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IN

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

REVIEW PETITION (CIVIL) No __________ OF2019
IN
CIVIL APPEAL NOS. 10866-10867 OF 2010
[Seeking review of the impugned judgment and final order dated November 9, 2019
passed by this Hon’ble Court rendered in Civil Appeal Nos. 10866-10867 of 2010.]

IN THE MATTER OF:

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(MEMO OF PARTIES ARE COMMON IN BOTH APPEAL)

To,
The Hon’ble Chief Justice of India
And His Companion Judges
Of the Supreme Court of India

The humble Petition of the Petitioners above named

1. The present Review Petition is being filed against the Final Judgement
and Order dated 09.11.2019 passed by the Hon’ble Supreme Court of
India in M Siddiq (D) Thr Lrs Versus Mahant Suresh Das & Ors whereby
the Hon’ble Supreme Court was pleased to grant the following order:

“805. We accordingly order and direct as follows:

1) (i) Suit 3 instituted by Nirmohi Akhara is held to be barred by
limitation and shall accordingly stand dismissed;
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other
plaintiffs is held to be within limitation. The judgment of the High
Court holding Suit 4 to be barred by limitation is reversed; and

(iii) Suit 5 is held to be within limitation.

2) Suit 5 is held to be maintainable at the behest of the first
plaintiff who is represented by the third plaintiff. There shall be a
decree in terms of prayer clauses (A) and (B) of the suit, subject
to the following directions:
(i) The Central Government shall, within a period of three
months from the date of this judgment, formulate a scheme
pursuant to the powers vested in it under Sections 6 and 7
of the Acquisition of Certain Area at Ayodhya Act 1993. The
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scheme shall envisage the setting up of a trust with a Board

of Trustees or any other appropriate body under Section 6.
The scheme to be framed by the Central Government shall
make necessary provisions in regard to the functioning of
the trust or body including on matters relating to the
management of the trust, the powers of the trustees
including the construction of a temple and all necessary,
incidental and supplemental matters;

(ii) Possession of the inner and outer courtyards shall be

handed over to the Board of Trustees of the Trust or to the
body so constituted. The Central Government will be at
liberty to make suitable provisions in respect of the rest of
the acquired land by handing it over to the Trust or body
for management and development in terms of the scheme
framed in accordance with the above directions; and

(iii) Possession of the disputed property shall continue to

vest in the statutory receiver under the Central
Government, untill in exercise of its jurisdiction under
Section 6 of the Ayodhya Act of 1993, a notification is issued
vesting the property in the trust or other body.

3 (i) Simultaneously, with the handing over of the disputed property to

the Trust or body under clause 2 above, a suitable plot of land
admeasuring 5 acres shall be handed over to the Sunni Central Waqf
Board, the plaintiff in Suit 4.
(ii) The land shall be allotted either by:
(a) The Central Government out of the land acquired under the
Ayodhya Act 1993; or

(b) The State Government at a suitable prominent place in

Ayodhya; The Central Government and the State
Government shall act in consultation with each other to
effectuate the above allotment in the period stipulated.
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(iii) The Sunni Central Waqf Board would be at liberty, on the allotment
of the land to take all necessary steps for the construction of a mosque
on the land so allotted together with other associated facilities;
(iv) Suit 4 shall stand decreed to this extent in terms of the above
directions; and

(v) The directions for the allotment of land to the Sunni Central Waqf
Board in Suit 4 are issued in pursuance of the powers vested in this
Court under Article 142 of the Constitution.
4) In exercise of the powers vested in this Court under Article 142 of the
Constitution, we direct that in the scheme to be framed by the Central
Government, appropriate representation may be given in the Trust or
body, to the Nirmohi Akhara in such manner as the Central Government
deems fit.
5) The right of the plaintiff in Suit 1 to worship at the disputed property
is affirmed subject to any restrictions imposed by the relevant authorities
with respect to the maintenance of peace and order and the
performance of orderly worship.
806. All the appeals shall stand disposed of in the above terms. Parties
are left to bear their own costs.”
(The Impugned Judgement is annexed herewith as Annexure P -1)

2. The Petitioners are not the original parties to the suit; however, they are
deeply aggrieved by the judgement passed by this Hon’ble Court. The
petitioners in this review petition, belong to various Indian faith traditions
(including Hindu, Muslim, Sikh, Christian, Buddhist, Jain, apart from
people with atheist and agnostic convictions), and are bound by their
shared profound commitment to the morality of the Indian constitution.

3. The Petitioners are of the firm belief that the judgement passed by this
Hon’ble Court errs in both fact and law, and through this Review Petition
the Petitioners seek to bring to the fore these errors apparent and assist
the court in rectifying these errors.

