3 Big Questions From the Supreme Court’s Babri Masjid Hearing

We take you through the big takeaways from today’s Supreme Court hearing on the Babri-Ram Janmabhoomi appeals.

The SC will hear the Ram Janmabhoomi-Babri Masjid title dispute on 8 February next year.

(Photo Courtesy: Wikipedia)

The Supreme Court, on 5 December, adjourned the Babri Masjid case till 8 February 2018, to ensure that the parties have time to properly review all the documents and evidence relevant to it.

The three judge-bench consisting of Chief Justice of India Dipak Misra and Justices Ashok Bhushan and Abdul Nazeer had been expected to start the day-to-day hearings into the case, which combines several appeals against the Allahabad High Court’s controversial decision in 2010 to divide the land between (representatives of) Lord Ram, the Nirmohi Akhara and the Sunni Wakf Board.

However, because of objections raised by several parties, saying they hadn’t been given sufficient time to review all the relevant documents and had not been provided with all the documents in the first place, the Court decided to delay the hearings.

It was a day of high drama as well, with fiery arguments, some daring remarks to the CJI, concerns raised about the explosive implications of the case, not to mention a lawyer being thrown out for using their phone in court.

Here are the 3 big questions that arise from the day’s events.

1. Should This Case Take Place Only After 2019 General Elections?

One of the more interesting questions raised today was whether this case should be taken up at a later date rather than now. Senior advocate Kapil Sibal, representing the Sunni Wakf Board, didn’t demand that this be done (as some media reported) but instead suggested that this be the case given the potential for polarisation this case has.

He also noted that none of the major parties to the case had in fact asked for an urgent hearing back in August, when this case was first taken up in the Supreme Court. The only person asking for an urgent hearing had been a ‘third party’ – Subramaniam Swamy – and Sibal argued that Dr Swamy’s intent was likely to capitalise on the political implications with the next general election in mind.

On this basis, Sibal said that it would be best for the matter to be heard after the elections, at which point all parties would have had enough time to fully appreciate all the evidence, and the case could be smoothly conducted without further adjournments, and without potentially being at the behest of someone like Dr Swamy. 

There is no doubt that this case has dragged on for a long time, and that it would therefore seem like a real waste to drag this on further till July 2019. However, the issue has been a tremendously dangerous one for decades now, and resolving it has been a manifesto issue for parties including the BJP multiple times before. To actually have a decision before the elections could become an invitation to communal violence, and so the desire for caution isn’t unfounded.

The judges eventually decided to not take heed of this argument, but that doesn’t mean that it’s without merit, and hopefully the judges will at the very least take their time with hearing the case and take measures to minimise its repercussions, even if it lasts beyond October 2018 (when CJI Misra retires) or after the 2019 elections.

2. Should a Constitution Bench of More Judges Hear the Case?

Senior advocate Rajeev Dhavan also argued that this case should be referred to a Constitution Bench of 5 or 7 judges since the case was not just a simple land dispute (as it is being treated per se), but instead went to the heart of the country’s secular fabric.

He pointed out that as a 3-judge bench, the CJI and other judges in this case were currently bound by the Supreme Court’s 1994 Babri Masjid judgment, which included some very problematic findings, including that mosque worship was not an essential religious practice for Muslims. These findings were extremely problematic and could potentially be prejudicial to the arguments of the Muslim parties in the case – hence the need for a larger bench that could overrule the 1994 judgment if necessary.

Senior advocate Harish Salve, appearing for the Ram Janmabhoomi Trust, contested this argument, saying that any such issues could be referred to a larger bench as and when they arose – this would mean that most of the case could be heard by the 3-judge bench, which could then hear the matter soon without adjourning it. If the whole case were referred to a larger bench, it would result in it being taken up later.

The judges agreed with Salve rather than Dhavan in the end, which means they will not be referring the whole matter to a Constitution Bench, though they will see if any specific issues need to be taken up by a larger bench.

Again, the argument for a Constitution bench makes a lot of sense because even in terms of the land ownership dispute, the arguments require consideration of other, more complex factors. Religion is intrinsically tied up with this case, with the judge of the lower court at the outset of this case actually saying he made his initial decision on the basis of a divine sign.

Dhavan confirmed that he will not be letting this issue go easily, telling The Quint that he will raise it at the next hearing as well. One can only hope that this will be assessed with the seriousness it deserves, and, as was strongly argued by Dushyant Dave (though not appreciated by the judges), the right message on this issue is sent when the hearings take place.

3. What Can We Do to Improve Our Case Management System?

The majority of time in the Supreme Court in this case – both today and in the previous hearing in August – has been dominated by arguments over whether or not all documents and exhibits have been filed and translated, and made available to all the parties.

A huge chunk of time today was devoted to Kapil Sibal reading out a status update on the documents that indicated that he had not received most of the documents. It was on this basis that he strongly protested when senior advocate Vaidyanathan started with his summation of the case and its issues for the court.

This was strongly contested by ASG Tushar Mehta (representing the state of UP) and senior advocate S Parasaran, who claimed that all the main documents had in fact been submitted, and even if any were left, the proceedings could begin before these were reviewed by the other parties.

In the end, the Supreme Court order held that the lawyers for the parties will need to cooperate and file a memorandum on all the evidence together – with the Registry of the Court as moderator if necessary. As a result, they recognised that there was a great deal of chaos when it came to the status of the relevant evidence, and set the date for 8 February 2018 accordingly.

However, this also demonstrates the need for a better case management system in our courts, where the court (or its registry, at any rate) manages the collection and exchange of evidence itself, so as to prevent delays and lawyers fighting over what’s been going on. Alternatively, a clearer, more rigorous protocol should be in place which can guide the parties to the case, and impose penalties when relevant documents are not submitted on time.