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1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 10866-10867 OF 2010 IN THE MATTER OF: M. Siddiq (D) Thr. Lrs.

…Appellant VERSUS

Mahant Suresh Das & Ors. etc. etc.

…Respondents

AND OTHER CONNECTED CIVIL APPEALS NOTE FOR REFERENCE OF THE PRESENT BATCH OF MATTERS TO A LARGER BENCH 1.

It is submitted that the present matter concerns issues which have a grave public bearing. In fact, the importance and seriousness of the matter has been set out by one of the Hon’ble Judges (S.U. Khan, J) in the impugned judgment itself, in the following words:-

“Here is a small piece of land (1500 square yards) where angels fear to tread. It is full of innumerable land mines. We are required to clear it. Some very sane elements advised us not to attempt that. We do not propose to rush in like fools lest we are blown. However, we have to take risk. It is said that the greatest risk in life is not daring to take risk when occasion for the same arises. Once angels were made to bow before Man. Sometimes he has to justify the said honour. This is one of those occasions. We

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2 have succeeded or failed? No one can be a judge in his own cause. Accordingly, herein follows the judgment for which the entire country is waiting with bated breath. 2.

The importance of the present dispute has also been recorded by Hon’ble Mr. Justice Sudhir Agarwal in the following terms: -

“At the disputed site there was an old structure—centre of controversy among two major communities of this country, i.e., Hindus and Muslims”. 3.

As mentioned above, one of the civil suits in the present dispute was filed as early as in the year 1950 and the last suit was filed in the year 1989. Considering the seriousness and importance attached to resolution of the dispute of two largest religious communities in the country and their feelings and sentiments attached thereto in case, the Hon’ble High Court considered it appropriate that the disputes are adjudicated directly by it, and allowed the Application filed under S. 24 CPC (filed alongwith Suit No. 5) in terms of Order dated 10.07.1989. It is further material to point out that under normal circumstances, like few other High Courts in the country, the Hon’ble Allahabad High Court does not have Original Jurisdiction to adjudicate upon Civil Suits. It is further material to submit that the High Court decided to entrust upon/assign these cases to a Full Bench of three Hon’ble Judges. All these steps were extra ordinary in nature for hearing of an original civil suit and were taken by the Hon’ble High

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3 Court of Allahabad considering the seriousness and importance attached to this matter, even though the Hon’ble High Court of Allahabad has no original jurisdiction. 4.

That on earlier occasions, the issues relating to the present dispute have travelled to this Hon’ble Court, including the one by reference of issues by the President of India under Article 143 of the Constitution of India. The said reference of the President, along with other petitions, were heard and decided by five Hon’ble Judges of this Hon’ble Court on 24.10.1994 reported in (1994) 6 SCC 360 [ Dr. M.

Ismail Farooqi Vs. Union of India]. [A separate compilation has been given to the Hon’ble Judges] 5.

There were many issues which had been argued by parties in the proceedings in Dr. M. Ismail Farooqi v. Union of India [(1994) 6 SCC 360]. One such issue, argued by Muslim parties, on which this Hon’ble Court has taken a view, in the background of land acquisition proceedings, and the said proposition of law has been set out by this Hon’ble Court in paragraph 80 to 82 of the said judgment. The reference to the said paragraphs the same has also been made in the orders passed on 5.12.2017 in the present appeals. On 05.12.2017, the said issue was recorded at the request of one of the Senior Counsel in the present matter. However, after recording the submissions of learned Senior Counsel representing the contesting party that if the context so requires, the matter of referring the present case to larger bench may be considered at later stage, this Hon’ble Court had kept the said issue open.

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4 6.

That, in the year 2002, Writ Petition (C) No. 160 of 2002 was filed praying for certain relief. On the very first date of hearing, three Hon’ble Judges of this Hon’ble Court considered the matter and passed appropriate interim orders including the order directing the said matter to be listed before “a larger Bench”. Mohd. Aslam alias

Bhure Vs. Union of India & Ors. reported in (2003) 2 SCC 576 (Please see TAB 11). It is material to point out that the Hon’ble three Judges considered it appropriate to place the matter before larger Bench of this Hon’ble Court and finally a Bench of Hon’ble five Judges decided the said Writ Petition in terms of the judgment in Mohd. Aslam alias

Bhure v. Union of India reported in (2003) 4 SCC 1 (Please see TAB 12). 7.

