Jamiat’s Ayodhya review petition should succeed but won’t. Here’s why

According to the Supreme Court, it had on 9 November settled India’s oldest and most controversial religious disputes. So what will it do now?

A group photo of the five judges who delivered the verdict in the Ayodhya land case, at the Supreme Court in 2019. Justice Abdul Nazeer is on the far right | Photo: PTI

The first of what could be many review petitions challenging the Supreme Court’s unanimous Ayodhya verdict has been filed by the Jamiat Ulama-i-Hind.

It would be interesting to see the Supreme Court judges react any differently other than dismiss the review petition, even though many, including former Supreme Court judges, have pointed out the gaping holes in the 9 November judgment. My bet is on the judges dismissing the review petition after a perfunctory in-chambers hearing.

But it is a bet that I would love to lose.

I had written on the day of the judgment that the Supreme Court had done a fine balancing act, even as it unfairly decided to pander to the demands of the majority Hindu community.

It is now clear that the judgment didn’t satisfy the Muslim litigants, who rightly feel short-changed. But here’s why not much may come out of the review petitions, the second of which is expected to be filed by the All India Muslim Personal Law Board (AIMPLB) before 9 December.

Too much expectations

It takes people of high moral integrity and standard to acknowledge that their decision might have been wrong. Can the Supreme Court judges follow this dictum?

It may be too much to expect the judges to acknowledge that not one or two but all five members of the Constitution bench went wrong.

It hardly matters that former Supreme Court judge A.K. Ganguly, at a discussion in Delhi on the Ayodhya verdict Monday, tendered a vote of no-confidence in the judgment, saying, “…the conclusions of the judgment are not matched by its reasons, rather they are mutually destructive.”

Moreover, despite the clamour and clear signs that the Ayodhya verdict was anything but perfect, the Supreme Court may decide against reopening the case also because it firmly believes that its verdict was the only way to give closure to the oldest and most controversial religious disputes in India.

The judges who will hear the review petition are more likely to be led not by the legal nuances of the case but the belief that their decision to re-revisit the judgment could give rise to fresh communal tensions.

Even the petition, filed by Jamiat president Maulana Syed Asshad Rashidi on behalf of the original litigant in the Babri Masjid-Ram Janmabhoomi dispute case, M. Siddiq, is clear about the ‘sensitivity’ of the issue. “The review petitioner is conscious of the sensitive nature of the issue and understands the need to put a quietus to the issue in dispute so as to maintain peace and harmony in our country, however, it is submitted that there can be no peace without justice,” the petition reads.

Where is the reason for review?

The review has been filed under Article 137 of the Constitution, which says that, subject to provisions of any law and rules made under Article 145, the Supreme Court has the power to review any judgment delivered by it.

In dealing with review petitions in civil cases, the court is guided by Order XLVII, Rule I of the Code of Civil Procedure. This deals with the grounds for review, the most important of which is “some mistake or error apparent on the face of the record”.

More importantly, as the 1997 Parsion Devi vs Sumitri Devi case established, while a judgment may be reviewed if there is an ‘error apparent’, it is not permissible for an erroneous decision to be “reheard and corrected”. “A review petition, it must be remembered, has a limited purpose and cannot be allowed to be ‘an appeal in disguise’,” the bench had ruled.

In a case as sensitive as the Ram Janmabhoomi-Babri Masjid, it would be fallacious, even though laudable, to hope that the judges will agree to review their judgment.

For those who believe that secularism is still thriving in India, it may be of some value to point out that the judgment, which rewarded Hindus for having encroached upon the Babri Masjid land illegally, fails on many fronts. Justice Ganguly questioning if the “demolition of the mosque constitute a better possessory title of the Hindus” may be a matter of debate. But the judges do not necessarily have to agree.

Divide within Muslim community

There is a clear divide among Muslims as to whether reviewing the Ayodhya verdict is a good idea.

A few days ago, the chairman of the National Minority Commission advised against filing a review petition. His logic: it could be seen as an affront by the majority community, which would feel that Muslims were trying to create obstacles for the Ram Mandir in Ayodhya.

The statement is significant because it is the clearest but unspoken signal that Muslims are fearful of any reprisal from the Hindu community if the construction of Ram Mandir doesn’t begin soon. Leaders of the ruling Bharatiya Janata Party (BJP), including ministers who have sworn to uphold the Constitution, do not miss any opportunity to voice their sentiments in favour of constructing the temple – with the economy in an uncontrolled downward spiral, Ram and a ‘bhavya’ (grand) temple in Ayodhya could prove to be the saviour for the Narendra Modi government and the BJP. In such a scenario, is there anything apart from showing magnanimity, even if it is clearly under duress, that the Muslim community can offer now?

Such is the divide that the Muslim parties can’t agree even on whether to persist with the services of their advocate – Rajeev Dhavan. In a Facebook post on Tuesday, Dhavan said he has accepted “the ‘sacking’ without demur”.

Little chance

Finally, review petitions have very little chance of succeeding.

In majority of cases, the Supreme Court dismisses them, often without affording the lawyers a chance to argue their case.

In recent times, if any judgment deserved to be reviewed, it was the Supreme Court’s ruling in the Rafale case. There were errors so apparent that the judgment would keep drawing attention for the poor penmanship as well as (mis)understanding of the law and procedure. But the Supreme Court dismissed all review petitions.

In the Ayodhya matter, there is no error. It is just the Supreme Court that pandered to the majority view in the hope that the demands for more temples in place of existing mosques will no longer be voiced.

The author is a senior journalist. Views are personal.