CJI [Dipak] Misra, who was presiding over the Bench then hearing the case, declined to adjourn the hearing to 2019. In his own way, he made attempts to go ahead with the case. But sometime in April-May 2018, the impeachment episode cropped up. Many believed that the impeachment move was calculated to prevent CJI Misra from hearing the Ayodhya case.
Whether there is any substance in this is not within my knowledge. However, I find some commonality between such thoughts and the views expressed in certain quarters that the events narrated in an earlier chapter could have been similarly calculated with not only the Ayodhya hearing that was due shortly, but also the ongoing hearings in sensitive cases like Rafale and NRC in mind. The only difference was that while the first move (involving CJI Misra) succeeded, the second (involving myself) did not.
The three-judge Bench decided the question of reference to a larger Bench on 27 September 2018 by refusing a reference. Instead, it directed the Registry to list the cases for hearing on 27 October 2018. Two things must be noted. The first is that 27 September ie the date of the decision by the three-judge Bench was one of the last days of Justice Misra’s tenure as the CJI and the date fixed for hearing ie 27 October was after the commencement of my tenure as the CJI.
Second, the process of hearing of the Ayodhya case really commenced during the tenure of my predecessor, Justice Misra. This should settle all speculation as to whether I had resurrected the cases to hear them out of turn, as alleged by many. What I did was to let the case take the usual procedural course.
The date fixed by Justice Misra’s Bench for hearing i.e. 27 October 2018 was a Saturday. The matter, therefore, came up on 29 October 2018 (Monday) before a Bench of Justice Sanjay Kishan Kaul, Justice KM Joseph and myself. An order was passed that the matter would be listed for hearing before the appropriate Bench in the first week of January 2019. There was no specific date chosen.
I, therefore, expected that before the cases were listed, my permission would be sought. This was not done and, suddenly, without my knowledge, the case got listed on 4 January 2019. At the time, I had not even constituted the Bench that would hear it. Also, my assessment of the state of readiness of the case for hearing was yet to be completed.
Neither the Secretary General nor any of the registrars could explain how the case got listed without my knowledge and permission. Be that as it may, on 4 January, the Bench consisting of Justice Kaul and myself, in the above situation, had no alternative but to pass the following order:
Further orders in the matter will be passed on 10.1.2019 by the appropriate Bench, as may be constituted.
Thereafter, as the CJI, I took the decision that the appeals should be heard by a five-judge Bench headed by me and with Justices SA Bobde, NV Ramana, UU Lalit and DY Chandrachud. All the other four members of the Bench were future Chief Justices of the country. On 10 January 2019, the matter came up before the five-judge Bench.
Rajeev Dhavan pointed out that sometime in the year 1997, Justice Lalit had appeared in a connected matter and therefore the learned judge may decide whether he would like to continue on the Bench. Justice Lalit, naturally, expressed his disinclination to continue. We, therefore, had no option but to adjourn the case to another date as I had to reconstitute the Bench.
Dhavan also raised a question as to why the appeals had been fixed for hearing before a five-judge Bench when a reference to a larger Bench had been refused by the Court on 27 September 2018. This was answered by the Court with its order dated 10 January 2019 holding that, following the provisions of the Supreme Court Rules, the Chief Justice (myself) had decided that the cases (appeals) would be heard by a Bench of five judges and the constitution of the larger Bench had nothing to do with the earlier order of the Court on 27 September 2018...
In the meantime, Justice Ramana (number three judge on the Bench) met me and requested that he should be excluded from the Bench when it was reconstituted. I asked why and he indicated his difficulties.
As my original plan that the appeals should be heard by a five-judge Bench consisting of the current Chief Justice and the four future Chief Justices had, anyway, to be abandoned with the recusal of Justice Lalit (there were no more future Chief Justices available at that point of time), I reconstituted the Bench by excluding Justice Ramana and including Justice Ashok Bhushan and Justice S Abdul Nazeer who had been members of the three-judge Bench that had passed the order of 27 September 2018...
On 7 May (two months after the order dated 8 March constituting the mediation committee), the Court received a report from the Chairman of the Mediation Committee indicating the progress made and seeking further time until 15 August. This was granted by the Court on 10 May.
Coincidentally, the Supreme Court was scheduled to go on its long vacation from 13 May and reopen on 1 July. After the summer recess, the Bench assembled on 11 July to consider an application filed in the meantime by one of the contesting parties stating that the mediation process had failed and the matter should be heard on merits.
A report was sought from the mediation committee while permitting it to continue with the proceedings. A report was duly submitted, intimating the failure of the mediation attempt. On 2 August, the Court assembled to consider the report, after which orders were passed that the cases/ appeals would be heard on and from 6 August, on a day-to-day basis...
I must confess that the conduct of business in court, never for a moment, reflected the ongoing stress, anxiety and trauma within me. The years of training and self-discipline as a judge were pressed into service. But, at every moment, I was conscious that the oral hearings, the discussions amongst the judges, the preparation and delivery of the judgment – all had to be completed within a time frame in view of my impending retirement on 17 November 2019.
I often carried the surcharged emotions home. My wife was the only person with whom I could share the turmoil within me and lay bare the highly disturbed man behind the cool and calm exterior exhibited in the courtroom.
