Archaeological evidence as legal testimony
M.S. GANESH, RABINDRA K. HAZARI and SHEREEN RATNAGAR
AMONG the places of worship that certain political parties wish to ‘reclaim for Hindus’ is the site of the now demolished mosque at Ayodhya. A combination of circumstances prompted some archaeologists to announce to the public that they had ‘proof’ of the existence of a medieval Ram temple preceding the construction of the mosque by Mir Baqi. The High Court of Allahabad is currently hearing a case that will decide, among other things, whether this archaeological claim is true, and whether Hindus have been worshipping at this very spot as the birthplace of the deified Ram ‘since time immemorial’. The dispute is over the religious character the site has possessed over the centuries. The matter assumes a particular degree of piquancy as no one knows what actually lies under the mosque.
As one of the aims of this collection of papers is to distinguish the present political efforts to rewrite history from historical practice within the social sciences, we set out to ask, in this paper, in what manner the distinction emerges when a controversy is debated before the judiciary. We need also to write about court deposition as a learning experience for scholars who see themselves as mainstream liberals.
If an individual were, in the public interest, to go to court to plead, say, that a particular site had certain features that merit its inclusion in the list of protected monuments, that court might declare its lack of competence in this sphere and direct the petitioner to the concerned state authority. But when there is a dispute over a place with contested religious claims, and it is your word against mine, the court has no choice but to hear both sides. (We hasten to point out here that the High Court has not been called to decide where Ram was born.)
The resolution of a controversy in the court is founded on the burden of proof. The burden of proof in any suit lies on that person who makes an assertion as to a fact – on the party who would fail should no evidence at all be given on either side. In this instance, the burden of proof lies with those who assert that there was a temple under the mosque and thereby claim the right to build a temple on the site.
Not everything needs to be proved to a court – not, for instance, the laws in force, geographical divisions, seals authorized by law, etc. But for the rest, a court resorts to appropriate books or documents of reference. It may refuse to take judicial notice of any fact cited by a litigant unless and until such books or documents are produced. Opinion witnesses are thus called in. At the outset their credentials are spelt out to establish the value of their testimony as specialists in the concerned field. All facts that either support or are inconsistent with the opinions of the experts are relevant. The scholarly assessment of such facts by experts is heard out, but it is the court, the non-expert, who will adjudicate on the issue, on what had once been a set of internal or intra-disciplinary issues.
Once adjudication occurs and findings of fact are recorded, the ‘true factual position’ is taken out of the hands of the scholars concerned. History stands ‘rewritten’ by the court, under the sanction of law.1 Until such a court decision is reversed or neutralized by a superior court, or revised at a time when another suit comes up, this ‘history’ is final. Scholars may only comment on the decision. They cannot contest history as settled by the court.
With such an intriguing outcome ahead, where does the specialist (in this case the archaeologist2) find him/herself placed? Bits and pieces of material from a dig here or a scratching of the soil there, flaunted in seminars and popular writing as ‘proof’, fail to count in court if it transpires that the circumstances of recovery (say, the digging was unauthorized) are suspect. However, technicalities are not the only points of interest, and even the scholar who sees him/herself as being true to the discipline, experiences a process of self-discovery. A new consciousness emerges of the strengths and weaknesses of routine procedures of academic argument that are otherwise taken for granted.
Most academics learn, over the years, how to counter uncomfortable questions or challenges to their interpretations. But when the debate moves out of the orbit of scholarly journals, seminar rooms and the media, they cannot take the audience for granted, or assume that the starting assumptions are known to all concerned. They are speaking neither to like-minded persons (‘our gang’, gathered here to cheer rather than to criticise), nor to an adversary in a television studio, nor to a lot of young, uninformed minds at a university, from the superior position of their academic rank. Instead, the debate has moved into the hearing of informed and critical, though non-specialist, legal minds whose academic status, assumed or bestowed by the peer group or by society, is besides the point. It is the nature of the evidence produced before the court, the internal logic, and the validity of arguments that count.
In contrast to an academic conference, a court of law adjudicates a dispute so that expert witnesses face a novel, adversarial situation, war by other means. While no university seminar or workshop would presume to establish a conclusion to an existing debate, or to decide who ‘wins’ or who ‘loses’, court decisions are indeed conclusive and there are only limited grounds for appeal against them. And thus the rules of argumentation are different. Your rights and liabilities are the concern of the court. Experienced lecturers may go unprepared to a class or meeting and speak extempore to an audience whose questions can be side-stepped or overridden, but in court one is compelled to answer each question fully (and truthfully) without prevarication, on oath.
It is a salutary lesson to be debarred the luxury of countering a (hostile) question with another question, an old trick of the seminar circuit and conference routine. Further, precision of language becomes important as never before. Imagine the reaction of a court if one were to pronounce that a shopping centre is a ‘space that combines hegemony with harmony and simultaneously displays the positioning of women as objects of knowledge!’ Professional jargon about sections, foundation trenches, etc. has to be correctly and concisely defined, on demand. And you cannot get away with informing the non-specialist that if he does not understand your jargon, the problem lies with him.3 What is more, there is no room for the extended analogies or anecdotes that teachers use with great effect in their lectures as explanatory and discursive devices. In court, brevity is the soul not only of wit but of prudence.
