion on handwriting has very much likelihood to be incorrect because it is not as developed. The Supreme Court has rejected argument that as the expert opinion on hand writing is weak, similarly the expert opinion on the archaeological evidence is weak because it is not a developed science. The court said that while accessing the evidence based on archaeology it is necessary to see whether the scientific measures was taken into account or not. The process of excavation must be documented properly in electronic and

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conventional forms. What is excavated and found is a fact. This fact must be related with data by archaeologist. The process of drawing inference from the data is necessary part of archaeology but to reject this process on the basis that it is speculative and hypothetical will be a disservice for archaeology and the process of excavation. In this case no party has questioned the independence of ASI team which was undertaken the exercise of excavation.
While taking the evidence of archaeological evidence the ASI report should be read in its entirety. It would be very unwise to reject the conclusion of archaeological evidence which is prepared by an expert team which carried out excavation under the orders of a High Court and very judiciously investigated the recoveries from different perspectives. However, the archaeological evidence must be taken contextually.
The evidence based on the archaeology was questioned on the ground that archaeology is an inferential science. In addition to this one more argument was that it is a branch of social science which is distinct from natural science due this it cannot be based on verifiable hypotheses. Particularly, in this case the ASI had prepared its report in 15 days in a hurried manner. This objection does not help to say that archaeological evidence cannot be taken, if the excavation was done with full care and in scientific way the evidences based on archaeology will be valuable. However, the Supreme Court has discarded these arguments that the report was prepared in hurried way and without taking care.

Judicial Power and Historical Wrongs
The Apex court also expressed its opinion whether the judiciary has the power to question on historical wrongs and can give the remedy for it. The Apex Court said that it is not possible to use law as instrument go in past and give a remedy to every person who is disagree with the action of the past. Even the court cannot take the cognizance of any rights and wrong committed in the past unless it is not proved that after taking cognizance of any to take the cognizance. The burden of proof will lie on the parties which is claiming the right.
The judicial authority cannot take the claims which comes from the actions of ancient rulers, the law does not give the answer to these claims. The history has replete actions which are immoral and even it may trigger the violence today also. The adoption Indian Constitution worked as watershed moment where, We, the people of India, moved away from religious based or colour based identity (INDIAN, 1 SCC , 2020, p. 993;995-996).

Supreme Court on Finding of Title Based on Archaeological Findings
The Supreme Court has answered to this question whether the title can be established on the basis of archaeological findings. The court said in this case there was a time gap between 12 th century to which the beneath structure is dated and the construction of mosque of 16 th century. There is not any evidence which can be shown in context of human history between the 12 th century and 16 th century. There is also no evidence to prove the cause of destruction and whether the pre-existing structure was demolished to construct a mosque. Therefore, a title cannot be established by archaeological findings which were made by the ASI.
So, we may say that the title of property cannot not be established on the archaeological findings (INDIAN, 1 SCC 1, 2020, p. 1224).

Conclusion
The Supreme Court concluded that the archaeological evidence could not prove that whether the mosque was constructed after demolition of temple. The Court further said it could not be also proved that whether the underlying structure was a temple. The court has applied the 'doctrine of justice, equity and good conscience' to resolve this dispute. The Court has exercised this power given under Art. 142 of the Indian Constitution. It empowers the Supreme Court to pass any order or decree for giving a complete justice. The court has used this power under the 'doctrine of equity, justice and conscience' to do complete justice.
The principle of justice, good and concise plays an ancillary role when the statutory provisions are inadequate to give remedy, then the court may take help of this principle. This principle supplements the justice. The court cannot refuse to give remedy on the ground that laws are inadequate. The court may develop the new tool to deliver the justice. One of them Passagens. Revista Internacional de História Política e Cultura Jurídica Rio de Janeiro: vol. 13, n o 2, maio-agosto, 2021, p. 180-190. 190 tool is justice equity and good concise. The court has power to craft relief based on equity, justice and good concise. Therefore, the Supreme court has used the power given under Article 142 to do give complete justice (INDIAN, 1 SCC 1, 2020, p. 1239). The Court said that possession of the inner and outer courtyard will be given to a trust created by central government and the Central Government within three months of this decision shall formulate a scheme for the construction of temple. The possession shall continue vest in the hands of Central Government. The court further states that a suitable plot of 5 acers will be given to Sunni Waqf Board in Ayodhya (INDIAN, 1 SCC 1, 2020, p. 1240-1243). The Supreme Court had taken the literature and other evidences in support of this judgement. However, the Supreme Court unequivocal accepted that the Archaeology is a science and under the Section 45 of IEA. Therefore, the expert opinion on the archaeological findings can be taken and the evidentiary value will be same as it is for other discipline of science or art. The argument that it is a multidisciplinary discipline does not dilute the evidentiary value of it rather it is the strength of the archaeology.