4. The Judgement from its beginning paragraphs has referred to the

litigating parties as ‘the Hindus’ and ‘the Muslims’. It is pertinent to
mention, the Vishwa Hindu Parishad, a militant Hindutva outfit and close
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affiliate of the Rashtriya Swayamsevak Sangh, does not represent Hindus

at large, any more than the Uttar Pradesh Sunni Central Board of Waqf
represents India’s Muslims at large. However, there is no avoiding that
this age-old title dispute of the Babri Masjid Ram Janmabhoomi has
become a dispute adjudicating the respective constitutional rights of
Hindu and Muslim people of the country. And by taking up this appeal,
the Hon’ble Supreme Court of India has taken upon itself the crucial
responsibility of adjudicating on and upholding the secular principles of
our Constitution.

5. The Petitioners, as concerned citizens of the country, have been

aggrieved by the judgment that was passed by this Hon’ble Court on 9th
November, 2019, as it has violated the same secular principles of the
Constitution that it sought to uphold, by choosing to give exclusive
ownership of the disputed land to the Hindu parties, for building of the
Ram Temple, while rewarding the Muslim parties with a poor
compensation of a plot of land admeasuring five acres elsewhere.
6. The Petitioners believe that this case has a critical bearing and profound
implication across generations for the upholding of many fundamental
rights, including the right of equality, of life, and of freedom of worship,
and therefore they believe that every citizen of India has the right, and
indeed the duty, to intervene in order to seek steps to defend and uphold
their constitutional rights, to preserve the secular and democratic
character of the Indian republic.

7. This Hon’ble Court in National Textile Corporation Ltd. v.

Nareshkumar Badrikumar Jagad & Ors, [2018 SCC OnLine SC
2573] referred to the power of the Supreme Court under Article 137 of
the Constitution, which states, “subject to the provisions of any law made
by Parliament or any rules made under Article 145, the Supreme Court
shall have power to review any judgment pronounced or order made by
it.” The Court upheld that third parties to a proceeding that consider
themselves aggrieved may take recourse to the remedy of a review
petition. It was mentioned that according to Section 114 of the Code of
Civil Procedure “any person considering himself aggrieved” would have
locus to file a review petition. It was stated as follows:
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“18. Order XLVII of CPC restates the position that any person
considering himself aggrieved can file a review petition. Be that
as it may, the Supreme Court exercises review jurisdiction by
virtue of Article 137 of the Constitution which predicates that the
Supreme Court shall have the power to review any judgment
pronounced or order made by it. Besides, the Supreme Court has
framed Rules to govern review petitions. Notably, neither Order
XLVII of CPC nor Order XLVII of the Supreme Court Rules limits
the remedy of review only to the parties to the judgment under
review. Therefore, we have no hesitation in enunciating that even
a third party to the proceedings, if he considers himself an
aggrieved person, may take recourse to the remedy of review
petition. The quintessence is that the person should be aggrieved
by the judgment and order passed by this Court in some respect .”
Question of Possession

8. There was grave inconsistency in the Court claiming that there was no
evidence of Muslim prayer in the inner structure between 1528 and 1857,
while accepting that the mosque existed for over 450 years. As asserted
by leading historian Irfan Habib, ‘The possibility of the Babri Masjid having
had no Muslims to pray in it during Mughal times is a simple piece of
judicial fancy.

9. In the opening paragraph of the judgment, the court states that the
‘Hindu community’ believes that the disputed site was ‘the birthplace of
Lord Ram, the incarnation of Lord Vishnu’. This is simply not true. Some
Hindus may believe that Ram was born at that precise location, and others
do not. It is entirely true that Hindus believe that Lord Ram was born in
Ayodhya, but there is a diversity of beliefs if the Ayodhya of his birth is in
fact present-day Ayodhya. And even within present-day Ayodhya, there
are multiple sites which residents claim to be where Lord Ram was born.
On what grounds does the court privilege one ‘faith and belief’ that Ram
was born at the site of land under the central dome of the demolished
mosque over the ‘faith and belief’ of innumerable other Hindus that Ram
was born elsewhere?
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10. Professor Romila Thapar has opined that “ there was some confusion
about the location of Ayodhya. Hindu texts have spoken of it as being on
the banks of the Sarayu river. But Buddhist texts refer to it on the banks
of the Ganges. So, is it a mistake on the part of the Buddhist texts? Which
is unlikely because Ayodhya was a big enough town for them to know
whether it was on the Ganges or on the Sarayu. And Ayodhya was made
into an important city with trade links. Now in the Gupta period there is
evidence that they were looking for Ayodhya, and the city of Saket which
was on the Sarayu was designated as being Ayodhya. This was done on
the basis of some early references to Saket and Ayodhya being very close
together - to Saket being almost a suburb of Ayodhya. But, the evidence
is clear that there was concern about the location of Saket and Ayodhya
and Saket was henceforth from the Gupta period referred to as Ayodhya.
This is a bit of historical clarification that might be of some interest’.

