Why Has a 5-Judge Bench Been Constituted to Hear the Ayodhya Case?

The SC has treated the case as a land issue & rejected reference to a Constitution Bench last year. What changed?

On 10 January, the long-running Ayodhya land dispute case will begin a new chapter, when it is listed before a five-judge Constitution Bench of the Supreme Court. The bench will be headed by CJI Ranjan Gogoi, and will also include Justices SA Bobde, NV Ramana, UU Lalit and DY Chandrachud.

It is not yet clear whether we will now see day-to-day hearings in the case (though this is unlikely at this point), or whether the judges will hear any substantive arguments in the case at this point, but the fact that it is being heard by five judges is in itself an interesting development.

According to Article 145(3) of the Constitution of India, a bench of five or more judges is required whenever the Court is hearing a case that involves “a substantial question of law as to the interpretation of this Constitution”. This is why such a bench is called a ‘Constitution Bench’.

However, the Ayodhya case is supposed to be just a title dispute, to decide who owns the land, on which the Babri Masjid used to stand till it was demolished by kar sevaks in 1992. The case before the court is an appeal against the decision of the Allahabad High Court in 2010, which had divided the land between the Sunni Wakf Board, the Nirmohi Akhara, and ‘Ram Lalla’ (ie, the god Ram).

Land Issue or Something More?

Till now, the apex court has treated it as just a “land issue”, with former Chief Justices JS Khehar and Dipak Misra setting up three-judge benches to hear the matter. In fact, in September 2018, CJI Misra’s bench (by a majority of 2:1) had rejected a request by some of the Muslim parties in the case to refer the case to a Constitution Bench.

There is a logic to considering the case as purely a land dispute, since it means the matter doesn’t need to delve into questions of religion and faith, and restrict itself to who had title over the property.

The factual matrix for the case would seem to justify such an approach. The Nirmohi Akhara had forcibly occupied part of the land since the 1850s but attempts to construct a temple there had been thwarted by the local administration and court orders.

In 1950, the first of the present-day suits was filed, asking for Hindus to be allowed to worship at the site (after the infamous placing of idols in the mosque in 1949). This was followed by a suit by the Nirmohi Akhara in 1959 and then in 1961 by the Sunni Wakf Board in 1961, both claiming ownership of the land.

Of course, once the Allahabad High Court decided to provide part of the land to ‘Ram Lalla’ in 2010, it is arguable whether the case could be viewed as purely a land dispute, and the case does involve other issues which could elevate it beyond this.

Sep 2018: Rejection of Request for Reference to Constitution Bench

During his tenure, CJI Dipak Misra tried to conduct hearings in the case, but these were first delayed because translations of some relevant documents had not been provided to all parties, and after that, an argument was raised that the matter needed to be heard by a larger bench.

Senior advocate Rajeev Dhavan, representing one of the Muslim parties, argued that though the case was supposed to be a title dispute, the Allahabad High Court’s judgment had been influenced by a 1994 decision of the Supreme Court in the Ismail Faruqui case.

• In that judgment, a Constitution Bench had upheld the validity of the Centre’s Acquisition of Certain Area at Ayodhya Act 1993 (except for one provision). This 1993 Act was meant to allow the Centre to acquire 67.703 acres of land in Ayodhya, including the entire disputed area.
• The Act had been challenged on the grounds, inter alia, that the Central Government cannot acquire land belonging to a mosque, since such land is protected in Muslim law and doing so violated the right to freedom of religion in Articles 25 and 26 of the Constitution.
• The judges held that there was no bar to acquiring land on which any religious structure existed, including temples and mosques. What became contentious, however, was an observation by them that “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.”

Dhavan argued that this observation had been referred to by the Allahabad High Court in its 2010 decision, which also referenced other observations in the Ismail Faruqui judgment about the site being of “particular significance” to the Hindu community. These observations were not correct in law, he argued, as the required tests for whether or not something was an ‘essential religious practice’ had not been conducted.

Because these influences could become relevant in the current case before the Supreme Court, Dhavan said it was important that a larger bench hear the matter, since a three-judge bench would be bound by what the Ismail Faruqui judgment said. He therefore asked for a reference to a Constitution Bench.

The majority judgment in September 2018, however, held that the contentious observations in the Ismail Faruqui judgment were only in connection with the issue of land acquisition, and didn’t matter for the land dispute before the apex court. The question of certain areas having particular significance for Hindus “has lost all its significance for decision of the suits and appeals”, wrote Justice Ashok Bhushan (on behalf of himself and then-CJI Misra).

Jan 2019: Constitutional Issues to be Considered Now?

The September 2018 decision should have been the end of the debate, and there was little indication that things would change on 4 January 2019, when CJI Gogoi passed an order saying “Further orders in the matter will be passed on 10.1.2019 by the appropriate Bench, as may be constituted.”

This was merely expected to be a decision on which three judges would hear the case, and when they would begin regular hearings. But then, out of the blue, the Supreme Court issued a notice on 8 January 2019, saying the case would be listed before the Constitution Bench of five judges.

As we all know after the ‘Master of the Roster’ controversy during CJI Misra’s tenure, it is the Chief Justice and the Chief Justice alone who decide which judges a case will be assigned to. This means the decision to have five judges hear the case was made by CJI Ranjan Gogoi himself.

But why? Does he believe there is a constitutional law angle to the case that was not considered previously? Or does he agree with Dhavan’s argument, and wants to ensure the bench is not bound by Ismail Faruqui?

It is difficult to see how it could be the latter, because even a CJI can’t just ignore the decisions already laid down by the court. A reference to a larger bench based only on the argument around Ismail Faruqui is not feasible at this point of time, and the minority judgment of Justice Abdul Nazeer, would not change this position.

Which means the decision relates to other factors. Perhaps CJI Gogoi believes the case will require an assessment of whether or not praying at a mosque is an essential religious practice (the Sep 2018 judgment says the Ismail Faruqui case doesn’t include any observations on this in general). Perhaps they need to assess whether or not ‘Ram Lalla’ can be accepted as a party to the case and granted rights over property, while represented by a ‘next friend’ rather than a trust.

This should become clearer on 10 January and in subsequent hearings. Another issue which will need to be clarified is how the matter has been assigned to a five-judge bench from a procedural point of view. Normally, a reference is needed by a lower bench, which doesn’t appear to have happened here – though it could be said that CJI Gogoi has already made the reference, as one of the judges previously hearing the case.