However learned an expert witness, it is the knowledge, reputation, and skills of his advocate that matter. A witness will ordinarily present his case not in his own way, but one mediated by a trial lawyer, who will decide what aspects shall be highlighted and how, and what needs to be relegated to the background in the building up of a case. The lawyer’s is invariably the last word on the content of the deposition, not least because every word of it will be rigorously scrutinized by opposing counsel during cross-examination. The trial lawyer is a ‘translator’ who imbibes the wisdom of one discipline and transposes it into the language of another. If an archaeologist should fail to understand this, (s)he pays for it in the witness box. It is the trial lawyer who develops the skill of not only assimilating the material of a discipline like history, but gauging its import.
To be effective, trial lawyers need to know the work and professional backgrounds of the witnesses and to assess whether they have the authority to speak on a particular point. They need to be familiar with a field so as not to be swayed or intimidated by its jargon, and to instantly recognize inconsistencies in argument. Further, they need to be able to assess the reliability of the evidence cited, and also be aware of changing views and approaches in a particular discipline.
For their part, scholars work in a social milieu. They interact in various personal ways with their colleagues. Friendship, departmental affiliation and political conviction colour these interactions. In a book review one may refrain from challenging a senior scholar, or, because of friendship, avoid pointing out an error across the conference table. A professor may advise a student that he is not certain about a particular matter, but that, if Dr. X has dated a feature so, the student may accept that dating for the time being. Yet, it is quite another matter to announce, as a court witness, that if Dr. X has said something, it must be correct – that is tantamount to stating, ‘Y is correct because X said so.’ Outside the academic circuit, then, unthinking and spontaneous loyalties carry the risk of projecting a disagreement over evidence and mode of reasoning to the level of two ‘camps’ pitted against each other. The bottom line is that certain findings of others may be accepted as working hypotheses, but scholars do have the responsibility of either going into such matters themselves, or distinguishing clearly between their own findings and those (of others) that are taken on trust. The finer points of intellectual integrity thus unwittingly get exposed in court.
When a scholar writes or reads a paper for the peer group, the parameters are defined. The academic value of the paper, in fact, depends largely on how a problem has been constructed or structured. But in the courtroom the parameters are set by others. The scholar often has to do some quick adjustment to an unfamiliar – sometimes incomprehensible – frame of reference. In the process, emphasis on a kind of positivism comes to the fore, so that the ‘primacy of primary sources’ takes pride of place. Let us consider how.
The reinterpretation of material and the application of newly constructed theories to known material, are acceptable practices. In fact, dozens of history and archaeology books cast in this mould are considered milestones in their disciplines. But when we need to win friends and influence the organizers of the next international conference, it may be inappropriate to ask a learned professor if he had read his Puranic sources on a deity in the original, or if he could explain the context in which a particular Sangam poem makes reference to sailing boats. Archaeologists avoid asking colleagues whether they have themselves drawn the sections of their sites. And no archaeologist visiting the excavations of a colleague would be so tactless as to drop a pebble down the side of a trench to check whether the section is vertical, much less go and sieve the dumps! And so, scholars do get away with conclusions that they have no right to make.
Contrast this with a court procedure in which a witness emphasizes the importance of a newly-discovered inscription, and makes categorical statements about its evidential value. If it turns out (on questioning under oath) that (s)he has never made a sustained study of palaeography or Sanskrit, and is not academically qualified to interpret the inscription, the outcome may only be acute discomfiture.
Yet, in this context there is another kind of problem. The primacy of first-hand acquaintance with a site or trench may be repeatedly argued, to imply that the only reliable testimony comes from ‘those who were there’ and excavated that particular site. It is admittedly a handicap not to have worked in a trench or seen a mosque for yourself. But there are ways and ways of ‘seeing for yourself’. Can a witness recall the location or dimensions of certain features? Did (s)he observe a certain detail? If not, of what use is that first-hand testimony?
Second, surely no excavator of a site is granted the privilege of being the sole arbiter of its interpretation. If we were to push that logic too far, we would have to make the absurd statement that Professor X has no right to publish a book on the megaliths of the southern Deccan, because he himself has dug no more that a dozen of them (they exist by the thousand). Third, in the history of Indian archaeology, some of the most stimulating work has been polemical in nature. It includes a radical critique of the Archaeological Survey’s published results of field work in Kathiawad in the 1960s and the questioning of the published chronology of Kausambi (a key iron age site near Allahabad) on the basis of a re-analysis of the published section and stratigraphy, both critiques by scholars who themselves never did the original exploration, excavation, or section interpretation.