11. Dr Romila Thapar continues: ‘When was Saket identified as Ayodhya?

Now if one argues that Saket was identified as Ayodhya in the Gupta
period then where would the Janmabhoomi have been? In Saket or in
Ayodhya? This is a question that needs an answer. The Buddhist texts
seem to refer to the present day location of Ayodhya as Saket which is
why they put Ayodhya on the Ganges. They refer to the capital of Kosala
as Saket. And then in the Gupta period it is said that Saket is Ayodhya.
So this raises a very fundamental question about the location of
the Janmabhoomi. Buddhist texts also refer to Ram as the son of
Dasharatha but Dasharatha is consistently called the king of Banaras.
Now this is an interesting - I mean it can be a mistake, a lot of scribes
and writers make mistakes about their geography, they were not very
good - but the interesting point is that the king of Banaras is a kind of
idiom that these Jatakas use, the Buddhist texts, the Jataka texts as they
are called. Everybody now and again have a prince called the Prince of
Banaras, he’s called the King of Banaras and so on. That they don't specify
that Dasharatha is the King at Ayodhya and of Kosala is strange because
they do know the city of Ayodhya, they do know Kosal, they do talk about
Dakshin Kosala, Uttar Kosala and so on. So, its not as if they don't know
that. But they don't associate Ram with Ayodhya. They associate him
with, quite wrongly, the King of Banaras. But there is a discrepancy in the
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Buddhist texts and in the Hindu texts and that discrepancy I think has not
been considered in the judgement.”

12. Despite having reiterated that the case was to be decided purely as a
property suit between the parties, the Court framed the dispute from the
very first paragraph of its judgment to be one between two religious
communities. Unfortunately, as stated earlier, throughout the course of
the judgment, the Court consistently described the dispute as one
between “Hindus” and “Muslims”. In doing so, the Court seriously
misconstrued the nature of the legal dispute, the legal submissions of the
parties, and the role of religious identity in it, by assuming that all Hindus
and Muslims in the country are homogenous communities who share the
views of the respective parties to the dispute. In doing so the Court has
violated the secular framework of the Constitution of India. As
constitution-minded persons from various faith and no-faith backgrounds,
the petitioners take serious objection to the Court treating the case to
involve their religious faith and identity.

13. The Court on evidence found that there was no conclusive evidence on
either side to show ownership of the disputed land as a composite
whole. It was held that Hindus were able to show exclusive possession
of the outer courtyard before 1857, whereas Muslims failed to show
similar exclusive possession of the inner courtyard before 1857.
However, it maintained that both failed to establish exclusive possession
of the land as a composite whole; even so, Hindus were awarded full title.
This reasoning of the court was legally deficient and manifestly unjust.

14. Specifically, the Court was wrong because it used differential

standards of proof for both parties. It held that ‘the Muslims’ had
failed to prove that they had exclusive possession of the inner
courtyard, however it was enough in the case for ‘the Hindus’ to
show that they believed that the Ram Janamsthan lay under the
central dome of the mosque. Evidence was required for the so-
called Muslim parties to the dispute, whereas for the so-called Hindu
parties an assertion of faith and belief was enough. The Court ruling in
favour of one party in this scenario is without any legally reasonable
ground.
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15. The Court, on the basis of preponderance of probabilities and

evidence, ruled that the Muslim parties were unable to show on-
going Islamic worship within the inner compound from 1528 to
1856. But neither were the issues in the case framed to adduce
such evidence nor did any of the parties, including the Muslim parties,
invited to adduce such evidence. In fact, the Court itself noted that
such historical questions such as the date of the construction of the
mosque “would essentially make no difference to the submissions of
the rival sides. The plaintiffs in Suit 4 have stated before this Court
that the records on which they place reliance in regard to their claim of
worship, use and possession commence around 1860. This being the
position, the precise date of the construction of the mosque is a matter
which has no practical relevance to the outcome of the controversy
having regard to the pleadings in Suits 4 and 5 and the positions adopted
by the contesting Hindu and Muslim parties before this Court.” In
light of this, the Court accepted that the case involved adducing
evidence of worship around 1860. Thus, there is a contradiction in
the ruling of the Court for relying on the absence of evidence before
this date, which was neither required not done by any parties
concerned.

16. It was held by the Court that the ASI report established that the
Babri Masjid was not built on empty land, however they were not
able to establish the nature of the underlying structure. There was no
evidence of the underlying structure being a Ram Mandir. But by
allowing the conversation to be about what lies below, it further exposes
other religious structures as many places in the country which may
have been destroyed and rebuilt many times under different
dynasties. This section of the judgement contravenes the constitutional
premise that there are no sound legal and constitutional grounds
to try to correct the alleged, possible and established wrongs of history in
the 21st century. If there is, who will decide where this will end? Will
these ‘correctives’ apply to other disputed places of worship? And further,
how far in history should we go? And why we should select some histories
and not others to rectify? Even more importantly, what in our constitution
and law justifies these judicial choices?
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17. Furthermore, the very fact, as the Court has noted, is that inter-
community discord and riots had continuously occurred. The Court itself
notes that, “The disputed site has been a flash point of continued
conflagration over decades. In 1856-57, riots broke out between Hindus
and Muslims in the vicinity of the structure.” As the Court accepts,
these incidents led to the British building a grill-brick fence, conclusively
suggesting that there was a continuing Muslim worship at the disputed
site, or at least in the inner compound.