One particular day, I refused to go to court. Rupanjali eventually won with her enormous persuasive powers. On another day, though she succeeded in pushing me out of the house (5, Krishna Menon Marg), once I reached the Court, I refused to budge from the chamber. Justice Bobde called off the hearing that day, telling the other judges that I was unwell.
While the hearing was progressing, negative statements by activists and lawyers on one or another unrelated issue kept getting published, perhaps to disturb the peace which was required to decide a case of such magnitude.
I do not remember getting more than three to four hours of daily sleep during the entire period of the Ayodhya hearing.
Negative comments on the feasibility of completion of hearing; statements by activists about the misplaced priority of the Supreme Court in taking up the case and wasting judicial time and, to top it all, the Damocles’ sword-like deadlines for completion of the different stages of the case kept reminding me what was at stake – the consequences to me and the institution, and its reputation if the case was to remain inconclusive before my retirement.
Even some of my colleagues were highly sceptical. Why has this madman put the reputation of the Supreme Court at stake, was the topic of several private conversations amongst the judges. But the way things progressed and ended convinced me that there was a divine force which made the conclusion of the case, regardless of the way the judgment went, possible.
A somewhat unusual feature of the three-month hearing was that no judge on the Bench availed of casual leave even for a day. No judge on the Bench suffered even from a common cold or fever that kept him away from the hearing.
Equally inexplicable was another occurrence. One of the judges told me that he might have to take leave for a few days as a close relative was seriously ill and in the ICU of a hospital. I told him that he might not require to do so as his relative would recover. This was in order to console and comfort him. The judge did not take any leave, and I too did not ask about his relative as presumably he had recovered.
While I must acknowledge and appreciate the role of all my brother judges on the Bench, Justice Bobde’s part in bringing the Ayodhya case to a logical conclusion, in spite of the multiple hurdles, is significant. Without his contribution, the Bench could not have succeeded in completing the case within the available time frame.
Every day, after the hearing, all five judges would meet in the Chief Justice’s chamber for a cup of tea. We used to talk about many other things and only generally about the case and the arguments made in the course of the day. Never did we discuss which way the verdict should eventually go.
It was only in the last few days of the hearing that there appeared to be unanimity of opinion building up that the disputed land should go in favour of the Hindu parties for constructing the Ram temple and the Muslim parties should be allowed a five-acre alternative plot in a suitable and prominent place in Ayodhya for building a mosque. It was agreed that relief would be moulded accordingly.
About a week before the hearing concluded, I suggested that the opinion of the Court should not only be unanimous, which it was going to be as the trend of discussions and mutual exchanges indicated, there should also be only one judgment and the name of the author of the judgment should not be disclosed.
The judgment to be pronounced would be finalised once all the individual judgments were received and necessary editing and merger carried out to turn the draft judgments into the final one. I do not know about the others, but I started writing my judgment and wrote about 300 pages. I received two separate judgments with the same conclusion authored by two of the judges. All the draft judgments received were handed over to a third judge on the Bench for editing and merger.
In Supreme Court practice, the judge who has authored a judgment sends it to the other judge(s) on the Bench for consideration and approval. The other judge(s), if he agrees with the draft judgment, sends it back usually with the remark “I respectfully agree”. This practice was followed in the Ayodhya case also.
The draft judgment was circulated by me to all the brother judges not as the author, but as the presiding judge of the Bench. The written approval of all the four judges was received by me. The acknowledgments/ approvals make very interesting reading and perhaps settle all doubts and questions raised by “investigative journalists” and pessimists, activists and detractors about the authorship of the judgment.
The practice followed is in consonance with the legal concept of per curiam, meaning the order of the court. I believe it was recently followed in the judgment in the One Rupee Contempt case.
Some logistical issues, however, remained to be resolved. These were discussed during the last meeting on 8 November in my official chamber at 5, Krishna Menon Marg. After the discussions, the judges emerged after about an hour, smiling and holding hands, having resolved the logistics. I immediately called the registrar in charge of listing, who, as instructed, was waiting. He was told to list the case for pronouncement of judgment the next day at 10.30 a.m. This was around 8.30 p.m.
I had very little sleep that night. Though I had a prepared text of the operative part of the judgment, I kept thinking about what I should read from that so as to shorten the court proceedings to the minimum.
The following morning – 9 November – on entering the courtroom, we found it overflowing with advocates, some litigants and, of course, mediapersons. Every inch of available space was taken up, all entry and exit points had been opened and curtains lifted out of the way. There was a spillover of the assembly in the corridor in front of the CJI’s court.
After we had taken our seats, I was the first to sign the judgment. Then the other judges signed it in order of seniority. Within a few seconds, the ink dried and the Ayodhya judgment had become etched in judicial history for posterity to read. I told the packed courtroom that the judgment was unanimous and per curiam (authorship undisclosed). A spontaneous roar arose.
Thereafter, I commenced reading the operative parts which, in spite of my best efforts, took about 45 minutes. The judgment was pronounced on a Saturday as the next three days were holidays. I felt that this was one judgment that should not be kept pending for even a minute once it was ready for pronouncement.
In fact, prior to the pronouncement, I had met the chief secretary and the Director-General of Police of Uttar Pradesh. This was dictated by prudence in view of the judgment’s importance and the impact it was bound to have, whichever way it went.
Excerpted with permission from Justice for the Judge: An Autobiography, Ranjan Gogoi, Rupa Publications.