Review pleas dismissed in Ayodhya land title case, curatives unlikely to fare better

A view of the Supreme Court of India.

The curtains were brought down on the Babri Masjid-Ram Janmabhoomi land title case on December 12 with the Supreme Court’s Constitution bench dismissing the review petitions filed against the November 9 judgment, which found Hindus having a better possessory claim over the disputed land at Ayodya on balance of probabilities. The judgment, while awarding the land where the Babri Masjid stood before its demolition by kar sevaks in 1992 to the Hindus to build a Ram temple, also directed offer of five acres at an alternative location within Ayodhya to the Sunni Wakf Board for the construction of a mosque as restitution.

The Constitution bench which delivered a unanimous judgment on November 9 had to be reconstituted following the retirement of the then Chief Justice of India, Ranjan Gogoi, who had presided over the bench. His vacancy on the bench hearing the review petitions was filled by Justice Sanjiv Khanna. The other members of the bench were the current Chief Justice of India, S.A. Bobde, and Justices D.Y. Chandrachud, Ashok Bhushan and Abdul Nazeer.

In its brief and perfunctory order, the bench said:

“Applications for listing of Review Petitions in open court are dismissed. We have carefully gone through the Review Petitions and the connected papers filed therewith. We do not find any ground, whatsoever, to entertain the same. The Review Petitions are, accordingly, dismissed.”

In all, there were 18 review petitions before the bench, which divided them into two categories: those filed by parties to any of the four title suits and those who were not parties, but nevertheless sought permission from the court to file review petitions. The four title suits were filed by Gopal Singh Visharad (1950), Nirmohi Akhara (1959), Sunni Waqf Board (1961) and Ram Lalla Virajman (1989). The bench reportedly discussed the review petitions by the parties in detail in chamber without the presence of lawyers.

Review petitions, as a norm, are first considered by the judges who delivered the main judgment in their chambers, and if they find any merit in them, they agree to hear them again in open court.

The bench refused to consider the second category of review petitions filed by those who were not parties to the suits, denying them the requisite permission. This stems from the apprehension that allowing non-parties to the dispute to file review petitions could set a wrong precedent and thereby disturb the finality attached to any litigation. Those who filed the non-party review petition included eminent intellectuals like Irfan Habib, Prabhat Patnaik, Harsh Mander and Nandini Sundar. They were signatories to the petition filed by 40 civil rights activists, who were concerned that the verdict went against the syncretic culture of the country and its secular fabric as envisaged in the Constitution.

While the Sunni Waqf Board refused to file a review petition, the All India Muslim Personal Law Board (AIMPB) sought reconsideration of the November 9 verdict, hoping to engage senior counsel Rajeev Dhavan to articulate the grounds for review. Another review petition was filed by Maulana Syed Ashhad Rashidi (president, Jamiat Ulama-i-Hind), legal representative of M. Siddique, one of the original Muslim plaintiffs in the title suit. Both contended that the November 9 judgment was based on Hindu faith rather than on secular principles, and that it amounted to rewarding illegal acts of trespass and demolition committed against the mosque. The Hindu Mahasabha and the Nirmohi Akhara had also sought review, expressing their own dissatisfaction with the November 9 verdict. While the Mahasabha objected to the award of land for construction of mosque as compensation to Muslims, the Akhara sought reconsideration of the court’s dismissal of its claim as a shebait of the deity.

The Jamiat Ulama-i-Hind, and the Sunni Waqf Board expressed dismay and disappointment at the court’s decision to dismiss the review petitions.

The Supreme Court, in its review jurisdiction, agrees to reconsider its main judgment in a case if there are errors “apparent on the face of the record”. The discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him or her during the hearing of the case resulting in the main judgment is another valid ground for review.

Although the review petitioners might have pointed out many errors apparent on the face of the record in the November 9 verdict, the Supreme Court’s Constitution bench has used its discretion to reject such claims without stating reasons. This cannot but cause dismay to many who expect the highest standards of judicial accountability from the court.

The dismissal of the review petitions has now left a small window of opportunity for the litigants, in the form of curative petitions, to press for reconsideration of the verdict. But the grounds for entertaining a curative petition are narrower than what the court normally insists on for review petitions. One of the grounds is that the petitioner must show that the court erred in denying natural justice, that is, the opportunity of being heard. The second is that any of the judges who had delivered the main judgment must have concealed a conflict of interest and, therefore, the possibility of being biased in favour of or against either of the parties to the dispute. As it is unlikely that any of these two grounds could be invoked, the chances of a curative petition being entertained in the case are slim.