18. The Court’s determination of evidence suffers from patent contradiction.

While it is true that the travelogues of foreign travelers do mention that
Hindus revered the site of the complex, they do not on any account
suggest that Muslims did not use the site as a religious place of
worship. Hence the Court’s reliance on these materials cannot ipso
facto indicate what it has inferred them to mean, that is, an absence of
Muslim worship until 1857.

19. Furthermore, the accounts of the European Travelers has to be viewed

with the same skepticism as we would view any other historical
document along with an understanding of the time spent in the
country, and knowledge of local language and culture. Without
acknowledging this, they can be simply dubbed as tourists who are
recounting the stories as stated to them by the locals. It is also
important to note that even they talk about the place Ayodhya and not
the exact site of worship.

Rewarding Criminal Act for Civil Gains

20. There lies an inherent contradiction in the judgment inasmuch as it
recognizes the act of the destruction of Babri Masjid as illegal and yet,
legitimizes the collective motive of the mob that caused the destruction
by directing the construction of the Temple in its place. It is pertinent to
recognize that the orders passed would not have been possible if the Babri
Masjid was still standing today. The judgment is therefore unsustainable
in light of various illegal acts committed by different militant Hindutva
outfits to dispossess the Muslims of their place of worship.
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21. The Hon’ble Court has failed to consider the settled principle of law that
a tainted cause of action cannot be sustained or decreed in a civil suit.
The judgement fails to adjudicate the impact of the said illegal acts upon
the cause of action of the Hindu parties, that is tainted by acts of trespass/
destruction of property. It further makes itself complicit in the illegality,
by directing all parties towards the very ends, that were sought through
and would not have been possible without the commission of the said
illegal acts. Consequently, this Hon’ble Court has enabled the Hindu
parties to take benefit of their illegal actions which is also prohibited by
settled rule of nullus commodum capere potest de iniuria sua propria (no
man can take advantage of his own wrong). The review petitioners quote
the judgement of this Hon’ble court in Indore Development Authority
v. Shailendra, (2018) 3 SCC 412 at page 511, in this regard:

“It is a settled proposition that one cannot be permitted to take

advantage of his own wrong. The doctrine commodum ex injuria sua
nemo habere debet means convenience cannot accrue to a party from
his own wrong. No person ought to have advantage of his own wrong.
A litigant may be right or wrong. Normally merit of lis is to be seen on
date of institution. One cannot be permitted to obtain unjust injunction
or stay orders and take advantage of own actions. Law intends to give
redress to the just causes; at the same time, it is not its policy to foment
litigation and enable to reap the fruits owing to the delay caused by
unscrupulous persons by their own actions by misusing the process of
law and dilatory tactics.”
22. That this Hon’ble Court has failed to consider the basic principle that no
person can derive a benefit out of an illegality. While the judgment
correctly recognizes and condemns the several illegalities committed by
various militant Hindutva outfits at Babri Masjid , in furtherance of their
communal agenda to build the temple in that exact spot, the operative
paragraphs of the judgment overlooks the fact that the illegality
perpetuated by the mob was a pre requisite to, give anyone the sanction
to build Ram Mandir. The judgement thus violates the principles of
natural justice by directing the construction of the temple without
administering justice for the illegal act of the destruction of the masjid.
23. This Hon’ble Court has utterly failed to consider that settled principle of
law i.e. ex dolo malo non oritur actio (no right of action can have its origin
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in fraud). By failing to effectively adjudge and adjudicate upon the various

illegal acts done in furtherance of the goal to build a temple upon the
disputed site, and then ordering the said construction themselves, the
Hon’ble Court has willingly allowed for a fraud not just on the Muslim
parties to the dispute but on the Constitution of India. The collective
motive of the mob in bringing down the Babri Masjid in 1992 and the
cause of action of the Hindu parties, reinforce and cannot be viewed
exclusive of one another. The actions of the above said Hindutva outfits,
now valorized by the impugned judgment, were calculated to bypass the
rule of law, as the destruction of the Masjid can never find legal sanction
in the secular ethos of India. The directions given by the impugned
judgment are morally abhorrent and constitutionally invalid in light of the
fact that, if the mosque were still standing ,the directions in effect would
amount to a Supreme Court order to demolish a historical structure as
well as a betrayal of the secular ethos of the constitution, by ordering a
construction of a Mandir in its place. While the judgement, effectively
declares the destruction of the masjid illegal, it proceeds to conduct a
miscarriage of justice, by not adjudicating upon the causes, effects and
perpetrators of the crime, and treating the destruction as an inevitability
of the Hindu’s faith in Ram Janmabhoomi, a movement highjacked by
communal politics. The Review Petitioner thus relies on the dictum of Lord
Mansfield in Holman v Johnson (1775) 1 Cowp. 341 at page 343:

