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.

A religious divide

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.

Yet there were fundamental differences between Khan’s judgment and those of the other two judges. Keeping aside their precise formulation, both Agarwal and Sharma held that the Babri Masjid had been built after demolishing a temple. Sharma did not even recognise the Babri Masjid as a mosque. Agarwal declared the area under the Babri Masjid’s central dome to have been the place of Lord Ram “as per faith and belief of the Hindus”.

By contrast, Khan said the Babri Masjid was not built after destroying a temple. Rather, a temple had been lying in ruins for a long time before the mosque’s construction was undertaken. He said before the mosque was built, the Hindus believed that Lord Ram was born somewhere in a very large area of which the disputed site constitutes a very small part. It was only later that the disputed site, or a place within it, was identified as Lord Ram’s birthplace.

‘Judicial equivalent of Ayodhya movement’

In his critical appraisal of the 2010 judgment in the Economic and Political Weekly, lawyer Anupam Gupta, who was counsel for the Liberhan Commission, which investigated the demolition of the Babri Masjid, wrote that Khan’s judgment was “in truth, a dissenting opinion”.

Gupta explained: “Judged by the opinion of the two judges [Agarwal and Sharma] who constituted the real, as distinguished from the ostensible, majority of the three-member full bench, the 30 September 2010 verdict of the Lucknow bench of the Allahabad High Court in the Babri Masjid title suits qualifies, in every sense, to be described as the judicial equivalent of the Ayodhya/Ram Janmabhoomi movement.”

Like the progenitors of the Ayodhya movement, Agarwal and Sharma invoked faith, not evidence, to insist that the disputed site was Lord Ram’s birthplace, and that a temple was destroyed to build the Babri Masjid. Gupta quoted a phrase of French writer Romain Rolland to describe their judgments as the “annexationist propaganda of faith”.

There has always been a debate whether religious affiliations of judges influence their verdicts. It was certainly true of KM Pandey, who as the district judge of Faizabad had the locks on the Babri Masjid’s gate removed in 1986. In his autobiography Voice of Conscience, Pandey admitted to have been impelled by an “inner voice” to deliver his verdict.

On the day he delivered the judgment, Pandey saw a divine sign. In the Economic and Political Weekly piece, Gupta quoted from Pandey’s confession:

“On the date of the order when orders for opening locks was passed a Black Monkey was sitting for the whole day on the roof of the Court Room in which hearing was going on, holding the flag-post… [Later on] The said Monkey was present in the verandah of my bungalow… I just saluted him treating him to be some Divine Power.”

Pandey, who was later elevated to the High Court, may have been an exception. Yet the repeated Hindu-Muslim split in judgments on Ayodhya matters creates the impression that communal differences extend from politics to judiciary. One way Gogoi can obviate this situation is to refrain from replicating the Hindu-Muslim demographics on the bench that he will reconstitute.

Constitution of Ayodhya bench

Given that the judges are expected to rise above their religious beliefs, there is no reason why a three-member bench cannot have two Muslim judges and one Hindu judge. On this score Gogoi’s hands are stayed – Nazeer is the only Muslim among the Supreme Court judges, reflecting the institution’s poor social diversity.

Gogoi could also create a non-Muslim, non-Hindu bench. He could choose a Parsi, but the only judge from that community is Justice Rohinton F Nariman, who has recused himself from Ayodhya matters. There is no Sikh judge in the Supreme Court.

There are judges who are Christian. But Kurian Joseph will have retired before the Ayodhya bench meets in January. There are Justices KM Joseph and R Banumathi, who though born Hindu, her office told this writer, has faith in Christianity and goes to church. She has not converted. Even if Banumathi is counted as Christian, Gogoi still cannot constitute a bench of three judges who are neither Hindu nor Muslim.

A three-member bench consisting only of religious minorities can be created only by including Nazeer on it. Or Gogoi can have a bench comprising one Hindu, one Muslim, and one from other religious minorities. Yet these two schemes, as also the theoretical one to create a non-Hindu, Non-Muslim bench, will invite the wrath of Hindutva groups, who have been stridently contemptuous and defiant of the apex court’s Sabarimala judgment.

Instead of allowing the judicial process on Ayodhya to be vitiated, it is in India’s interest for Gogoi to constitute a three-member bench comprising only Hindu judges known for their legal acumen. Such a scenario will eliminate the possibility of Hindu-Muslim differences getting mirrored in the judiciary. Muslims should not have a problem with the bench comprising only Hindu judges because a minority judgment delivered by a Muslim judge, as the past of Ayodhya matters shows, has no practical significance.