SC’s no to immediate reference of Ayodhya case to larger bench

Team Udayavani, Apr 7, 2018, 8:57 AM IST

New Delhi: The Supreme Court today did not agree to the fervent plea of an original litigant that the Ayodhya land dispute should be immediately referred to a larger bench as the issue was far more important than that of polygamy among Muslims, for which a constitution bench was constituted.

A special bench, headed by Chief Justice Dipak Misra, made it clear to senior advocate Rajeev Dhavan, representing M Siddiq, that it will decide whether to send the matter to the larger bench only after hearing all parties to the litigation. Siddiq, now deceased, is one of the original litigants in the Babri Masjid-Ram Temple land dispute.

“You (CJI) sent pleas to strike down polygamy immediately to the Constitution Bench, but you are reluctant to send the Babri Masjid case to the Constitution Bench. Is polygamy more important than the right of Muslims to worship in a mosque,” Dhavan posed before the bench which also comprised Justices Ashok Bhushan and S A Nazeer.

Former Attorney General and senior advocate K Parasaran, appearing for a Hindu group, opposed the plea and said it was the prerogative of the apex court to decide on which bench would hear the case.

Parasaran referred to the decision of the apex court that a five-judge bench would hear the petitions against the National Judicial Appointment Commission (NJAC) Act, despite the submission that earlier seven-judge benches had heard the second and the third judges cases that had brought the collegium system of appointment into force.

The hearing in the sensitive case began in the afternoon with an unusually unpleasant exchange of words between Dhavan and Additional Solicitor Generals (ASGs) Maninder Singh and Tushar Mehta. It started just after the bench assembled at 2 PM after ASG Singh apparently asked Dhavan, who was standing to advance his submissions, to move a bit.

“Sit down, Mr Maninder Singh,” Dhavan said at top of his voice, leading the ASG to retort by saying “behave yourself, Mr Dhavan”. Later during the day, Dhavan also made some uncharitable remarks against Parasaran, which led one of the lawyers to lodge a strong protest.

At the outset, Dhavan, who appeared for the legal representatives of the late Siddiq, referred to a recent apex court order by which the pleas, challenging the practice of polygamy and ‘Nikah Halala’ among Muslims, were sent to a five-judge constitution bench.

“A constitutional explanation was required…this (Ayodhya case) is far more important matter than the polygamy,” he said, adding that he was not required to advance the submissions for referring the case to a larger bench and it should be sent immediately.

“What is more important…The press is here, I am here, please say which is more important for you,” he asked, adding was it necessary to argue if the matter was going to be referred to a larger bench. “Why address the press in your arguments,” the bench asked.

“Because it is their right to know. I want the people of India to know. Press has the right to attend the hearing unless court makes it in-camera,” the senior lawyer replied, adding “the nation wants to know it”. Dhavan then referred to the 1994 verdict in the case of M Ismail Faruqui and assailed certain findings and observations like a mosque is not integral to the prayers offered by the followers of Islam.

The Faruqui verdict had dealt with the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993 by which the Centre had then taken over the disputed site and the adjoining land. The senior lawyer said, “the shadow of Ismail Faruqui has fallen on the minds of the Lucknow bench of the Allahabad High Court (which decided the Ayodhya title case).”

He said the Faruqui judgement was needed to be referred to a larger bench as it had said that mosques are not integral to Islam under the Muslim Law and hence, this will have a bearing on the present case as well. He also referred to some other verdicts in support of the arguments that this case should be sent to a larger bench.

Two ‘rath-yatras’ were taken out by BJP leaders that had led to the destruction of the mosque, he said, adding that the land, where the mosque is situated, belongs to the ‘Allah’ even after the demolition of the mosque. He also referred to the judgements that had said that some miscreants had demolished the mosque on December 6, 1992. The advancing of arguments remained inconclusive and would resume on April 27.

Earlier, the apex court had said it would decide on whether to refer to a larger bench the issue of reconsideration of the entire 1994 verdict dealing with the acquisition of the disputed land in Ayodhya or parts of it. The special bench of the apex court is seized of a total of 14 appeals filed against the high court judgement delivered in four civil suits.

A three-judge bench of the Allahabad High Court, in a 2:1 majority ruling, had in 2010 ordered that the land be partitioned equally among three parties — the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.