The Ayodhya case

The Supreme Court’s decision not to prioritise the hearing of the Babri Masjid title dispute stems from its understanding of issues that require its immediate attention.

January 8, 1993: CRPF jawans at the disputed site, after they took control of the area with the newly constructed Ram temple, in Ayodhya.

The Supreme Court’s calendar depends much on the world view of its master of the roster, the Chief Justice of India (CJI). Thus, when Justice Dipak Misra, was succeeded by Justice Ranjan Gogoi as CJI on October 3, it signified not just a change at the helm of affairs of the apex court but a change in its world view.

On October 29, the CJI announced in open court that the appeals in the Babri Masjid title dispute would be heard by an “appropriate bench” in January 2019 and that the new bench would decide the course of hearings. When pressed by the Uttar Pradesh government for an early hearing of the case, the CJI said the court had its own priorities. The CJI reiterated the decision on November 12, when counsel for the Akhil Bharat Hindu Mahasabha sought advancing of the hearing.

The view that the new CJI sought to delay the hearing of the matter may not be entirely correct. On September 28, when the three-judge bench presided by Justice Misra ruled that there was no need to refer the question of whether prayer at a mosque is integral to Islam to a larger bench, the majority judgment authored by Justice Ashok Bhushan on behalf of himself and the CJI made the surprise announcement that the hearing in the title dispute would resume on October 29.

Justice Bhushan’s announcement raised eyebrows because he knew that the next CJI was to assume office on October 3, and as the master of the roster, it was the new CJI’s prerogative to assign cases to the bench and decide when they were to be listed. It was obvious that a new bench, after filling the vacancy caused by Justice Misra’s retirement on October 2, had to be constituted before hearings could resume in the case. Therefore, it was not clear why Justice Bhushan and the then CJI, Misra, jumped the gun to announce the next date of listing of the case while pronouncing the judgment on the preliminary issue of reference to a larger bench.

Many considered it an act of impropriety as it suggested that the outgoing CJI sought to tie the hands of his successor in the matter of listing of the case on a particular day. The listing of the case on a particular day is the CJI’s administrative decision and ought not to have been hinted at in the course of pronouncing of a judgment in another case even if the issue being dealt with has a bearing on the pending case.

Even if the new CJI does not list the case immediately, the aggrieved petitioners are not without a remedy. They can “mention” it before the CJI before the hearings start on a day and seek the resumption of the hearing at the earliest explaining the urgency. Thanks to the bench, on September 28, fixing the next date of listing, the petitioners had no compulsion to explain their “urgency” before CJI Ranjan Gogoi. He had made it clear from the beginning that he would not agree to early listing of any case unless the reasons cited by the counsel for doing so were convincing enough.

Among the convincing reasons that the CJI explained are the impending demolition of a property under dispute or the imminent arrest of a person whose freedom is at stake. The premature release of a person who is likely to influence the witnesses is also a plausible reason for early listing. Cases in which the High Courts have confirmed the death sentence of a convict also require immediate intervention from the Supreme Court in the form of a stay as it would take many years for the convicts’ appeals to be heard in the normal course of things.

It was obvious that none of these reasons could be cited in the case of hearing of appeals in the Babri Masjid title dispute and that they ought to be heard in the normal course of things.

For Justice Misra, the appeals against the 2010 judgment of the Lucknow Bench of the Allahabad High Court in the Babri Masjid title dispute, which have been pending in the Supreme Court since 2011, required to be prioritised over other cases simply because they have been waiting to be heard for a long time. But the pace with which he scheduled the hearings in the case made many wonder whether the court wanted to complete them in haste so as to deliver a verdict before his term expired on October 2.

Although he expressed the court’s resolve to consider the dispute merely as one involving the ownership of the land on which the Babri Masjid stood before its demolition on December 6, 1992, he could not delink it from the larger questions of secularism and the practice of Islam. Besides, his reluctance to concede the request of some senior counsel to constitute a larger bench (currently it is a three-member bench that is hearing the case) made one wonder whether he was anxious to avoid the possible delay and uncertainty of a verdict before the next general election if the case was heard by a bench of five judges.

But the composition of the bench that CJI Misra constituted to hear the appeals left none in doubt that he had sought to inspire the confidence of the minorities or at least convey an impression of impartiality. Besides himself, the bench included Justice Bhushan and Justice S. Abdul Nazeer. On September 28, in the judgment of the bench on the reference matter, Justice Nazeer dissented from the majority for sound legal reasons.

It is not clear whether the new bench to be constituted by the CJI will include Justices Bhushan and Nazeer, as dictated by convention, as these two judges have previously heard the case. However, nothing prevents the CJI from constituting a new bench with fresh faces if he thinks it is justified.