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Ayodhya hearing in Supreme Court mired in procedural wrangles [Read Order]

The much-awaited hearing of the appeals in the Babri Masjid-Ramjanmabhoomi title case in the Supreme Court began in the afternoon, with politics outside the Court, influencing the proceedings significantly. The three-Judge bench of the Chief Justice Dipak Misra, and Justices Ashok Bhushan and S. Abdul Nazeer, had a tough time, in keeping the proceedings free from the political factors.

It all began with the counsel for the Sunni Wakf Board, Kapil Sibal, complaining that the pleadings are not complete, and therefore, he was not ready to make submissions.

The counsel for the Uttar Pradesh Government, the Additional Solicitor General, Tushar Mehta told the Court that all the documents have been translated and given to the counsel.

Kapil Sibal kept repeating that there are 19000 documents, and that the time was not sufficient for him to go through them. He pleaded with the bench to give the counsel enough time, so as to prepare for the submissions.

Senior counsel for the lead petitioner, N. Siddiq, Rajeev Dhavan, made it clear to the bench that he would not be able to finish reading the documents before October next year, hinting that the CJI would not be able to complete the hearing before his tenure ends. He added that this bench can’t hear this case, because the Constitution bench comprising five Judges had in Ismail Farooqui case, decided in 1994, had held that Mosque was not an essential practice of Islam. Dhavan felt that since it was an erroneous decision, it should not bind the present bench which is smaller than the Ismail Farooqui bench, and therefore, a seven-Judge bench must be constituted, to determine the correctness of that ruling.

The status of mosque, Dhavan said, is an important aspect of the present proceedings. The Ismail Farooqui bench, by holding that mosque is not an essential aspect of religion, believed that Muslims can play anywhere, even in streets. This is insulting, and must be corrected, he felt.

Dhavan also referred to the demolition of Babri Masjid, and how it had influenced the secular and democratic fabric of the country after 1992. “We can’t run away from the problem; It is not an ordinary pleading”, he told the bench.

In Dhavan’s view, the question was whether the bench is available from Monday to Friday to hear the case. Otherwise, he said, it can’t finish hearing the appeals before the end of next year. He told the bench, that the architecture of the Babri Masjid complex has to be explained, and there are documents to be studied.

When Tushar Mehta said that the hearing should not take more than 20 days, the opposing counsel questioned the unseemly haste in concluding the proceedings.

Rajeev Dhavan said: “If this is the way the judgments of the Court are going to be written…”

The High Court took 90 working days, the bench was told, to hear the parties.

At this stage, Kapil Sibal referred to the repercussions of the hearing outside. The case will have wide ramifications, and will determine the future of the polity, he told the bench. Ideally, therefore, he said, the proceedings should be deferred till July 15, 2019, suggesting that the outcome of the case could be politically exploited, if it is decided before the next general elections.

“Justice must be seen to be done”, he told the bench.

Justice Ashok Bhushan told Sibal that he was going back what he had told the court during the last hearing on August 11. On August 11, Kapil Sibal, Rajeev Dhawan, Anoop Chaudhary and Sushil Kumar Jain, were quoted as submitting that they would require four months’ time to translate the documents.

The bench, however, held as follows in its August 11 order:

“Regard being had to the complexity of the matter, we are inclined to grant 12 weeks to all concerned to file the English translation of the exhibited documents. It is hereby made clear that no adjournment shall be granted for the aforesaid purpose and both the parties shall be guided by the time frame fixed by us”.

Sibal, in response, referred to statements being made outside the house by certain political personalities, that the hearing of the case would be completed before October next year. He asked the bench why the hearing of the appeals has begun now and not in 2011 itself. “Someone, who is not even a party, mentions the case, and gets an early date for hearing. This is unusual”, he said, alluding to Subramanian Swamy’s request to expedite the hearing. Swamy, however, had justified his intervention, saying he was a petitioner seeking better facilities for the pilgrims at Ayodhya, and therefore, the outcome of the civil case has a bearing in his case.

Senior counsel, Harish Salve, representing the Ram Janmabhoomi Trust, told the bench it ought to concern itself only with the question of whether the High Court was correct on facts, and in law. It ought not to be concerned about who said what outside the court, regarding the proceedings, he said. Therefore, the Court ought not to be worried about the repercussions of the case outside, he suggested.

When senior counsel Dushyant Dave, representing Farooq Ahmad, wanted the matter to be heard by a larger bench, he said he had heard Salve arguing for a larger bench in other important matters, but for strange reasons, he is now suggesting as if the three judge bench is good enough.

To this, Salve said merely because a case is very important, it need not be heard by a larger bench. He suggested that let this bench hear the matter, and if during the hearing, substantial legal and constitutional questions arise, then under Article 145(3), it could take a call.

Salve, while responding to the argument that Ayodhya is part of the election manifesto of a political party, and therefore, the Court should not hear it before the next general elections, said: “Taxation may be part of the election manifesto of some political parties; does it mean the Court can’t hear it before the next general elections?”

Salve suggested that let the proceedings begin with senior counsel, C. S. Vaidyanathan giving an overview.

Rajeev Dhawan, at this point said, it is not a title suit, but can be traced to the 10th century.

When Dave referred to Swamy’s role in expediting the hearing, Tushar Mehta said when the matter was heard on August 11, no such allegation was made.

Salve added: “By our standards of conduct as counsel, let us send right messages for the Bar”.

Sibal emphasised that it is not an ordinary litigation, and has serious implications for the polity. While it is for the bench to decide whether it should be heard by a larger bench than this, I will beseech today that it is not an ordinary case, and it is not the appropriate time to hear it.

Sensing the mood of the counsel who opposed the starting of the hearing today, the bench chose to be pragmatic, and suggested that the Advocates-On-Record representing all the parties should coordinate and submit a common report, on the status of the documents, so that the next hearing will not be a repeat of what the court witnessed today.

The bench then adjourned the matter to February 8.

Read the Order below:

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