The second day of hearings commenced before the 3 Judge bench comprising Chief Justice Dipak Misra, Justices Ashok Bhushan and Abdul Nazeer. In the last hearing on 11th August 2017, the bench had directed both parties to submit translations of documents that they had relied on, including oral evidence, and any difference in opinion between parties was to referred to a Board of Experts. Today, the request by Mr. Kapil Sibal for postponement of hearings till the general election of 2019 invited criticism from both the bench and opposing counsels. Such a request created tension and drama inside the courtroom.
Mr Kapil Sibal, appearing for the Sunni Waqf Board, claimed that the respondents had not yet put all the documents (over 19000 in number) on the record and urged the Court to postpone the hearings. Mr Tushar Mehta, the Additional Solicitor General, appearing for the State of Uttar Pradesh refuted this claim. Mr Sibal then countered by saying that if all documents had indeed been put on record then they had not been served to the opposing parties. Mr Harish Salve, appearing for the Ram Janmabhoomi Trust, asked Mr Sibal to list out specific documents that had not been filed, as vague allegations could not be countered, while proof of delivery of specific documents could be provided.
Mr Rajeev Dhavan, also appearing for the Wakf Board urged the court to relook the 5-judge bench decision in Dr Ismail Faruqui v UOI which held that a mosque was not an essential part of the Islamic religion. Mr Dhavan said that the judgment attacked the secular and democratic fabric of the country and raised the question of whether any mosque could be destroyed as it was considered to not be an essential structure in Islam. Chief Justice Dipak Misra, however, expressed doubt over the need to constitute a larger bench for this case (as would be required if Dr.Ismail Faruqui v UoI case was to be referenced). Mr Sibal interjected that this could be the most important case in the judicial history of India and must ideally be decided by an 11-judge bench, and at the very least by a 5-judge bench.
Mr Sibal then requested the court to postpone hearings until after July 15th, 2019 due to the political nature of the case. Justice Bhushan pointed out that it was Mr Sibal who had requested the matter to be listed in January, to which Mr Sibal replied that the request was to determine if the bench would hear the matter and not for regular hearings. ASG Tushar Mehta countered Mr Sibal and urged the bench to continue regular hearings and ideally finish the matter within three months. Mr Salve sided with Mr Mehta and stated that as the court had dealt with sensitive matters before and had never been asked to reschedule based on elections. Mr. Salve added that this request for postponement was disrespectful to the court. Mr Dhavan responded that this was not an ordinary title dispute and dated back to the 10thcentury and urged the court to be sensitive to the larger ramifications of the case. The Chief Justice stressed that this was a title suit, and should be treated as such.
Mr Salve stated that public opinion and larger ramifications were not concerns of the court, which should focus on regular hearings. He also pointed out that there were numerous factual controversies that were in question in this case, which needed to be dealt with before the question of the status of a mosque in Islam could even arise. If needed, the Court could refer the matter to a larger bench at that point.
Mr Sibal then stated that if the Court decided to begin regular hearing despite the potential political ramifications, the sheer volume of the documents, and the counsels’ unpreparedness, then it was obliged to give reasons for this urgency. The bench was unmoved by this submission and reiterated its intention to proceed with hearings, at which point, Mr Sibal expressed his intention to leave the proceedings. Mr Salve noted that senior counsels were effectively threatening to walk out if the matter was not heard on their terms. Mr Sibal responded that these were not threats but merely a requirement as they were unprepared to begin arguments right away. The bench expressed ‘shock’ and ‘surprise’ at the unusual statement but accepted that hearings could not begin that day.
The bench then reviewed the 'Status Report' on all documents filed and posted the matter for 8th February 2018. It directed the advocates-on-record to ensure that all documents, pleadings and exhibits (along with translations) and a common memorandum stating that all documents were on the record, to be filed before the next hearing.