Supreme Power of Supreme Court

The Supreme Court had a sense of urgency, and perhaps a little activism

By Virag Gupta

PRIME MINISTER Modi in Mann ki Baat welcomed the verdict of the Supreme Court in the Ayodhya case. He expressed his content and said that the verdict will bring happiness among the citizens after years of adjudication. The country may be spearheading its efforts towards ease of doing business, it is clear that all such steps are for big and the mighty. However, the mightiest of all, Lord Ram himself, had to wait like a common person for years for getting a verdict.  

The Ayodhya case finds its legal origins from a dispute that took place in 1822. Following this, Hindus and Muslims clashed over their right to worship at the disputed site. Hindus claimed that it was the birthplace of Lord Ram while Muslims claimed that it was a Mosque built on the instructions of Mughal Emperor Babar. In 2019, the Supreme Court, which had the matter pending before it for ten years, conducted speedy hearings in 41 days and the five-judge bench delivered a unanimous verdict. Surely, the Supreme Court had a sense of urgency, and perhaps a little activism. The manner in which Counsels were directed to make time-bound arguments, the court sitting for longer hours and judges delivering a judgment within two weeks after concluding the arguments was unheard of.


The Ayodhya dispute is possibly India’s oldest litigation, which is proved by the following:

After the reign of the Mughal Regime, Ayodhya became a part of the princely state of Awadh. The British government then took direct control of Awadh from the East India Company as per the Government of India Act passed by the British Parliament in 1858. The British Government subsequently passed several laws including the Indian Penal Code in 1860, the Indian Evidence Act in 1872, the Civil Procedure Code in 1908 and the Mussalman Waqf Act in 1923.  As a consequence of this, centuries-old clashes from the medieval period concretized into litigation in the British era, the first suit being instituted in 1885.

Though the Ayodhya dispute had been simmering for years, it reached the Supreme Court in a concretized form of a land dispute in 2010. The case before the Supreme Court was an appeal from the judgment of the Allahabad High Court delivered in September 2010. The proceedings before the Allahabad High Court were agonizing slow and might have cost the exchequer around Rs. 144 crores, as per a study done by think tank Centre for Accountability and Systemic Change (CASC). The Allahabad High Court in its final verdict had directed that the land be divided into three parts, two of which were for Hindus and one for Muslims. All parties agreed that this was not a solution. The Supreme Court immediately stayed the judgment of the Allahabad High Court but after that, the case progressed very slowly. There may be around 25 crore individuals in India who may be directly affected by 3.25 crore pending cases. This wait before the court is also a testament to the immense time it is taken to deliver justice in India. 


It took three years to transfer the record from the Allahabad High Court to the Supreme Court. This was despite the fact that the entire record before the Allahabad High Court was in a digital format. The subject-matter of the Ayodhya dispute relates to the ancient and medieval period while modern courts evolved during the British era. Many of the case records are in Sanskrit, Persian, Urdu, and Hindi. As per rules, Hindi documents are allowed to be used in Allahabad High Court proceedings. However, as per the Supreme Court Rules, only English documents or English translations are allowed to be used. This objection was raised after many proceedings, and the Supreme Court felt the need for certain documents to be translated. The respective parties took a long time of nearly two years to get the documents translated into English. However, the issue of translation was not resolved until the final hearings began. 


The State and Central Government acquired the disputed land and adjoining areas after the incident of December 1992. This acquisition was challenged before the Supreme Court, which held it to be legal. This case on the validity of acquisition was heard by a Constitution Bench of Five Judges which delivered its judgment in 1994. After the 1994 judgment by the Constitution Bench, it was said that the Ayodhya matter is a simple title suit and was accordingly allocated to a three-judge bench. There were serious questions as to how a three-judge bench could finally put an end to this humongous dispute. In the matter of title suit, aspect of temple or mosque on the disputed site was to be determined, which necessitated a Constitution Bench. Chief Justice Ranjan Gogoi indeed formed a Bench of five judges, as was suggested in my book “Ayodhya’s Ram Temple in Courts” published by CASC. However, in the absence of a reference, it could not be said to be a Constitution Bench. This aspect was also clarified in the judgment of the Supreme Court wherein it was said that the Bench of 5 Judges which finally decided the matter was a usual one formed under the powers given to the Chief Justice. 


The most beautiful part of the Supreme Court judgment is that it is a unanimous judgment. It is very rare that in the case as big as this, all the judges are on the same page and echo the same thoughts. Even the High Court judgment delivered in 2010 by the bench of three judges was not unanimous and differed considerably on several points. The fact that it is a unanimous judgment by the Supreme Court makes it more difficult to further challenge it in the review or curative petition. However, the judgment of the Supreme Court is quite unusual. The judgment does not mention who the author of the main judgment is. It does not mention the name of the judge who wrote the addenda to the judgment. Perhaps this is the only case in which this has happened. One does not know how to decipher this. What is the judgment authored by all of the five judges? Even if that is the case, the name of the judge who authored the addenda must have been written. 


Law makes it clear that every human being has a legal personality. That means, every human being can sue and be sued. Similarly, artificial persons like companies, corporations, etc. have been given the status of legal personality. In Hinduism, Idols are recognised as legal persons, who can be represented through their friend. The Ayodhya case too was initiated by a friend of Lord Ram. However, the Hindus also advanced another argument that the Ram Janm Bhoomi, that is, the land itself had legal personality. The Supreme Court did not agree with this claim and the judgment discusses this in detail. With respect to the legal personality of the idol, the Court said, “At the heart of the present dispute are questions pertaining to the rightful manager of the deity and the access of the devotees of Lord Ram to the idols. To ensure the legal protection of the underlying purpose and practically adjudicate upon the dispute, the legal personality of the first plaintiff is recognised”.