“The principle of public policy is this; ex dolo malo non oritur actio. No
Court will lend its aid to a man who founds his cause of action upon an
immoral or an illegal act. If, from the plaintiff's own stating or otherwise,
the cause of action appears to arise ex turpi causa, or the transgression
of a positive law of this country, there the Court says he has no right to
be assisted. It is upon that ground the Court goes; not for the sake of
the defendant, but because they will not lend their aid to such a plaintiff.
So if the plaintiff and defendant were to change sides, and the defendant
was to bring his action against the plaintiff, the latter would then have
the advantage of it; for where both are equally in fault, potior est
conditio defendentis.” (See also Kedar Nath Motani v Prahlad Rai and
Ors., AIR 1960 SC 213 at para 14; Immani Appa Rao and Ors. V Gollapalli
Ramalingamurthi and Ors., AIR 1962 SC 370).
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24. The court thus errs in providing justice for the act of the Masjid
destruction that was allegedly done in the name of unshakable faith in
Ram Janmabhoomi. It condemns yet rewards the actions of the said
Hindu outfits by taking it upon themselves to direct the construction of
the very thing, that the Masjid was desecrated and demolished for.
25. That this Hon’ble Court failed to consider the settled principle of law i.e.
commodum ex injuria sua nemo habere debet – a wrongdoer should not
be enabled by law to take any advantage from his actions. By overlooking
the impact of the wanton acts of trespass and destruction, upon the claim
of the Hindu parties to the dispute, the court in effect legitimizes
majoritarian mob justice as a violent but acceptable outlet of communal
sentiment. The observations of the court condemning such acts are
nullified by the final directions given, made possible only due to the
abovesaid illegal actions of desecration, trespass and demolition of the
masjid, now valorized as a necessary measure to build the Ram Temple
and restore Hindu integrity against Muslim invaders. By framing these
questions of law along with feudal communal concerns of a movement
unduly influenced by politics, this court has contributed to undoing the
secular ethos of the country in public imagination.
26. This Hon’ble Court has disregarded the settled and basic principle of law,
that no person should not be able to take advantage of his/her wrongful
actions. Actions such as damaging the domes in 1934, desecrating the
Babri masjid in 1949 and the demolition of the Babri Masjid in 1992, were
calculated illegal acts aimed toward challenging the rule of law and the
authority of this court by inflaming irrational communal passions
regarding the alleged existence of the Ram Mandir. However, this Court,
while condemning the said challenge to its authority, and rejecting all
their prayers on technical grounds, fails to hold the responsible parties
accountable for their actions and instead rewards their ill thought
sentiment with a government sanctioned plan, to complete the work they
started.
27. That the Orders passed by this Hon’ble Court have allowed the concerned
militant Hindutva outfits to take advantage of their illegal actions such as
placing the idol under the central dome on the intervening night of
December 23/24 1949 which were done to further manufacture a cause
of action. The Hon’ble Court fails to consider this act in light of the settled
principle of law i.e. ex turpis causa non oritur actio (from a dishonorable
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cause an action does not arise). (Please See Narayanamma v

Govindappa, (2019) SCCOnline SC 1260) .The resulting cause of
action of the parties purporting to represent Hindu interests has been
tainted with the illegality of the above mentioned acts, thus violating the
basic principle of law that any party seeking relief from this court must
approach it with clean hands. The judgment has thus failed to consider,
much less adjudicate upon the impact that the attempts to communalize
this matter has on the claim of the parties purporting to represent Hindu
interests. The repeated violations of the status quo and the orders of this
court, were a product of the irrational communal passions that were
drummed up by parties with vested interests, who sought to attribute
their illegal actions to unshakable faith in Lord Ram, which they clearly
placed above the authority of the Supreme Court. Even though the
judgment dated 9th November, admonishes these parties for their actions,
that violate several fundamental constitutional tenants, the court has not
placed any weightage upon its own observations and proceeded to not
only condone, but actually reward the actions of these parties who failed
to approach the court with clean hands.
28. While the freedom to practice one’s religion is a fundamental right
enshrined in the Constitution of India, there continues to be a rather
limited understanding of its place in the constitutional and legal
framework of the country as well as the reasonable restrictions placed
upon it. Any attempts to manipulate these traditions of social bargains
with religious deities, through claims of building the Ram Mandir, for the
purpose for claiming superiority over another community or for the
purposes of garnering votes, violate constitutional norms and should be
curbed at its very root. If allowed to fester, they take the form of irrational
communal sentiments or attempts to subvert the judicial process.
However, this court has failed to consider that the Ram Mandir - Babri
Masjid issue has been used as socio political fodder for decades, by parties
and organziations such as the BJP, RSS, VHP, the Bajrang Dal and other
individuals purporting to represent Hindu interests, for vote bank politics
and to increase enmity between Hindu and Muslim communities. The
matter was communalized by these parties to the extent that the current
ruling disposition of the Bharatiyta Janata Party promised the construction
of the Ram Mandir in its manifesto leading up to the 2019 Lok Sabha
Elections thereby tacitly disrespecting the jurisdiction of the Hon’ble
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Supreme Court in deciding whether or not a Ram Mandir could be built at

