The Supreme Court on Saturday delivered a long-awaited judgment in the longest-running civil dispute in the history of India — it held that the 1,500 square yards of disputed land in Ayodhya, where the Babri masjid once stood until it was demolished in 1992 by karsevaks, belonged to 'Bhagwan Shri Ram Virajman' the deity who was the plaintiff by legal fiction in one of the three claims to the disputed land out of which the appeals had arisen before the Supreme Court.
Earlier in 2010 the Allahabad High Court had partitioned the property where one-third each had been granted to the deity, the Nirmohi Akhara and the Sunni Central Waqf Board. The Supreme Court held that the high court had exceeded its powers by partitioning the property even though no such prayer had been made by any party either in the suits or before the Allahabad High Court.
While doing so it held that only the Supreme Court had powers under Article 142 of the Constitution of India to grant extraordinary relief and the high court did not have any such constitutional power. While setting aside the judgment of the Allahabad High Court the Supreme Court, however, exercised powers under Article 142 to pass various orders which had not been originally prayed for by the parties to the controversy.
So, what is Article 142 of the Constitution?
Article 142 of the Constitution empowers the Supreme Court to "…pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India…".
This is a very wide power granted to the Supreme Court which allows it to mould any relief in a way that its orders become more effective if it feels that doing so would be in the interest of justice and equity. In exercising this power, the Supreme Court may pass any directions in its wisdom which otherwise may not have been provided for in law or asked for by the parties before it. The philosophy behind this is that justice should not only be done but it should also appear to be done.
For example, in a case where the Supreme Court grants compensation to a victim of a motor vehicle accident it may even pass directions to relevant authorities to provide medical aid free of cost or provide employment to next of kin of the victim if it feels that the victim deserves so in the interest of justice. This is an extraordinary power which was probably intended to be utilised only in the fittest of cases.
However, what is now prevalent is that the Supreme Court passes orders under cover of Article 142 even in cases where the law may not support its position or may not provide for such relief. Recently, a bench of the Supreme Court hauled up bureaucrats from the state of Punjab, Delhi and Uttar Pradesh for not controlling stubble burning which leads to a great smog during winters in North India. It passed a slew of directions which would otherwise have been in the domain of the executive.
In the Ayodhya judgment, the Supreme Court thus described its power under Article 142 — "The phrase 'is necessary for doing complete justice' is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts."
In simpler words, the power under Article 142 can be exercised when the Supreme Court has to decide difficult cases where adequate laws may not exist, or existing laws may not be adequate, in order to deliver complete justice.
Now, before we get into how the Supreme Court used this power in the Ayodhya verdict, it may be useful to summarise what the Supreme Court substantially held in the case. The court held that, while the desecration of the Babri Mosque in 1949 and its demolition in 1992 was illegal and against the rule of law, the Sunni Central Waqf board failed to establish its title over the disputed land where the mosque once stood. The court found that the outer courtyard of the property was exclusively being used by Hindus for worship and the inner courtyard was being claimed both by Hindus and Muslims. It refused to treat the two divisions of the disputed land as separate and held that the entire land should devolve to Hindu parties as there was insufficient evidence to prove that the Muslim parties enjoyed exclusive title over the inner courtyard. Therefore, it dismissed the claim of the Waqf Board over the land, while granting sole title to the deity.
However, despite dismissing the Waqf Board's claim the court felt that great injustice had been suffered by Muslim parties due to the illegal demolition of the mosque in 1992 which deprived them of their place of worship. Therefore, it invoked its power under Article 142 to direct the central government to grant an alternate site measuring five acres within the area acquired by the central government by way of the Acquisition of Certain Area at Ayodhya Act in 1993. As an alternative, it directed the Government of Uttar Pradesh to grant such alternate land to the Board at a prominent location in Ayodhya. The Board was granted liberty to build a mosque and additional facilities over such five acres of land.
While granting the title over the disputed land to the deity, the Supreme Court directed the central government to transfer control of the land to a Trust or Authority to be established for building a temple and for management of the land and future temple. The court set a three-month deadline for the establishment of such a body, and directed that the land to be granted to the Waqf Board should be handed over at the same time as handing over of the disputed land to the appropriate body within these three months. Considering that the Muslim parties may challenge the judgment by filing a review before the Supreme Court and may not therefore accept the alternate land, this direction to hand over both parcels of land simultaneously may create complications and further litigation.
Even though the Supreme Court had dismissed Nirmohi Akhada's claim over the disputed land for being delayed under law, it was of the view that historically the Akhada had played an important role in Ayodhya and therefore again invoked its power under Article 142 to direct the central government to include the Nirmohi Akhada in the the body which would be responsible for management of the future temple land. The Akhada will consider itself a victor despite having its claim over the land rejected by the court. The Waqf Board, on the other hand, would be feeling hard done in the face of specific findings of illegality of the 1949 desecration and 1992 demolition of the Babri mosque.
In summation, the Supreme Court passed directions under Article 142 under a belief that it was necessary to do so because of the complex story of the dispute which involved religion, history and law and because it felt that the current laws were inadequate to deal with such complexities. Only time will tell whether such justification proves to be right or wrong.
Author is Advocate-on-Record of the Supreme Court and has penned 'The Great Repression - the story of sedition in India' (Penguin 2019)
Updated Date: Nov 10, 2019 12:12:12 IST