Hearing of appeals in the Ram Janmabhoomi-Babri Masjid title dispute case failed to start Thursday and the Supreme Court adjourned the matter until January 29 after Justice U U Lalit, one of the five judges on the designated Constitution Bench, recused himself since he had appeared as a lawyer in an Ayodhya related matter in the past.
A reconstituted bench will now take up the appeals challenging the September 30, 2010 verdict of the Allahabad High Court on January 29 to fix the schedule for hearing. The High Court had ordered a three-way division of the disputed 2.77 acres site between the Nirmohi Akhara sect, the Sunni Central Wakf Board, Uttar Pradesh and Ramlalla Virajman.
Justice Lalit decided to recuse after senior advocate Rajeev Dhavan, representing one of the parties in appeal, pointed out that the judge had appeared as a counsel for BJP leader Kalyan Singh, who was Chief Minister of Uttar Pradesh when the Babri Masjid was demolished, in a contempt matter related to the demolition in 1997.
“I have no objection… It’s up to Justice Lalit (to recuse),” Dhavan submitted as soon as the bench assembled in the morning.
The CJI then consulted Justice Lalit and others on the bench and said Justice Lalit had conveyed that it will not be appropriate for him to be on the bench. “Before the Court could be addressed on any of the aforesaid issues, Dr Rajeev Dhavan, learned Senior Counsel appearing for the appellants… made a statement that a member of the Bench (Uday Umesh Lalit, J.) had appeared in a connected matter sometime in the year 1997. Dr. Dhavan has further pointed out that though he has no objection to Hon’ble Mr. Justice Uday Umesh Lalit hearing the matter, the ultimate decision in this regard is for the learned Judge to take. The said facts being pointed out, Hon’ble Mr Justice Uday Umesh Lalit has expressed his disinclination to participate in the hearing any further. We, therefore, have no option but to adjourn the case to another date for the same purpose i.e. to fix a date of hearing and to draw up a time schedule for hearing of the case,” the CJI said.
Dhavan also questioned the CJI’s decision to constitute a five-judge bench comprising himself and Justices S A Bobde, N V Ramana, Lalit and D Y Chandrachud to hear the matter, by way of an administrative order.
He contended that there was already a judicial order referring it to a three-judge bench. The reference was to the September 27, 2018 decision of a three-judge bench headed by then Chief Justice Dipak Misra which had ruled against referring the 1994 judgment of the court in the M Ismail Faruqui and Others vs Union of India case to a Constitution Bench, while making clear that it will be heard by a three-judge bench.
The Faruqui judgment had come on a plea challenging the constitutional validity of the Acquisition of Certain Area at Ayodhya Act,1993, under which 67.703 acres were acquired around the Ramjanmabhoomi-Babri Masjid complex.
When the Ayodhya matter came up before the bench headed by CJI Misra last year, Dhavan had raised objections to a statement in the Faruqui judgment that a mosque was not an “essential part of the practice of the religion of Islam and hence, “its acquisition (by the state) is not prohibited by the provisions in the Constitution of India”. The petitioners had contended that earlier decisions in the Ayodhya case were influenced by this statement and hence it should be re-examined by a Constitution Bench.
On Thursday, the court rejected Dhavan’s objections to the constitution of the five-judge bench.
The order said “the decision to post the matter before a Five Judges Bench had been taken by the Hon’ble Chief Justice on the administrative side in exercise of his powers under Order VI rule 1 of the Supreme Court Rules, 2013 which mandates that ‘every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice’.”
“Order VI rule 1 of the Supreme Court Rules, 2013 prescribes the minimum numerical strength of the Bench and it is always open for the Hon’ble Chief Justice to decide… to constitute Benches of such strength that the Hon’ble Chief Justice deems proper. This is how the present bench of five Judges has been constituted which is, in no way, contrary to what has been laid down by the Three Judges Bench in the aforesaid judgment and order dated 27th September, 2018.”
The day’s proceedings also provided an insight into how ‘weighty’ the matter was. The CJI said the Secretary General of the Registry had informed “that in the four suits, out of which these appeals have arisen, in all, 120 issues have been framed for trial”.
Besides, “a total of 88 witnesses were examined. The depositions of the witnesses run into 13,886 pages. A total of 257 documents were exhibited…The judgment runs into 4304 printed pages (according to the Registry, 8533 typed pages). The Bench has been informed that the original records are lying in 15 sealed trunks in a room which has also been sealed. Whether the depositions and documents which are in Persian, Sanskrit, Arabic, Gurmukhi, Urdu and Hindi, etc. have been translated is not clear,” the CJI said in the order.
Referring to previous orders, the CJI said though the counsel for the parties had attempted to submit some translated version of the evidence, “there is a dispute with regard to the correctness of the translations made”.
Accordingly, it asked the Registry to “physically inspect” the records “which are lying under lock and key; make an assessment of the time that will be taken to make the cases ready for hearing by engaging, if required, official translators of the requisite number and give a report… to the Court” by January 29 when the new bench would sit.