The Leaflet

| @theleaflet_in | January 10,2019

A five-judge Constitution Bench comprising Chief Justice of India (CJI) Ranjan Gogoi, Justices S A Bobde, N V Ramana, U U Lalit and D Y Chandrachud today, January 9, 2019, adjourned the Ayodhya case to January 29, 2019 after a brief hearing in the matter and recusal of Justice U U Lalit from the case. CJI Gogoi disclosed in the Court that the bench had assembled today not for hearing the matter on merits, but to fix the time schedule for the hearing of long-pending batch of appeals against the Allahabad High Court judgment in Ram Janmabhoomi-Babri Masjid land title dispute.

Senior advocate Rajeev Dhavan appearing for one the parties brought to the notice of the Court that Justice U U Lalit, who was part of the present bench of five-judge, had been a counsel in a connected matter related to a contempt petition against the then Chief Minister of Uttar Pradesh Kalyan Singh way back in 1997. Dr Dhavan, however, immediately clarified that he had no objections whatsoever if Justice Lalit continued to be part of the bench hearing the case. Thereafter, the judges had a brief discussion among themselves, and CJI said: “My brother Justice Lalit had conveyed that it would not be appropriate for him to be a part of the present bench.”

On the issue of matter being placed before the Constitution bench despite a three-judge bench by a majority of 2:1 having refused to refer the Ayodhya case to larger bench, CJI Gogoi clarified to that constitution of the five-judge bench has been done in exercise of the administrative powers of the CJI under Order VI, Rule 1 of the Supreme Court Rules 2013 which reads as follows:

“Subject to the other provisions of these rules every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice.”

CJI Gogoi also made it clear that the exercise of administrative power to this effect has in no way nullified or overruled the decision dated September 27, 2018  of the three-judge bench comprising the then CJI Dipak Misra, Justice Ashok Bhushan and Abdul Nazeer, wherein by a majority decision the Supreme Court declined to make reference to larger bench on the correctness of the Supreme Court’s decision in the Ismail Faruqui case to the extent that it had held that offering namaz in a mosque is not an essential part of the Islam. It may be noted that Dr Dhavan had argued before three-judge bench in favour of the reference to larger bench.

Thereafter, CJI started dictating the order in the matter, which went as follows:

“Today is fixed for fixing a date of hearing and for drawing up of a time schedule for hearing of the cases before us.

Before the Court could be addressed on any of the aforesaid issues, Dr. Rajeev Dhavan, learned Senior Counsel appearing for the appellants in Civil Appeal No.10866-10867 of 2010 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.

Dr. Rajeev Dhavan has also pointed out the judgment and order of this Court dated 27th September, 2018 by which a reference of the correctness of the judgment of this Court in Dr. M. Ismail Faruqui and others vs. Union of India and others1 was refused to be made to a Constitution Bench. Dr. Dhavan has drawn the attention of the Court to certain speculations prevailing as to why the matter has now been fixed for hearing before a Five Judges Bench though the Three Judges Bench by aforesaid judgment and order dated 27th September, 2018 had expressly directed that the matter be listed before a Three Judges Bench.

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, having regard to the various relevant facts and circumstances, which cannot be exhaustively laid down, to constitute Benches of such strength that the Hon’ble the Chief Justice deems it 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 Secretary General of the Registry has informed the Chief Justice that in the four suits, out of which these appeals have arisen, in all, 120 issues have been framed for trial. A total of 88 witnesses were examined. The depositions of the witnesses run into 13,886 pages. A total of 257 documents were exhibited (according to Dr. Rajeev Dhavan the number of Exhibits is 533 including 3 Archaeological Reports). 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, Gurumukhi, Urdu and Hindi, etc. have been translated is not clear.

The orders of this Court, particularly, the order dated 10th August, 2015 indicate that though the learned counsels 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.

In these circumstances, the Registry of this Court is directed 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 thereof to the Court. The said report will be submitted to this Court by the Registry on 29th January, 2019 when the reconstituted Bench (without Uday Umesh Lalit, J), as may be, will assemble once again to take up the matter for further orders”.

In a nutshell, the gist of the hearing held today is that CJI Ranjan Gogoi has made it clear that the five-judge Constitution bench will hear the Ayodhya case on merits. After the recusal of Justice U U Lalit, the bench will be reconstituted to that effect, and will assemble again on the date fixed, i.e. January 29, 2019, for fixing the schedule of hearing, so that hearing can commence on the batch of appeals against the Allahabad High Court order dated September 30, 2010.


Read the Order of the Supreme Court.

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