It is further submitted that one Contempt Petition (Criminal) No. 2 of 1994 was also taken up by a Bench of five Hon’ble Judges of this Hon’ble Court for final disposal. Rajeev Dhavan v. Gulshan Kumar

Mahajan reported in (2014) 12 SCC 618 (Please see TAB 18). 8.

It is further submitted that under Article 145 of the Constitution of India, the substantial questions of law can be referred to a Bench of five or more Hon’ble Judges when “the Court is satisfied that the

appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal”. 9.

Apart from the above, under Rule 2, Order VI of the Supreme Court Rules, 2013, a smaller Bench of this Hon’ble Court, when it considers

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5 that the matter should be dealt with by a larger Bench, it may refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for hearing of it. 10.

Additionally, the Supreme Court Handbook on Practice and Procedure and Office Procedure in Chapter IV (Constitution and Jurisdiction of Benches) reads as under:

“3 (iii) The Chief Justice may, from time to time, constitute a Bench consisting of five or more Judges for the purpose of hearing any other cause, appeal or matter” “IV. Reference to Larger Bench (i)

A Division Bench of two or more Judges may refer any cause, appeal or other proceeding, pending before it, to a larger Bench of not less than five Judges involving a substantial question of law as to the interpretation of the Constitution, as per proviso to Article 145(3) of the Constitution.

(ii)

Where, in the course of hearing of any cause, appeal or other proceeding, the Division Bench considers that the case should be dealt with by a larger Bench, it shall refer the case to the Chief Justice, who shall thereupon constitute such a Bench for hearing it.

(iii)

If a Bench of less than three Judges, hearing a cause, appeal or matter, is of the opinion that the accused

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6 should be sentenced to death, it shall refer the case to the Chief Justice, who shall 26 thereupon constitute a Bench of not less than three Judges for hearing it. (iv)

After the Reference is answered by a larger Bench, wherever required, the case shall be placed before the Chief Justice for listing before an appropriate Bench for hearing and decision in accordance with the opinion of the larger Bench.”

11.

Hence, it is submitted that there are two sources of statutory law (powers) through which the Benches hearing the matter can refer the matter to larger Benches including reference to the Bench of five Judges or more, not only if substantial question of law as to the interpretation of the Constitution but also for other reasons. In the past, this Hon’ble Court has considered and referred the matter to larger Bench for, inter alia, the following reasons: (i)

“considerable importance”; Krishan Kumar Vs. Union of

India & Ors. reported in (1989) 2 SCC 504 (Please see TAB 4); (ii)

“keeping in view the importance of the issues”; Securities

and Exchanges Board of India Vs. Sahara India Real Estate Corporation Limited & Ors. reported in (2014) 8 SCC 751 (Please see TAB 17); (iii)

On being shown observation by another Constitutional Bench that same Principle cannot be applied mutatis

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7 mutandis; S.S. Rathore Vs. State of M.P. reported in (1988) Supp. SCC 522 (Please see TAB 3); (iv)

Reference has to be for reconsideration of principle of law and not merit; Gopakumar B. Nair Vs. Central Bureau of

Investigation & Anr. reported in (2014) 5 SCC 800 (Please see TAB 16); (v)

“importance of the question and the conflict of opinion”;

Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors. reported in (2006) 5 SCC 662 (Please see TAB 13); (vi)

Testing the validity of the notification as to whether it was ultra vires of RBI Act (along with other Constitutional questions) was considered a matter of “general public importance” and this Hon’ble Court deemed it to have “far reaching implications”; Vivek Narayan Sharma Vs. Union of

India reported in (2017) 1 SCC 388 (Please see TAB 19); (vii)

“importance of the question involved”; Chanranjeet Singh

Vs. Raveendra Kaur reported in (2008) 17 SCC 650 (Please see TAB 14); (viii) Appeals concerning “interpretation of” Article 535 of the