the site on which the Babri Masjid had stood; thereby attempting to
subvert and unduly influence the ongoing judicial process regarding the
same. The faith-based claim eventually sought to reduce a religious deity
revered by millions to a juristic personality, for the purposes of claiming
title to a small piece of land. Such a movement could not have been
sustained, without the concerned parties arousing irrational communal
passions, by projecting the alleged destruction of the Ram Mandir and the
construction of the Babri Masjid as a sign of the Muslim minority
dominance of the Hindu majority population of India, thereby trying to
gain legal sanction for populist majoritarian sentiment. Unfortunately,
despite the fact that the said parties failed to approach this court with
clean hands, this Hon’ble court has not only entertained but in effect
granted their pleas with a few amendments.

Violation of Article 15
29. The Supreme Court has given more importance to the faith of one
community over the faith of another community which violates Article 15
of the Constitution which says that the State shall not differentiate on the
basis of religion. The Supreme Court has erred by placing higher value
on the “faith” of the Hindus while dismissing the practice of “faith” by the
Muslims. To justify this, the Court has given higher credence to the “faith”
of Hindus which have not been asked to justify their faith or produce
evidence of the same while the Muslim parties have been asked to provide
proof of practice, belief and ownership.

30. This is in contradiction to the judgement of the Hon’ble Supreme Court

on the Sabrimala issue wherein the Supreme Court opined that the faith
of every community has to be tempered against the constitutional
framework of justice, equality and rights.
31. Justice Chandrachud in Indian Young Lawyers Assocation and Ors
v. State of Kerala and Ors (2018 SCC On Line SC 1690) has opined
that:

“1. The Preamble to the Constitution portrays the foundational

principles: justice, liberty, equality and fraternity. While defining
the content of these principles, the draftspersons laid out a broad
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canvass upon which the diversity of our society would be

nurtured. Forty two years ago, the Constitution was
amended to accommodate a specific reference to its
secular fabric in the Preamble. Arguably, this was only a
formal recognition of a concept which found expression in
diverse facets, as they were crafted at the birth of the
Constitution. Secularism was not a new idea but a formal
reiteration of what the Constitution always respected and
accepted: the equality of all faiths. Besides incorporating a
specific reference to a secular republic, the Preamble divulges the
position held by the framers on the interface of religion and the
fundamental values of a constitutional order. The Constitution is
not – as it could not have been - oblivious to religion. Religiosity
has moved hearts and minds in the history of modern India.
Hence, in defining the content of liberty, the Preamble has spoken
of the liberty of thought, expression, belief, faith and worship.
While recognising and protecting individual liberty, the Preamble
underscores the importance of equality, both in terms of status
and opportunity. Above all, it seeks to promote among all citizens
fraternity which would assure the dignity of the individual.

3. The four founding principles are not disjunctive. Together, the

values which they incorporate within each principle coalesce in
achieving the fulfilment of human happiness. The universe
encompassed by the four founding principles is larger the sum
total of its parts. The Constitution cannot be understood without
perceiving the complex relationship between the values which it
elevates. So, liberty in matters of belief, faith and worship, must
produce a compassionate and humane society marked by the
equality of status among all its citizens. The freedom to believe,
to be a person of faith and to be a human being in prayer has to
be fulfilled in the context of a society which does not discriminate
between its citizens. Their equality in all matters of status and
opportunity gives true meaning to the liberty of belief, faith and
worship. Equality between citizens is after all, a powerful
safeguard to preserve a common universe of liberties
between citizens, including in matters of religion.
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Combined together, individual liberty, equality and fraternity

among citizens are indispensable to a social and political ordering
in which the dignity of the individual is realized. Our understanding
of the Constitution can be complete only if we acknowledge the
complex relationship between the pursuit of justice, the protection
of liberty, realization of equality and the assurance of fraternity.
Securing the worth of the individual is crucial to a humane society.

