The Supreme Court on Thursday decided to constitute afresh the five-judge Constitution bench to hear on January 29 the politically-sensitive Ram Janmabhoomi-Babri Masjid land title dispute in Ayodhya after a judge, Justice U U Lalit, recused himself from the hearing.
Justice Lalit, who was part of the five-judge Constitution bench headed by Chief Justice Ranjan Gogoi, "expressed his disinclination to participate in the hearing any further" and opted himself out of the contentious matter. The apex court said since Justice Lalit has opted out of the hearing in the matter, there was no option left but to adjourn the case "to fix a date of hearing and to draw up a time schedule for hearing of the case".
Senior advocate Rajeev Dhavan, appearing for a Muslim party, said Justice Lalit had appeared as a lawyer for former Uttar Pradesh chief minister Kalyan Singh in a connected matter "sometime in the year 1997".
He said Singh, as then chief minister of Uttar Pradesh, had "failed in his promise to maintain the status quo" over the disputed structure at Ayodhya which was demolished on December 6, 1992.
The bench, also comprising Justices S A Bobde, N V Ramana, and D Y Chandrachud, which heard the matter for 20 minutes, noted in its order that Dhavan has "no objection to 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, 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," the bench said.
Fourteen appeals have been filed in the apex court against the 2010 Allahabad High Court judgement, delivered in four civil suits, that the 2.77-acre land be partitioned equally among three parties -- the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.
Dhavan, who was appearing for lead petitioner M Siddiq (since dead) and now represented by his legal heirs, pointed to the September 27, 2018 judgement, by which the top court had refused to refer the 1994 verdict in Ismail Faruqui case to a five-judge constitution bench to examine the observation that a mosque was not integral to Islam.
He drew the court's attention 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 its September 27, 2018 order had expressly directed that the matter be listed before a three-judges bench.
Senior advocate Harish Salve, appearing for a Hindu party, submitted, "I understand that if a constitutional question has to be decided, then it should not be decided by a bench of less than five-judges".
Clearing the doubts, the bench said the decision to post the matter before a five-judge bench was taken by the CJI on 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 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 the Chief Justice deems it proper," Justice Gogoi said.
"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 September 27, 2018," the CJI added.
The bench, in its order, noted that Secretary General of the apex court registry has informed the CJI that in four suits, out of which these appeals have arisen, in all 120 issues have been framed for trial and a total of 88 witnesses were examined. It noted that depositions of witnesses run into 13,886 pages and a total of 257 documents were exhibited. While the order was being dictated, Dhavan pointed that number of exhibits were 533, including three archaeological reports. The bench noted that the high court's verdict runs into 4,304 printed pages, which according to the registry, are 8,533 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 bench said. It said the apex court, in its August 10, 2015 order, had indicated that though counsel for parties had attempted to submit some translated version of 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 order said. "The said report will be submitted to this court by the registry on January 29, 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," it said.