The court was convened today to work out a date and schedule for the hearing, but before it could do that senior lawyer Rajeev Dhawan, who is representing one of the parties, said he had two things to point out in the case.
He said that in an earlier related case that was heard in 1997, Justice UU Lalit had appeared for Kalyan Singh in the matter. He said that though he did not have any objection, but it was for Justice Lalit to take a call.
Justice Lalit asked if the case was that of contempt, and admitted that he had appeared for one of the contemnors.
When Dhawan apologised for bringing the matter to the court’s notice, the Chief Justice said he doesn’t need to be sorry as he is simply asserting a fact.
Harish Salve, who was appearing for a Hindu Party, said he fully supported Dr Dhawan and says the contempt arose for the breach of orders passed in a writ petition as the then Chief Minister had failed to maintain status quo at the site. “These are civil suits. I don’t think it should be a problem,” he said.
The Chief Justice said it is not a question of anyone having a problem. “The point is it was mentioned to us. So Justice Lalit is of the view that it won’t be correct for him to participate,” the CJI said.
The other issue that Dhawan pointed out was that the order was to place it before a three-judge bench. He said the Constitution bench was denied by the earlier bench. He said the CJI would have to pass a judicial order and not an administrative one to bring in a constitution bench to hear the case.
The Supreme Court rules permits a Chief Justice of India to nominate a bench keeping in mind the importance of the case at hand and therefore to set up a constitution bench for hearing this dispute is in no way contrary to the earlier three judge bench order that had declines to send the title suit to a larger Bench.
This was clarified by the bench after Dr Dhawan pointed out to the speculations over a new bench being nominated to hear the matter. Dhawan asserted an order on the judicial side is required to clear the speculations
The case is pending before the apex court since 2010 when 14 cross-appeals were filed against the Allahabad high court’s 2010 judgement dividing the 2.77 acre land equally among the three parties - the Sunni Waqf Board, the Nirmohi Akhara, a Hindu religious denomination, and Ram Lalla, or infant Ram, represented by the Hindu Mahasabha - for the construction of a Ram temple.
The Supreme Court was originally supposed to hear the case in October, but deferred this to January, rejecting the Uttar Pradesh government’s plea for speedy hearings with CJI Gogoi saying the court had its “own priorities”
The postponement had led to demands from several right-wing groups affiliated to the ruling Bharatiya Janata Party for a law or executive order to facilitate the building of a Ram temple at the disputed site in Ayodhya. Prime Minister Narendra Modi said in a recent interview that his government would wait for the courts to rule on the case.
Taking up the case on January 4, a bench comprising CJI Ranjan Gogoi and justice SK Kaul, in a 10 second hearing that gave lawyers on both sides no opportunity to address the court, that a new three-judge bench which will be formed by the CJI before January 10 to hear the case and pass any further orders on the land dispute in Ayodhya.
However, on Tuesday, CJI Gogoi announced the setting up of a five member bench, which also comprises justices SA Bobde, NV Ramana, UU Lalit and DY Chandrachud - all potentially the next four chief justices of India.
The setting up of a five-judge bench is significant because last year, the Supreme Court rejected the demand of Muslim parties to refer the Ayodhya title dispute to larger bench. That demand came in the context of its own observations in an earlier judgement by five judges in the 1994 Ismail Faruqui case where it was held that a mosque is not an essential part of the practice of the religion of Islam and namaz by Muslims can be offered anywhere, even in the open.
Muslim petitioners in the Ram Janmabhoomi case said that the Ayodhya title dispute could not be decided until that judgement was revisited.
A three-judge bench of the Supreme Court in September ruled that the earlier observation was in the context of acquisition of land.
It further stated that “those observations were neither relevant for deciding for suits nor for these appeals”.
All parties in the case have welcomed the setting up of the new and larger bench.
Advocate Ejaz Maqbool , appearing for one of the Muslim parties in the case, said, “CJI has an exclusive jurisdiction to refer any matter to a larger bench. This is what we had argued earlier but the former CJI committed a grave error and rejected our demand. Moreover when issues of national ramification like Sabraimala and other cases can be heard by a five- judge bench why should the Babri case not be heard by a similar composition?”
Advocate Vishnu Jain of Hindu Mahasabha, one of the parties to the case, said: “Even though the demand for referring the case to a larger bench was rejected earlier by the Supreme Court, the CJI has the exclusive power to set up benches in important matters. We will argue the matter before the five-judge bench and we are not into bench hunting”.
Constitutional expert and senior advocate Chander Uday Singh welcomed the CJI’s move to set up a larger bench in light of the importance of the case. He said: “Notwithstanding the earlier judicial pronouncements, the CJI’s power to set up benches is absolutely sacrosanct. This is the legal position. The CJI has done the right thing.”
Hoping for an early resolution to the contentious matter , Vishwa Hindu Parishad (VHP)?spokesperson Vinod Bansal said : “ (We) Hope the newly constituted five-judge constitutional bench of the Supreme Court headed by the CJI will be able to deliver its verdict on Ram Mandir soon, after day-to -day hearing of the case.”