7. Yet, the right to freedom of religion is not absolute. For the

Constitution has expressly made it subject to public order,
morality and health on one hand and to the other provisions of
Part III, on the other. The subjection of the individual right to
freedom of religion to the other provisions of the Part is a nuanced
departure from the position occupied by the other rights to
freedom recognised in Articles 14, 15, 19 and 21. While
guaranteeing equality and the equal protection of laws in Article
14 and its emanation, in Article 15, which prohibits discrimination
on grounds of religion, race, caste, sex or place of birth, the
Constitution does not condition these basic norms of equality to
the other provisions of Part III. Similar is the case with the
freedoms guaranteed by Article 19(1) or the right to life under
Article 21. The subjection of the individual right to the freedom of
religion under Article 25(1) to the other provisions of Part III was
not a matter without substantive content. Evidently, in the
constitutional order of priorities, the individual right to
the freedom of religion was not intended to prevail over
but was subject to the overriding constitutional
postulates of equality, liberty and personal freedoms
recognized in the other provisions of Part III.”

32. The faith of the community cannot override the faith of another
community and the practices of two faiths cannot and should not be
compared as the expression of that faith can also differ. By placing a
higher value to the faith of the Hindus who have essentially been given
the benefit of assumption merely by stating that their faith is in that area
as done by the Hindus. Interestingly, this belief is not without doubt (as
has been expressed by eminent historians such as Professor Romila
Thapar and Professor Irfan Habib, mentioned above inter alia.) The
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historical documents that have been relied upon by this Hon’ble Court
also do not completely dismiss the faith the Muslims or contradict the
presence of the Mosque in that period of history. Therefore, even if
historicity has to be looked at for this decision it cannot be discounted
from the lens of Constitutional principles of equality and freedom of
religion
Differential standards of proof

33. The Court in the conclusion on title of its judgment, weighed the proof
adduced by both parties showing their worship on the disputed land over
the centuries. However, when coming to a decision, it unfairly placed a
higher value on one side to the dispute over another. The balance of
probabilities was erroneously said to be in favour of the Hindus, based on
the fact that they had proved to be worshipping in the outer courtyard
since 1857, but also proved to worship in the inner courtyard prior to
1857, thereby stating that the Muslim parties had failed to prove exclusive
possession of the inner courtyard. However, the Court failed to appreciate
that neither parties had proved exclusive ownership of the land.
Therefore, by providing exclusive ownership of the disputed land to the
Hindu worshippers, and completely excluding Muslim worshippers from
access to the land, the faith of one of the communities was consequently
regarded higher than the other, thereby violating the secular principle
embedded in the Constitution of India.

34. In the conclusion of the judgment, the Court stated as follows:

“797. On the balance of probabilities, there is clear evidence to indicate
that the worship by the Hindus in the outer courtyard continued
unimpeded in spite of the setting up of a grill-brick wall in 1857. Their
possession of the outer courtyard stands established together with the
incidents attaching to their control over it.

798. As regards the inner courtyard, there is evidence on a

preponderance of probabilities to establish worship by the Hindus prior
to the annexation of Oudh by the British in 1857. The Muslims have
offered no evidence to indicate that they were in exclusive possession
of the inner structure prior to 1857 since the date of the construction in
the sixteenth century. After the setting up of the grill-brick wall, the
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structure of the mosque continued to exist and there is evidence to

indicate that namaz was offered within its precincts. The report of the
Waqf Inspector of December 1949 indicates that Muslims were being
obstructed in free and unimpeded access to mosque for the purposes of
offering namaz. However, there is evidence to show that namaz was
offered in the structure of the mosque and the last Friday namaz was
on 16 December 1949. The exclusion of the Muslims from worship and
possession took place on the intervening night between 22/23 December
1949 when the mosque was desecrated by the installation of Hindu idols.
The ouster of the Muslims on that occasion was not through any lawful
authority but through an act which was calculated to deprive them of
their place of worship. After the proceedings under Section 145 of CrPC
1898 were initiated and a receiver was appointed following the
attachment of the inner courtyard, worship of the Hindu idols was
permitted. During the pendency of the suits, the entire structure of the
mosque was brought down in a calculated act of destroying a place of
public worship. The Muslims have been wrongly deprived of a mosque
which had been constructed well over 450 years ago.”

35. There were certain inconsistencies on the part of the Court, by coming to
this conclusion. The Court, on the one hand, agreed that the Babri Masjid
was constructed in 1528 under the command of Babur, however it was
held that there was no account by the Muslims of possession, use or offer
of namaz in the mosque between the date of construction and 1856-57.
It was held by the Court that for a period of over 325 years which elapsed
since the date of construction of the mosque until the setting up of a grill
brick wall by the British, the Muslims had not adduced evidence to
establish the exercise of possessory control over the disputed site.