Portuguese Civil Code and the applicability of the provisions of the Indian Limitation Act”; Syndicate Bank Vs. Prabhad D. Naik & Anr. reported in (2002) 10 SCC 686 (Please see TAB 10);

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8 (ix)

“substantial question of law of great importance which is

likely to govern number of cases”; Vinod Kumar Shantilal Gosalia Vs. Gangadhar & Ors. reported in (1980) Supp SCC 340 (Please see TAB 1); (x)

“questions involved are too large and complex”, hence the Hon’ble Single Judge referred the matter to a Bench of at least Seven Judges; Ram Jethmalani Vs. Union of India reported in (1984) 3 SCC 696 (Please see TAB 2);

(xi)

“important questions of law of public importance which will

have far-reaching consequences”; Telecom Regulatory Authority of India Vs. Bharat Sanchar Nigam Limited reported in (2014) 3 SCC 304 (Please see TAB 15). 12.

It is submitted that there are various other circumstances under which this Hon’ble Court appears to have referred the matter to larger Benches and those circumstances include doubting the correctness of precedent of Bench of equal strength; Hyderabad Industries Ltd. &

Anr. Vs. Union of India & Ors. reported in (1995) 5 SCC 338 (Please see TAB 7), possibility of distinction of benefit to two different class;

Union of India Vs. M. Gopalakrishnaiah reported in (1995) Supp (4) SCC 81 (Please see TAB 8), difference of opinion of two Hon’ble Judges of the same Bench; Ashwani Kumar & Ors. Vs. State of Bihar

& Ors. reported in (1996) 7 SCC 577 (Please see TAB 9). 13.

As far as the issues involved in present appeals are concerned, since the independence of India, the top leadership of the Country has

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9 remained involved and spent some time on the issue. At one stage, while the suits were pending and status quo order was in place, the Masjid was demolished on 06.12.1992, despite the Writ Petitions and Contempt Proceedings for being heard by this Hon’ble Court. Achhan

Rizvi (I) Vs. State of U.P. & Ors. reported in (1994) 6 SCC 751 (Please see TAB 5) and Achhan Rizvi (II) Vs. State of U.P. & Ors. reported in (1994) 6 SCC 752 (Please see TAB 6). 14.

As stated above, subsequent to the demolition, the reference of the President of India was heard in Dr. M. Ismail Farooqi v. Union of India, (1994) 6 SCC 360, at page 381 and the following observations have been recorded by five Judges of this Hon’ble Court in relation to demolition;

“In spite of initial reports from Ayodhya on 6-12-1992 indicating an air of normalcy, around midday a crowd addressed by leaders of BJP, VHP, etc., climbed the Ram Janma BhumiBabri Masjid (RJM-BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of “national shame”. What was demolished was not merely an ancient structure; but the faith of the minorities in the sense of justice and fairplay of majority. It shook their faith in the rule of law and constitutional processes. A five-hundred-year-old structure which was defenceless and whose safety was a sacred trust in the hands of the State Government was demolished”

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10 15.

That prior to the said judgment, the Central Government had issued a white paper in which the following overview was set out which is self-explanatory;

“1.35 The demolition of the Ram Janma Bhoomi-Babri Masjid structure at Ayodhya on 6-12-1992 was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and the rule of law enshrined in our Constitution. In a move as sudden as it was shameful, a few thousand people managed to outrage the sentiments of millions of Indians of all communities who have reacted to this incident with anguish and dismay. 1.36 What happened on 6-12-1992 was not a failure of the system as a whole, nor of the wisdom inherent in India’s Constitution, nor yet of the power of tolerance, brotherhood and compassion that has so vividly informed the life of independent India. It was, the Supreme Court observed on that day, ‘a great pity that a constitutionally elected Government could not discharge its duties in a matter

of

this

sensitiveness

and

magnitude’.

Commitments to the Court and Constitution, pledges to Parliament and the people, were simply cast aside. Therein lay the failure, therein the betrayal.

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11 1.37 Today India seeks to heal, and not reopen its wounds; to look forward with hope, and not backwards with fear; to reconcile reason with faith. Above all, India is determined to press ahead with the National Agenda, undeterred by aberrations.” 16.