It is true that the Supreme Court has said “For the purposes of recognising a legal person, the relevant inquiry is the purpose to be achieved by such recognition. To the extent such purpose is achieved, the form or corpus of the object upon which legal personality is conferred is not a matter of substance but merely a question of form.” But there are still some questions lurking around.


Now that the verdict has been delivered by the Supreme Court, the next logical step in order to find any infirmity with the same is a review petition. A review petition can be filed only on very limited grounds and is governed by Article 137 of the Indian Constitution and order 47 of the Supreme Court Rules, 2013. A review petition has to be filed within 30 days and those who were not parties before the Supreme Court can also file the same. Ordinarily, the bench hearing the review petition should be the same as the bench which delivered the verdict in the original matter. However, the Bench for the Review Petition in Ayodhya matter will be altered in view of the retirement of Chief Justice Gogoi. 

For review, one has to show error apparent on the face of the record, after which the Supreme Court may interfere. There may well be certain points which need a relook. Few Hindu factions have remarked that when the disputed site was only 0.313 acres, why give 5 acres for a Mosque? Also, why shouldn’t only a monetary compensation be paid and no alternate land be given? Why did the Court comment on incidents of 1949 and demolition of 1992, when the same were not before it?  Should not the court have added that its observations were not going to affect the ongoing criminal trial? On one hand, the Court has commented upon issues that were not before it, and on the other hand, it has taken no steps, despite several applications in the Aslam Bhure matter, which is pending since 2002.

All India Muslim Personal Law Board (AIMPLB) in its press conference has also stated, “We feel that the restitution by granting 5 acres· land where fundamental values have been damaged to the extent of causing national shame, will not in any manner heal the wounds caused…Mosques are essential for the religious practice of Muslims. Building the same Mosque at some other site in situations like this is also not permissible as per Islamic Law.” On the other hand, Shia Waqf Board has stated that if Sunni Waqf Board does not want the 5 acres land, the Shia Waqf Board is ready to accept the land and build a hospital over it.


The Constitution of India impliedly agrees with and institutes the principle of separation of powers. There is a question that when the state has ownership of the disputed land, why should it not be the authority which acts upon the same? India is a secular republic and the State does not have a religion as such. However, it does regulate the matters of religion. The Judiciary is also propounding the view that matters of religion should not be judged through the prism of rationality. The aspect of the Supreme Court deciding the Ayodhya dispute as a title suit, but on the basis of evidence of faith is also being criticized.  


After the demolition of the Babri Mosque, the disputed site along with adjoining land was acquired by the Central Government through a law passed by Parliament in 1993. Subsequently, Narsimha Rao Government gave the affidavit to allocate the land for temple purposes if the same was proved by excavation. Archaeological Survey of India did the excavation of disputed site as per instructions of Allahabad High Court and that evidence became one of the grounds for allocation of land for temple purposes. As per Section 6 and 7 of the Acquisition of Certain Area at Ayodhya Act, 1993, previous Governments could have allocated the land for temple purposes to end the longstanding litigation. Ruling party BJP had consistently mentioned Ram Temple at Ayodhya in its manifestos but did not use the power given as per a law passed by Parliament. In Kesavananda Bharati’s matter before the Supreme Court, the Court had said that the government had the rights to acquire the land and basic structure would not be violated. Accordingly, the Central Government could have ended the dispute a long time back by using its authority. Challenge to Government’s decision before the Judiciary would rather have been limited to the payment of compensation and not become a title suit which went into matters of faith.

The interesting fact is that the Supreme Court judgment directs Centre, or State Government to allocate five acres of land for a mosque, yet they were never heard before the Court. The 5 acres of land is to be allotted to the Sunni Wakf Board, while it is the other Muslim groups who are opposing such grant. As per the Supreme Court verdict, the Centre may allot the 5-acre land from within the 67.7 acres that were acquired by the Centre as per the Acquisition of Certain Area at Ayodhya Act, 1993. Else, the State Government may give the 5-acre plot at any prominent place in Ayodhya. Interestingly, the same political party is in power at both Centre and State, and there may not be a problem in allocating the land. What if the power equation was different? Surely, a mess would have been on the cards. 


Parliament in 1991 enacted the Places of Worship (Special Provisions) Act, 1991 to protect religious structures. Made by the Narsimha Rao Government, the law prohibited the changing nature of any religious structure. It said that the nature of a structure will remain as it was on 15th August 1947. Importantly, Ram-Janm Bhoomi/Babri Mosque was excluded by this law. Now that the Supreme Court has decided in favour of Ram Temple at Ayodhya, there is a fresh vigour in support of reclaiming Kashi and Mathura. However, the Supreme Court in the Ayodhya verdict sounded caution about the same. Certain activist lawyers have stated that they will challenge the validity of Places of Worship (Special Provisions) Act, 1991. Any such challenge will be ominous and have the scope of changing the status quo of all structures, especially those which are considered to be made after removing an earlier religious structure. 


It is the Parliament which made the Places of Worship (Special Provisions) Act, 1991 and any change to the same must be through Parliament. It will be a challenge for the Supreme Court to test the validity of the law as it has the scope of opening a Pandora’s box. In the Ayodhya case, the Court showed its determination of finishing up a case pending for years, within weeks. Can the same resolve not be shown for all cases? Sadly, the Court in the Ayodhya matter did not implement its own judgment for live streaming. Had it been done, it would have been a positive first and a great step towards access to justice. Overall, the Ayodhya judgment shows that the Apex Court becomes an activist when it wants to be. At times, it shirks from the obvious while at times, it proceeds with tenacious speed. One hopes that the Ayodhya judgment will bring an end to India’s longest dispute and the country will march on together to ensure that years are not spent in order to get justice. 

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