Chief Justice of India Ranjan Gogoi will have to reconstitute a new Supreme Court bench that will fix a date in January to commence hearing the final arguments in the Ram Janmabhoomi-Babri Masjid title dispute. This is because Justice Dipak Misra, who was part of the three-member bench that was earlier hearing the case, retired on October 2. Its two other members were Justices Ashok Bhushan and S Abdul Nazeer.
As the master of the roster, the chief justice can substitute Mishra and retain Bhushan and Nazeer, or he can replace them to recast the bench afresh. However, according to convention, apart from the justice who has retired, members of a bench already seized of a matter are not changed. It is also the norm to include a judge belonging to a minority community on a bench hearing a case that is of special importance to that community. Adherence to conventions conveys a sense of fair play.
Yet, as far as the Ayodhya dispute goes, adherence to judicial conventions does not convey a sense of fairness. This is largely because significant judgments in Ayodhya matters, whether of the Supreme Court or High Court, have split along religious lines. Hindu judges tend to deliver the majority opinion, with those from religious minorities often dissenting. For the public, it would seem as if the religious persuasion of judges influences their verdicts.
It is indeed a bit odd that religious minorities should have a minority representation on a three-member bench, mimicking, to a degree, India’s demographics. After all, judges are supposed to rise above their personal predilections to objectively examine the legal questions involved in any case. Consequently, it should not matter whether judges are Hindu or Muslim.
Yet religious minorities constituted the minority of judges on the benches that adjudicated important milestones in the Ayodhya dispute – the 1994 Ismail Faruqui case, the Ayodhya title suit in the Allahabad High Court in 2010, and the most recent M Siddiq vs Mahant Suresh Das and Others case. In all these cases, Hindu judges differed substantially from judges belonging to religious minorities.
Take the Ismail Faruqui case, which challenged the constitutional validity of the Union government’s acquisition of 67.7 acres of land in Ayodhya, including the disputed 2.77 acres on a part of which the Babri Masjid had stood before it was demolished on December 6, 1992. The three justices who upheld the acquisition in 1994 were M Venkatachaliah, JS Verma and GN Ray, all Hindu. The two justices who declared the acquisition unconstitutional were AM Ahmadi, a Muslim, and SP Bharucha, a Parsi. In Ismail Faruqui, the majority judgment also made the observation that the mosque did not constitute an essential element of Islam. Whether this observation needed to be revisited by a five-member bench was examined in M Siddiq vs Mahant Suresh Das and Others. The plea was that it influenced the 2010 Allahabad High Court judgment that divided the disputed 2.77 acres equally between the Hindu organisation Nirmohi Akhara, Sunni Waqf Board and the party representing the deity Ram Lalla or the infant Ram.
In the judgment delivered on September 27, Justices Mishra and Bhushan declined to refer Ismail Faruqui to a five-member bench. They said the observation regarding the mosque had been in the context of land acquisition and was therefore not relevant for deciding the appeal in the Ayodhya dispute. Nazeer differed from them, quoting extracts from the Allahabad High Court judgment to conclude that it had been “expressly and inherently affected by the questionable observations made in Ismail Faruqui”.
Once again, the two Hindu judges constituted the majority opinion with the Muslim judge dissenting.
On the face of it, the 2010 Allahabad High Court verdict made it seem as if there was a meeting ground between Justices S Agarwal and SU Khan, who ordered that the disputed site in Ayodhya be divided three ways. The third judge on the bench, DV Sharma, assigned the entire 2.77 acres to the party representing Ram Lalla.