War of words in Supreme Court over timing of Ayodhya hearing, next date February 8

Though Kapil Sibal did not mention elections, it was apparent to all present that he wanted the court to hear the matter only after the 2019 elections to Lok Sabha.

Written by ANANTHAKRISHNAN G | New Delhi | Updated: December 6, 2017 9:40 am
Ayodhya hearing on February 8 The court finally agreed to give the parties time until February 8. (Express file photo)

THE MUCH-AWAITED hearing in the Supreme Court on the Ayodhya lawsuit over the title to the disputed Ramjanmabhoomi-Babri Masjid site turned into a political slugfest Tuesday with lawyers for Muslim appellants questioning the “hurry” to hear the matter now and demanding that it be referred to a Constitution Bench and the hearing be put off till July 2019.

Senior advocate Kapil Sibal, appearing for the Uttar Pradesh Sunni Central Wakf Board, told a bench of Chief Justice of India Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer: “Why was it not heard earlier? Why suddenly now? …This is perhaps the most important litigation in the history of India because it will decide the country’s future… It has serious ramifications… So send it to five or seven judges… Please hear the case which has ramifications on polity of India… for July 2019.”

Though Sibal did not mention elections, it was apparent to all present that he wanted the court to hear the matter only after the 2019 elections to Lok Sabha. The court, however, rejected the request and fixed February 8 for the next hearing. “We are sure the learned counsel for the parties will come prepared to argue the matter and shall not seek any adjournment,” the bench said, while asking them to finish pending paperwork.

Earlier, Sibal told the court he was “also aggrieved by the fact that a person who is not a party mentions it (the case) and it is listed”. He did not take any name but it was a reference to BJP leader Subramanian Swamy who had mentioned the matter in July for early hearing before a bench headed by then Chief Justice of India J S Khehar.

Swamy had told the court then that he had been allowed to intervene in the case and urged it to the hear the matter at the earliest, saying the appeals — against the Allahabad High Court verdict of September 2010 which had split the disputed site among three parties — had been pending for the last seven years. The bench had not given him any commitment but had said that it “will take a decision on it”.

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The wait outside the Supreme Court on Tuesday (Experss Photo/Tashi Tobgyal)

Imputing political motives to Swamy’s request, Sibal referred to a letter written to the Prime Minister on efforts being made to expedite the hearing and said that construction of the Ram temple in Ayodhya was part of the BJP’s election manifesto.

“Why should the court fall into this trap?… Somebody is pushing the party manifesto,” he said. This drew protests from senior advocate Harish Salve who appeared for one of the Hindu parties in the suit. “Yes, title suits sometimes have consequences outside the court, but I don’t think the court should be concerned about that… It is disturbing… They are presuming which way the court will decide… Why all this talk of what will happen to secularism?”

“Do we know what will the court decide?… Supreme Court should decide on the legality of the High Court order, not on the basis of repercussions it would cause… The very fact that they have asked for date of July 2019 is reason enough why the court should start hearing today itself… They are giving a very wrong message… That will mean this court has an eye on what is going to happen,” Salve said. Justice Bhushan, too, objected to Sibal’s submission, and said, “You are going back on what you said earlier. You had said take it up in January, now you say July 2019.”

Sibal repeated, “Yes, I am saying so, and I say it with passion.” At this, Justice Bhushan said, “You are making it non-serious.”

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Senior advocate Rajeev Dhavan, representing a Muslim appellant, said the matter was not just about a title suit but something that touched the very basis of secularism. He cited a 1994 case decided by a Constitution Bench of the Supreme Court. He said the judgment stated that a mosque was not integral to Islam and that prayers could be offered anywhere. “So mosques across the world are irrelevant?… It is not just insulting, but also binding on you (the Bench),” he said. “At the root of the question is the mosque… They say mosque is not needed… Mosque is a part of Islam,” Dhavan said, adding that since it was decided by a Constitution Bench, only a larger Bench would be able to examine that.

Sibal and Dhavan also sought more time to prepare arguments in the matter, saying all documents relied upon by the other side before the High Court had not been given to them. Additional Solicitor General Tushar Mehta described this as “incorrect” and said all relevant documents had been submitted. CJI Misra said he had not fixed Tuesday’s date to begin arguments but only to hear what was the case of each side before the High Court.

He then asked senior advocate C S Vaidyanathan, who was representing a Hindu party, to make his case statement. Protesting, Dhavan said the counsel for appellants had “objections” to the “procedure” being adopted by the court and sought permission to leave the hearing. “Excuse us,” he said, as co-counsels, Dushyant Dave and Sibal, too stood up to leave. Intervening, CJI Misra said “Mr Sibal, you should not be doing this.”

Later in its order, the court referred to this turn of events and said the senior advocates seeking leave to recuse themselves “was shocking and surprising and when we proceeded to record so, prayer was made not to do so and we, accepting the fervent request made by the counsel, refrain from doing so”.

Dave repeated the charge that Swamy had mentioned the matter only because it was in the election manifesto (of the BJP). “I request the other side to agree to refer this matter to a Constitution Bench,” Dave said. But Salve said, “I dissent strongly.” Dave said he had heard Salve requesting the court to refer matters to Constitution benches many times earlier and also sought to know: “Why did your Lordships constitute bigger benches in Justice C S Karnan’s case and Kamini Jaiswal’s case (on the medical college bribery scandal)?”

Salve said political speeches were being made in court. “The message that this court sends out should be that this will be just another case, nothing more, nothing less,” he said. As Dave pressed ahead, Salve remarked, “I am not here for a cause, but for a client.” He also suggested that the court start the hearing and if the need arises, at some point in future, refer it to a larger bench. “This case bristles with factual controversy. Someday this question may arise — what is the role of mosque in Islam? …When that comes up, if the court feels so, you may refer it to a bigger bench,” he said. “This is not the appropriate time to hear it… If your Lordships say this is so urgent that it must be heard now, then your Lordships must explain why,” said Sibal, drawing a chorus of protests.

Lawyers for the appellants again sought more time to prepare their arguments, saying there were 90,000 pages of oral evidence that needed to be read.

The court finally agreed to give the parties time until February 8. The CJI, who maintained restraint during the arguments, did, however, say at the end: “Both the sides had a message for this court. But we know what to do. Don’t give a message to this court by telling us what message we will send out.”

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