Ashok Bhushan, J. - (1.) These appeals were fixed for commencement of final arguments on 05.12.2017, when Dr. Rajeev Dhavan, learned senior counsel appearing for the appellants (C.A. No. 10866-10867 of 2010 and C.A. No. 2215 of 2011) submitted that the Constitution Bench Judgment of this Court in Dr. M. Ismail Faruqui and Ors. Vs. Union of India and Ors., 1994 6 SCC 360 (hereinafter referred to as "Ismail Faruqui's case") needs reconsideration, hence the reference be made to a larger Bench. The above submission of Dr. Dhavan was opposed by learned counsel appearing for the respondents. After completion of the pleadings, when matter was again taken on 14.03.2018, we thought it appropriate that we should hear Dr. Dhavan as to whether the judgment in Ismail Faruqui's case requires reconsideration.
(2.) We have heard Dr. Rajeev Dhavan, learned senior counsel for the appellants, Shri K. Parasaran and Shri C.S. Vaidyanathan, learned senior counsel for the respondents in Civil Appeal Nos. 4768-4771 of 2011, Shri Tushar Mehta, learned Additional Solicitor General has appeared for the State of U.P. We have also heard Shri P.N. Mishra, Shri S.K. Jain and several other learned counsels. Shri Raju Ramachandran, learned senior counsel has also addressed submissions supporting the reference to larger Bench. Learned counsel for the parties have given their notes of submissions.
(3.) Before we notice the respective submissions of learned counsel for the parties, we need to notice few facts, leading to the Constitution Bench decision in Ismail Faruqui's case. The sequence of events which lead filing of these appeals be also noticed. The Constitution Bench in Ismail Faruqui's case has extracted few facts from White Paper, which was published by Central Government. In Para 5 and 6 of the judgment, the Constitution Bench noticed:- "5. The 'Overview' at the commencement of the White Paper in Chapter I states thus: "1.1 Ayodhya situated in the north of India is a township in District Faizabad of Uttar Pradesh. It has long been a place of holy pilgrimage because of its mention in the epic Ramayana as the place of birth of Sri Ram. The structure commonly known as Ram Janma Bhoomi-Babri Masjid was erected as a mosque by one Mir Baqi in Ayodhya in 1528 AD. It is claimed by some sections that it was built at the site believed to be the birthspot of Sri Ram where a temple had stood earlier. This resulted in a long-standing dispute. 1.2 The controversy entered a new phase with the placing of idols in the disputed structure in December 1949. The premises were attached under Section 145 of the Code of Criminal Procedure. Civil suits were filed shortly thereafter. Interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6-12-1992 the structure had not been used as a mosque." 6. The movement to construct a Ram Temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension. This led to several parleys the details of which are not very material for the present purpose. These parleys involving the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC), however, failed to resolve the dispute. A new dimension was added to the campaign for construction of the temple with the formation of the Government in Uttar Pradesh in June 1991 by the Bhartiya Janata Party (BJP) which declared its commitment to the construction of the temple and took certain steps like the acquisition of land adjoining the disputed structure while leaving out the disputed structure itself from the acquisition. The focus of the temple construction movement from October 1991 was to start construction of the temple by way of kar sewa on the land acquired by the Government of Uttar Pradesh while leaving the disputed structure intact. This attempt did not succeed and there was litigation in the Allahabad High Court as well as in this Court. There was a call for resumption of kar sewa from 6-12-1992 and the announcement made by the organisers was for a symbolic kar sewa without violation of the court orders including those made in the proceedings pending in this Court. In spite of initial reports from Ayodhya on 6-12-1992 indicating an air of normalcy, around midday a crowd addressed by leaders of BJP, VHP, etc., climbed the Ram Janma Bhumi-Babri Masjid (RJM-BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of "national shame". What was demolished was not merely an ancient structure; but the faith of the minorities in the sense of justice and fairplay of majority. It shook their faith in the rule of law and constitutional processes. A five-hundred-year-old structure which was defenceless and whose safety was a sacred trust in the hands of the State Government was demolished.";