‘Judiciary responsible for keeping Ayodhya issue alive’

The Supreme Court on September 23 decided to ask the Lucknow bench of the Allahabad high court to defer pronouncing its verdict on the Ayodhya title suit. While some hailed the SC decision as a chance for the various litigants to resolve the matter out of court such that no one is unhappy, many others said the deferment only delays one of India’s most drawn out cases. Retired Bombay high court justice Hosbet Suresh, now a well-known human rights activist, is also among the critics. In an interview with DNA, he wonders under what legal provision the judgment was deferred. Excerpts from the
interview:

Does the SC have the power to defer a judgment as opposed to staying court proceedings?
Never in the history of the judiciary has a higher court restrained its lower court from giving its judgment. How can they say don’t give your judgment? This is the first time this has happened. The judges should have taken into account that this case has been pending for 60 years. I can’t understand the deferment.The matter should have been over long ago and it is time to finish it as early as possible. Moreover, any verdict is likely to be challenged in the Supreme Court, which means the case will be heard all over again over a period of time. That gives the litigants the necessary time to resolve the matter outside the court.

The reason for the deferment, apparently, was to give the litigants a chance to resolve the matter out of court.

There is a new section in the Civil Procedure Code for out-of-court settlement, but the appeal for an out-of-court settlement has to come from the litigants. And if the judge feels that there is a chance for such a settlement between the two parties, then the judge can hold back the judgment and let the parties resolve the matter between themselves. Here, that is just not the case. The two sides are keen for the verdict and instead, we have a higher court ordering a lower court to defer passing its verdict to give the litigants time to solve the matter out of court.

What happens if Justice Dharam Veer Sharma, who is part of the three-judge bench that is due to give its verdict, retires before the judgment is given? [DV Sharma is due to retire on October 1]. Can the government ask him to stay on?
That would be a tragedy. If a new judge is appointed in his place, the entire arguments will have to be heard all over again and the matter will drag on for months. There is a provision in the Constitution for the government to appoint a judge on an ad hoc basis for a specific period or specific purpose. A retiring judge can thus be appointed an ad hoc judge. But for that, the judge must agree to such an appointment. What if he does not and insists on retiring. Justice [H L] Gokhale was wrong when he said the government can take care of Sharma’ retirement problem. It is not up to the government but up to Sharma to decide whether he wants to stay on or not

The SC is hearing the matter on September 28. Will it decide in a day?
Oh yes, they are likely to hear the matter through the day and pass a judgment on whether or not the verdict must be delivered or deferred. I doubt if they will defer it. The case for deferment seems very weak. But then the SC should give a direction to the Lucknow bench of the Allahabad high court to give its verdict the very next day, on September 29.

Isn’t the Ayodhya case a classic instance of justice delayed being justice denied?
For years, I have always condemned the judiciary for keeping the Ayodhya issue alive. This matter could have been dismissed long ago and I have no idea why it was kept pending for so long. The judiciary has to take the responsibility for delaying the passing of its verdict for so many years. This case began in December 1949, it should have been heard and resolved. It isn’t a difficult case. If you have a house and someone comes and says his grandfather had a house here, how can you entertain such a petition? Another case on similar lines was resolved in 1885, a case that began in the lower court and went up to the Privy Council, which dismissed the claims made by the petitioner. Thus, the Ayodhya matter could have been legally resolved in days. For instance, the whole world saw what happened on December 6, 1992, but that case has simply not moved forward.

Should the judiciary even be involved in cases such as these that are clearly socio-political matters?
This was not even a political matter till 1984-85, when Rajiv Gandhi was fighting the elections. At that time, he was advised to removed the seals on the then disputed structure. It was only after he fiddled around that the likes of the BJP, RSS and VHP got involved, finding out that they could now play a role. They all got involved after 1985. Before that the Ayodhya dispute was between the local mahant and the local wakf, and it should have been handled at that level only. Later, once the case blew up, the Supreme Court could have always called for the papers and put an end to the whole litigation, but the SC also chose to keep quiet, allowing the case to go on. I doubt if the case will be resolved even now.