On Monday, the bench of Chief Justice of India Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice K.M. Joseph disclosed that the appeals against the 2010 Allahabad high court judgment in the Babri Masjid title dispute will be listed before the “appropriate bench” in January next year and that bench will decide the schedule of hearing of the case.
The announcement has led to intense speculation about whether the case would be heard and decided before the next Lok Sabha elections, scheduled in May 2019, with some blaming the Supreme Court for the inordinate delay in hearing the matter.
Although the previous bench comprising the then CJI, Dipak Misra, Justice Ashok Bhushan and Justice S. Abdul Nazeer began to hear the case, it could not complete its work before CJI Misra’s term ended on October 2. This was because the court first had to resolve the preliminary issue of whether it should refer to a larger bench the question of prayer at a mosque being integral to Islam. A five-judge constitution bench had in 1994 declared that it is not an essential practice of Islam, a ruling which had influenced the high court verdict significantly. The Dipak Misra bench had held in a 2:1 judgment that the issue need not be referred to a larger bench for re-examination and that the 1994 bench had held what it did in a different context, that is, acquisition of lands, whereas the present appeals are not concerned with it. Justice Nazeer dissented from the majority, and supported reference to a larger bench.
The Supreme Court has held in many cases that a judgment is relevant for the facts of that case, and if the factual matrix changes in a subsequent case, the principles laid down in a previous judgment are not exactly applicable in that case. The majority judges, therefore, did not find merit in Justice Nazeer’s conclusion that the matter required to be reconsidered by a larger bench. If the majority judges’ view holds, then the consequence would be that a three-judge bench has to determine which sections of the 2010 Allahabad high court judgment were impacted by the 1994 judgment holding that prayer at a mosque is not an essential practice of Islam, and declare those portions of the judgment as null and void. This holds interesting possibilities.
On the other hand, a review petition seeking reconsideration of the 2:1 judgment of the Supreme Court on the issue – to be filed by Muslim groups – may persuade the new three-judge bench to be constituted to agree that there were errors apparent on the face of the record of that judgment. In that event, the reference issue may be reopened, and heard all over again in open court. If the review succeeds, the larger bench to be constituted will hear the matter afresh, and give its verdict on the question of prayer at a mosque being integral to Islam. The appeals in the title dispute will again be heard by a three-judge bench. These are all inevitable imponderables likely to arise in the case which cannot be pre-empted by scheduling an early hearing of the merits of the land dispute.
Perhaps keeping all these factors in view, the CJI-led bench on Monday found merit in not prioritising the title dispute by jumping the gun to schedule a hearing. By saying that an “appropriate bench” will hear the matter in January and schedule further hearings in the case, the CJI-led bench was not ruling itself out of the reckoning that it might hear the case. The term “appropriate bench” used by the CJI as the master of the roster, refers to any bench hearing a particular matter as per the roster, and which can include his own bench.
Although most review petitions are heard and dismissed by judges in circulation as a matter of routine, some do get to pass the threshold stage, and get listed for hearing in open court. When a review petition is heard in open court, lawyers entertain hopes that they could convince the bench about the errors apparent on the face of the record of the main judgment being reviewed. The outcome of the review petition against the September judgment – yet to be filed – will throw some light on the course of hearing of the appeals in the title dispute by the “appropriate bench” in January 2019.
The Supreme Court is not and cannot be anxious about fast-tracking a case merely because it has been pending for so many years without resolution, or that its outcome is likely to influence the results of a general election. The court’s calendar depends on the nature of cases coming before it, and the merits and the urgency of the prayers of the petitioner, as understood by the judges hearing them. After concluding a hearing, the judges are entitled to spend some more time in writing their judgments. While prioritising a case over others, the question which the judges generally ask themselves is whether the case involves the liberties of a citizen, or an impending development (such as an execution or demolition) which cannot later be reversed.
In other words, “will heavens fall?” if the case is heard and decided in its natural course, is the appropriate question to ask in the Ayodhya title dispute. The answer, if the history of the dispute is any indication – a senior counsel once observed during the hearing of the case that “the heavens have already fallen” in this case, alluding to the demolition of the Babri Masjid on December 6, 1992 – is that there is nothing more to be lost if the court’s calendar means any delay to some parties.