Neither the Union of India not the State of Uttar Pradesh can now appear in the Babri Masjid matter. Nor can the solicitor general, Tushar Mehta, on their behalf. I not only told him this in open court but actually put this in a written submission to that effect in court indicating why he should not do so.
He appeared as additional solicitor general on 13 occasions from August 11, 2017 to September 27, 2018 and again for the 14th time as solicitor general on October 29, 2018. At the hearings in July 2018, he was told in open court that there was a conflict of interest in two ways; he could not appear for the Union of India which was not a party; and, he could not appear for the state of UP. He was doubly conflicted.
Why was this? First, the Union of India was appointed as the statutory receiver in M. Ismail Faruqui (1994), decided on October 24, 1994. We need not go into the merits of that decision which twisted the entire meaning of the Acquisition of Certain Area at Ayodhya Act, 1993; or into the unfortunate statement depriving Muslim mosques of constitutional protection which was qualified in M. Siddiqui in September 2018 in a 2:1 decision. The implications of that will invite attention when the matter is heard fully. However, in M. Ismail Faruqui (1994) the court specifically said:
…the disputed area is vested in the Central government as a statutory receiver with a duty to manage and administer it in the manner provided in the Act maintaining status quo… (to) exercise its power of vesting that property further in another authority or body or trust… (and) to take all necessary steps to implement the decision in the suits and other legal proceedings and to hand over the disputed area to the party found entitled to the same on final adjudication made in the suits.
It was a 3:2 decision but binding. Obviously as additional solicitor general or solicitor general, Mehta cannot appear to conflict with the neutrality of the Union as statutory receiver.
The state of UP had also decided to take a neutral stand as is clear from the high court’s voluminous Lucknow bench judgment.
- At pg.46/Vol.1 of the Impugned judgment “Defendants No 5 to 8 (State and its authorities) did not propose to contest the suit and they requested that they might be exempted from the cost”
- At page 152/Vol.1 of the impugned Judgment- “Application dated 21.4.1962/28.5.1962 of Defendants No.5 to 8 (State of Uttar Pradesh, Collector, Faizabad City Magostrate, Faizabad and Superintendent of Police, Faizabad) (Suit 4)
- On behalf of defendants No. 5 to 8, an application dated 21.4.1962/28.5.1962 has been filed stating that they are all State officials and State Government is not interested in the property in dispute and as such, they do not propose to contest the Suit. The State officials had taken a bona fide action in respect of the property in dispute and in due discharge of their official duty. Therefore, they be exempted from the cost of the suit.”
- At page 3612/Vol.3 of the Impugned Judgment the application preferred on behalf of Defendant Nos5 to 8 to Suit 4 of 1989 is produced, at paragraph 1 it is specifically stated that “That the Govt is not interested in the properties in dispute and as such the Petitioners don’t propose to contest the suit”. Further, in conclusion it has been prayed that the Petitioner Defendants (i.e. State and its authorities) be exempted from costs of the suit.”
The state was thus not contesting the suit and remaining neutral quite apart from exemption from costs. Today, the state is openly violating its neutrality in respect of the property.
What Mehta did in a written submission on behalf of the state of UP was to argue that the Muslims were not bonafide in their application for reference (thus taking sides) and that the Muslims were wrong. On this a suitable reply was given.
But even on being warned on the ethical issue of conflict of interest, Mehta insists on appearing. Why so? The simple explanation is that he believes he must take cudgels in any matter in which the Union is involved. But our national flag cannot be given a communal interpretation. It is neither saffron nor green nor white for communal reasons. The chakra on white reminds us of purity. Mehta is vitiating the neutrality of the state and Union and the exalted position of solicitor general which is lowered by such actions. For the sake of respect for the Union, if not his own, he must not conflict his stance to compromise two governments: the Union and the state of UP.
The chief minister of the state of UP, the RSS and others are clamouring for the temple to be built at all costs. The first appeal is to be heard under a confounding atmosphere. This is now a case of critical importance and has to be decided fairly. In the P.C. Sen judgment of the Supreme Court (1969), Chief Minister P.C. Sen was found guilty of contempt for commenting on a Milk Order challenge pending in the Calcutta high court.
To return to Tushar Mehta. He may have been hired by the state of UP. We would like to know what his instructions from the state of UP were and by whom. The next date is January 19, 2019. No one is scared of Mehta’s ill prepared arguments in this case. It is a question of propriety; and, no less justice
Rajeev Dhavan is a senior advocate in the Supreme Court of India. He is senior counsel for the Muslim appellants in the Ayodhya civil dispute case.