In reply to the aforesaid white paper of the Central Government, BJP published its own white paper in April 1993, entitled as “BJP’s White

Paper on Ayodhya & Ram Temple Movement” (Please see TAB 20), which showed no intentions of reaching a compromise. The foreword to the said paper, which was authored by senior BJP leader Mr. L.K. Advani, provided as follows: -

“the record of unremitting struggle of the Hindus to regain the site; the pathetic history of their worshipping the spot from a distance when they were denied access to it, of their circumambulating it- all these bear testimony to their deep and abiding, and indeed stirring devotion to Sri Rama. On the other hand, the structure which Mir Baqi put up on the orders of Babur never had any special significance from a religious point of view. It was purely and simply a symbol not of devotion and of religion but of conquest. Correspondingly, quite apart from it being an obstacle, preventing Hindus from worshipping the birthplace of their idol, Sri Rama, it was for the country the symbol of its subjugation” …

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12 “Reconstructing the temple of Sri Rama became the symbol of this rising consciousness-ridding the country of the perversities to which it was being subjected in the name of Secularism, forging a strong and united country. The object of the movement thus became not just to construct yet another temple, the object became to put our country back on its feet, to purify our public life, our public discourse. This is how in 1989 the Bharatiya Janta Party formally decided to lend its shoulder to the cause- the Party was responding to the deepest urges of our people.” … “The rest is history. Our governments refused to pay heed to the

intense

longing

of

the

people

with

regard

to

Ramjanamabhoomi. And I regret to say that the Courts heeded our people no more. The governments remained lost in calculations; our leaders continued to be obstructive, and to put their trust in being clever; our courts allowed themselves to remain entangled in legalisms. The anger which had been welling up across the Country, and which would have found a smooth and peaceful outlet if Kar Sea had been allowed on 2.77 acres of land adjoining the disputed structure, exploded on December 6. Disregarding the exhortations of the movement leaders, who had planned to shift the structure only after appropriate legislation, the Karsevaks pulled down the

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13 structure. For millions in the country, the construction of the temple had begun. But the Karsevaks did more. They did not just erase a symbol of our subjugation. They did not just begin building a symbol of resurgence. They showed us as if in a flash how far we have to travel. For the country reacted in two diametrically opposite ways, as virtually two different peoples. For a handful- those in government, in political parties, and in large sections of the English Press, for instance, what had happened was “a national shame”, it was “madness”, it was “barbaric”. For the rest of country, it was a liberation- a sweeping away of cobwebs. The depth of devotion to Sri Rama, the depth of anger at the recent politics, had surprised me, as I said; the depth of the chasm between these two nations- the microscopic minority at the top and the people-did not.” … “The Ayodhya movement, in particular the erasure of Mir Baqi’s insignia of conquest and the commencement of the Temple of Sri Rama, has already occasioned deep reflection and rethinking in our country- on what a truly secular polity should be, on how a country can even survive if the deepest sentiments of 85 per cent of its people are spurned, on how we should find better ways to attend to such issues so that the people are not driven to force solutions on all. In no section is this rethinking deeper and more evident than the Muslims.

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14 I am certain that this White Paper will further this process of national reflection. It is thus more than a document of record. It is the interim report of a movement for national resurgence.” 17.

It is submitted that on an earlier occasion, as stated hereinabove, a petition was filed before this Hon’ble Court in relation to cases involving Sikh Leaders detained after Punjab Action, Hon’ble Single Judge of this Hon’ble Court, before referring the matter to Larger Bench (Seven Judge Bench), recorded as under:

“These cases are just two in number. There may be many other cases of this nature which have not yet reached this Court but may be filed shortly. These are not ordinary criminal cases involving a few individuals coming from a small locality. These are extraordinary cases involving serious questions of great public importance touching the security of the nation as well as personal liberty of a sizeable section of the community, many of whom may have been made to believe by a dominant section of society, may be wrongly, that what they were doing was right and for that reason may not have been free agents. Hence these cases have to be dealt with differently from the usual cases which come up before this Court. 2. First a word of caution. In the course of these proceedings every word uttered on either side of the Bar should be weighed before it is used. There is no room for heat and passion; logic and reason alone should rule the debates. There should be an alround sympathy in dealing with the complex issues which may