The assumed superiority of the views of ‘one who was there’ need not stand for long in court. We cannot take positivist logic to extremes. After all, field archaeologists the world over know that site directors are often absent from their excavations at the time when crucial finds have been unearthed,4 and thus have not seen their stratigraphic context for themselves. (In archaeology, the latter – house floor or pit, for instance – comprises a critical component of the data.)
By the same token, if an archaeologist went to a site days after an accidental discovery was made there, it is as good as not having ‘been there’ – because the context has been lost. There is no professional to vouch for the precise find spot, only hearsay. It then follows that in court it is only universally established procedures of data recovery and data recording – basic issues, unfortunately often neglected in peer-group discussions – that stand up to questioning. This can force a welcome degree of awareness on one deposing in court.
Material that is recovered by methods that subvert the basic principles of data recovery, principles that apply wherever archaeology is practised, does not count as evidence. Further, in the social sciences we adhere to the proposition that nothing is ever proved by us with finality, because we cannot replicate past situations by experiment. Yet social scientists also hold that any hypothesis can be refuted by exposing its internal inconsistencies or its methodological and evidential inadequacies, or else when new finds come up that point to other conclusions. Thus chance finds can say only so much, as all serious students of archaeology will acknowledge.
Obviously, having to testify in a court would be bad news for post-modernists in the habit of rushing to agree with their critics when things get hot for them at conferences. All academics have at one time or other preached to their students about changing historical paradigms and shifts in starting assumptions, but it may be difficult to convince a court that both their own statement and a contesting statement by the opposing party are true. While doubt, probability, and reasonable inference are the obligatory ingredients of social science reasoning, we need, in Andre Beteille’s words, ‘a disciplined as against a self-indulgent attitude towards facts.’ Essential as it is to point out that the Critical Edition of the Ramayana cannot be regarded as the urtext, it requires conviction and confidence to insist that a trench section can be drawn and read in only one way and that stratigraphic sequences do not admit of multiple views.
Politically motivated interpretations are always literalist. Its practitioners are uncomfortable with concepts, abstractions and theory. They argue that an adversary may have substantial excavation experience, but none in ‘northern India’, and hence cannot be a reliable witness on the stratigraphy of a site in the Gangetic belt. They do not think in terms of methodology, leave alone universal methodological principles. Surely the methodology underlying archaeological data recovery is neither geographically circumscribed nor culturally embedded!
Again, it is a literal approach that holds that the place where a particular ruler’s inscription has been found can be no other than one where that ruler organized construction activity – literal, because no question is asked about other reasons why that inscription could have been left or placed there in the past. It is like arguing, ‘the book lies on this table; the book is mine; therefore this table is mine.’ The legal process, instead, stresses the importance of ‘chains’ and ‘links’ between disparate pieces of circumstantial evidence.
Aside from vulgarizing the concept of proof, reactionary projects also resort to wholesale disregard of academic traditions (such as historical linguistics in the case of the Aryan problem) and wishing away of treatises that refute their theories. At academic conferences, speakers with greater influence tend to receive a closer hearing than others do. But the legal system is a levelling one. Imbued as court proceedings are with solemnity, discipline and a certain etiquette, courts, in their attempts to give equal opportunity to both sides, can be those institutions in which positions inconvenient to those in power can be expounded.
We suggest that the biggest casualty of the court experience is the propensity of the mystifiers, revisers, and repressors of the truth to assume the ignorance of non-specialists and to believe that they can thereby get away with fabrications. It has become a habit for a few with lung power and political patrons in the highest quarters to cut corners and to dumb down. Sweeping claims about the discovery of ‘incontrovertible proof’ have been endlessly repeated, almost as a habit. To those ensconced in authoritarian situations it must come as a shock to find their categoric statements being questioned down the line in court.
As for mainstream practitioners, we hope that university departments raise an awareness amongst students about the misuse of the concept of proof, and the dangers of taking refuge in an assumed mystique. It would not do any harm to the cause of professional history/archaeology for academics to laugh at the tricks of their trade. And we can press afresh for a genuinely liberal spirit – starting with self-censorship on what people see as ‘cronyism’ and a greater openness to criticism – in academia.
Once an academic controversy is taken through the portals of a court, it stands withdrawn from the perimeters and constructs of the concerned academic disciplines and is placed squarely in the domain of law for its resolution. In that event, evidentiary proof of facts comes to be differently construed. Experts may think they have the last word, but it is the court that will sift the documentary evidence as well as the expert opinions. Thus it is really the court that has the last word on the last word.
1. It is, of course, possible that the court may conclude that nothing decisive can emerge from the contrasting and contradictory testimonies recorded. It may thereby dismiss the suit.
2. The argument about a temple having been demolished to make place for the mosque, and the argument that there is no such evidence, are both essentially archaeological in nature.
3. This is a defensive device that archaeologists resort to a little too frequently, in the presence of historians, geographers, and other social scientists.
4. The Archaeological Survey of India has found it necessary to include a clause, in its permits for excavation, specifying the maximum period a field director can spend away from his site while excavation is going on.