Verdict On Ayodhya Before CJI Dipak Misra Retires? No, Say Court Clocks

The long march to a decision on the Ayodhya dispute will have no short stops any time before the 2019 Lok Sabha elections. Misleading headlines have been feeding a perception that the Supreme Court has reserved judgment on the Ayodhya dispute. In reality, however, the apex court has merely heard arguments, reserving its order, on a technical issue—should the basis for the 2010 Allahabad High Court ruling first be decided by a Constitution bench of the SC or will the 1994  Ismail Faruqui ruling apply?

Chief Justice of India Dipak Misra, who retires on October 2, has heard and res­erved judgment on many important matters till now. This includes the recent verdict de-criminalising hom­osexuality. The appeal against the 2010 Allahabad HC judgment verdict is without doubt one of the most high-profile matters pending in the top court, but it is not likely to be decided anytime soon. The issue before the CJI’s bench is more basic. The Sunni Waqf Board has argued that the Allahabad HC judgment, which split the property into three shares, is based on a 1994 constitutional bench judgment titled ‘Ismail Faruqui’ where the majority view of the judges was that “a mosque is not an essential part of the practice of the religion of Islam...”. Appearing for the Waqf Board then, senior advocate Rajiv Dhavan had said that whether a mosque was integral to the practice of Islam (or not) should be decided by a seven-member constitutional bench, larger than the 1994 bench which had five judges.

Justice Misra will not get to decide the appeals against the Allahabad HC verdict before he retires. One reason is that the only point before the CJI and judges Ashok Bhushan and Abdul Nazeer—the three are part of a bench constituted by Justice J.S. Khehar last year—right now is whether the basis of the Allahabad HC ruling should go to a Constitution bench.

Even if CJI Misra and the two other judges do not send it to a Constitution bench, the pending appeals will take a long time. The title suits were pending from 1989 to 2010 before the Allahabad HC, which delivered a judgment running into three volumes based on evid­ence and arguments. If a lawyer starts to read from these judgments during his arguments, it would take weeks before he finishes.

CJI Misra also has the option of referring the entire appeal to a Constitution bench. There is certainly precedence: the CJI had himself directly referred a petition challenging the practice of polygamy amongst Muslims to a Constitution bench. But a large bench would take time to decide the Ayodhya dispute because it would have to consider arguments made in day-to-day hearings and then write a judgment. It took around two months to finish the arguments just on whether the current issue should be sent to a Constitution bench or not. Initially, in February, the CJI had mentioned that he would like to treat it as a land dispute.

Dealing with the Ayodhya dispute hearings is not easy. When arguments concluded on August 20, 2018, the order noted the names of more than 200 lawyers who had appeared for various parties in the legal tussle that has now been pending for eight years in SC.

There have been frequent flare-ups in the court. Last December, the court had witnessed a high-voltage drama. Former Union minister and senior advocate Kapil Sibal was appearing for the Waqf Board and had insinuated that the court was giving in to pressure to decide the appeal before the 2019 Lok Sabha elections. The Sunni Waqf Board, an apolitical, religious organisation, was quick to disown Sibal’s views, which, they said, were not representative of their eage­rness to promptly resolve the appeals. Some lawyers had pushed to initiate criminal contempt of court proceedings against Sibal, but the attempts failed when attorney general K.K. Venugopal opined against it.

Justice Misra’s two predecessors, Justices T.S. Thakur and J.S. Khehar, did not get a chance to take up the dispute. Justice Thakur had been keen on it, but there were several delays, such as imp­leading the legal successors to the plaintiffs who had died since the case was taken up by the Allahabad HC. After all, the related cases date back to 1950. Till early this year, the papers of the appeal were also incomplete. After Justice Thakur, Justice Khehar had skimmed past the issue with a suggestion for an out-of-court settlement, offering to med­iate himself. That had catapulted the self-appointed mediator in the Ayodhya dispute, godman Shri Shri Ravi Shankar, back into the picture, but he fell off the map somewhere along the way. The parties are not keen on a settlement, including the Vishwa Hindu Parishad, which emphasises that ‘archaeological evidence’ supports its claims.

Along the way, the SC also weeded out intervenors such as BJP lawmaker Subramanian Swamy. The court said a title suit could only be decided between those who stake claim to the property in dispute, and additional solicitor general Tushar Mehta agreed with the view. Swamy has not given up, however, and has returned to a writ petition in which he had sought his fundamental right to pray at the disputed site since he believes it to be the birthplace of Ram.

While the appeal has been pending, there have been controversial statements made in public. RSS chief Mohan Bhagwat said at a public function in Karnataka that the temple would be built at the disputed site. Last month, UP CM Yogi Adityanath said that “God Ram would decide the date for the construction of the temple”. Days later, Aditya­nath’s cabinet member, Mukut Bihari Verma, said that the BJP would fulfill its promise of building the temple. In 1968, the SC had held the then Bengal CM P.C. Sen in contempt of court for giving a speech on the radio while a law he had passed was still being decided by the Calcutta High Court. It remains to be seen if action will be taken when it comes to ‘Ram Janmabhoomi’ statements.

Though the Ayodhya title suit will linger for some more time, building the temple is likely to remain in the BJP’s manifesto at least for the next election. Meanwhile, Justice Misra has perhaps got the chance to steer a controversy away from his chequered legacy.

Pending Cases

• 13 appeals against the 2010 Allahabad HC judgment

• Subramanian Swamy’s petition seeking to assert his ‘right to pray’ at the site

• Mosque demolition criminal case in Lucknow against senior BJP leaders and others, with April 2019 as the deadline

What CJI’s Bench Has To Decide Before He Retires

• Whether the point of law in the appeal (in part, or entire appeal) should be referred to a Constitution bench

The Legal Point

• Whether a mosque is essential/integral to Islam

What To Expect

• Depending on upcoming order, appeal could continue with a three-judge bench, minus Misra; or Constitution bench will take it up in part or whole