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15 arise for determination. In handling these cases the highest judicial talent and statesmanship are needed and hence these cases cannot just be rejected reserving liberty to the applicants to approach a Judicial Magistrate, a Sessions Judge or even the High Court. Every step taken in these cases should serve as a healing touch bringing solace to all concerned and lessening by some degree the pain and suffering through which the country and its peace-loving people have passed and are passing. These proceedings should have the effect of assuaging the outraged feelings of many who till now may not be aware of what has actually happened. Any amount of time spent by the highest Court of this land on these cases would not go in vain. There is no duty more sacred than this. 3. I, however, feel that the questions involved are too large and complex for the shoulders of a Single Judge to bear. It is my humble view that these and other cases of like nature should be heard by at least seven learned Judges of this Court whose unquestioned judicial authority, erudition and acumen would be of great assistance in the restoration of peace in one of our great States known for the valour, the devotion, the spirit of sacrifice and the sense of duty towards the country of the people residing in it.” Ram Jethmalani v. Union of India reported in (1984) 3 SCC 696 (Please see TAB 2)

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16 18.

It is further submitted that in OOS No. 5, which has been decided in terms of the impugned judgment, an issue i.e. issue number 22 was framed as under:

“Whether the premises in question or any part thereof is by tradition, belief and faith the birth place of Lord Rama as alleged in paragraphs 19 and 20 of the plaint? If so, its effect?” 19.

It is submitted that the said issue has been decided in terms of the impugned judgment and faith and belief of one community has been considered to point out one place to be the exact place of birth of Lord Ram.

20.

In that view of the matter, the parties in the present appeal, including the appellant herein, have raised substantial questions of law concerning rule of law, approach of judiciary while dealing with complex religious issues and in regard to interpretation of Article 25 and Article 26 of the Constitution of India in as much as, can such freedoms override basic legal rights and propositions of common law such as Title, Adverse Possession, et al. The grounds in relation to the said issue has been raised in various appeals (which shall be refereed

to, if required, at the time of hearing of this application) including by the appellant in his appeal. The relevant ground reads inter alia as under:

“6.1. Because the issues relating to the belief/ faith of Hindus have been dealt with in the background of the constitutional scheme of right to religion as contained in Part-III of

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17 Constitution of India without appreciating that the said fundamental rights are available to all the persons equally…” 21.

Without prejudice to the foregoing, it is submitted that recently this Hon’ble Court constituted a bench of 7 Judges which heard the matter concerning Justice Karnan, and found him guilty of committing contempt and observed that the said issue had grave consequences. In such circumstances, it is submitted that the present matter which has a huge bearing on the secular fabric of the nation ought to be heard by a larger bench of this Hon’ble Court. [Judgment dated

09.05.2017 passed in Suo-Motu Contempt Petition (Civil) No. 1 of 2017, In Re: Hon’ble Shri Justice C.S. Karnan, (7 JJ.) (Please see TAB 21)]. 22.

In any event, it is in the interest of justice that a larger bench hears the present matter since inception as partial hearing by a 3 Judges bench and further hearing by a larger bench would only add to the time taken to hear the present matter. Pertinently, the record of the present matter runs into several thousand pages and it was not possible to physically handle the record even at the level of the Hon’ble High Court and therefore a direction was given to create a digital version of the records and even in this Hon’ble Court, a digital version was handed over to the Advocates on Record. It is submitted that a three judges’ bench would require a long hearing and after hearing the matter for a long period, if the bench of three Hon’ble Judges decide to refer the matter to a larger bench then it will be an exercise in futility.

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18 23.

In a recent order dated March 26, 2018 in the case entitled as Sameena Begum Vs. Union of India & Ors. bearing Writ Petition (Civil) No. 222 of 2018 this Hon’ble Court has referred the matter and other connected matters to a Constitution Bench keeping in view the importance of the issue involved in the said Writ Petition and other connected Writ Petitions. (Please see TAB 22).

24.

It is submitted that the present batch of matters not only require interpretation of the Constitution of India, but also relate to a nationally/considerably important subject matter. As such, the Appellants pray that the matters be referred to a larger Bench, to be constituted by the Hon'ble Chief Justice of India.