36. The questioning of the use of the mosque from the time of its construction
till the time the British constructed the wall in 1857, dividing the areas of
worship between the two communities, is manifestly incorrect. Judicial
notice under Section 57 of the Indian Evidence Act ought to have been
taken of the fact that the existence of a mosque meant that prayers were
held within the mosque, unless proved to the contrary. The belief that the
mosque that was built on the orders of a Mughal ruler, historically
believed to be a devout Muslim, in the time of the sovereign rule of the
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Mughals, was not used for offering prayers would have been a departure
from the norm. To use the phrase adopted by the Hon’ble Court in this
ruling, the ‘preponderance of probability’ was certainly that there was
uninterrupted prayers in the Babri Masjid from the time of its construction
to 1857. No formal proof ought to have been required for this under
Section 56 of the Indian Evidence Act. By asking for proof of worship in
this time, the Court was shutting the judicial eye to the existence of facts
and matters in a sense as an insult to common sense, thereby reducing
the judicial process to a meaningless and wasteful ritual , as was
mentioned in the case of Onkar Nath v The Delhi Administration.
[1977 AIR 1108].
37. In the case of Onkar Nath v The Delhi Administration [1977 AIR
1108] one of the points urged before the Supreme Court of India was
whether the courts were justified in taking judicial notice of the fact that
on the date when the appellants delivered their speeches, a railway strike
was imminent and that such strike was in fact launched on May 8, 1974.
It was held as follows:
“The list of facts mentioned in Section 57 of which the Court can take
judicial notice is not exhaustive and indeed the purpose of the section is
to provide that the Court shall take judicial notice of certain facts rather
than exhaust the category of facts of which the Court may in appropriate
cases take judicial notice. Recognition of facts without formal proof is a
matter of expediency and no one has ever questioned the need and
wisdom of accepting the existence of matters which are unquestionably
within public knowledge. (See Taylor, 11th Edn., pp. 3-12; Wigmore,
Section 2571, footnote; Stephen's Digest, notes to Article 58; Whitley
Stokes' Anglo-Indian Codes, Vol. II, p. 887.) Shutting the judicial eye to
the existence of such facts and matters is in a sense an insult to
commonsense and would tend to reduce the judicial process to a
meaningless and wasteful ritual. No court therefore insists on formal
proof, by evidence, of notorious facts of history, past or present.”

38. It was legally unreasonable for the Muslim parties to be required to prove
that a negative fact by adding positive evidence. The Court did not provide
reasoning for believing that there were no prayers that were held in the
mosque, hence it ought to have taken judicial notice of the fact that
prayer were offered in the mosque. Under Section 56 of the Indian
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Evidence Act, where judicial notice has been taken by the Court, no
evidence ought to be provided for the same.

39. The Court relied on ‘clear evidence’ of Hindu worship in the outer
courtyard, while they stated that with regard to the inner courtyard for
the Hindus there was evidence on a preponderance of probability that the
Hindus worshipped there, whereas Muslims have “offered no evidence to
indicate that they were in exclusive possession of the inner structure prior
to 1857”. The Court held in its judgment that the Muslim account of
worship prior to 1856 was conspicuously silent as opposed to the accounts
of worship being offered by the Hindus. This is not in line with the
historical account provided by the Court of the communal riots that took
place in 1856-57 which resulted in the colonial administration setting up
a grill-brick wall to bring about a measure of peace between the
conflicting claims of the two communities. Communal riots caused by the
conflicting claims ought to have been enough proof that there were issues
raised by both communities regarding the offering of prayers at the
disputed site. The Court should have come to the conclusion that this was
enough to prove that the Muslims were offering prayers prior to 1856-57.

40. The incongruity of reasoning of the judgment is clear from the fact that
the Court accepted that neither of the parties were able to claim exclusive
possession of the inner courtyard of the disputed site. Despite this, the
Court decided in favour of one of the parties over the other, with no
convincing reason for doing so. The Court clearly used differential
standards of proof for both parties. The Court ruling in favour of one party
in this scenario was without any legally reasonable ground.

41. In order to come to the conclusion that it did, in favour of the Hindu
worshippers, the Court relied on accounts of travellers such as Joseph
Tieffenthaler, who visited the region in between 1743-1785 William Finch,
who visited the region in 1608-11 and Montgomery Martin, all of whose
findings were used to back the claim of the Hindu parties. While their
findings did indicate that Hindus believed Ayodhya was the birthplace of
Ram, and therefore a place of holy worship, the Court failed to account
for the equally valid presence of the Mosque of Babur in Oudh all of the
accounts of these travellers. The mention of the mosque by the travellers,
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in the absence of mentioning that it was an abandoned mosque, is enough

to indicate that prayers were being carried out there, thereby refuting the
argument of the Court stating that there was not enough evidence of
worship prior to 1857.

42. Further, the Court agreed that there was an exclusion of Muslims from
worship and possession which took place on the intervening night
between 22/23 December 1949 when the mosque was desecrated by the
installation of Hindu idols. This was a gross violation of the sanctity of the
mosque, and ought to have been punished severely.

“The ouster of the Muslims on that occasion was not through any lawful
authority but through an act which was calculated to deprive them of
their place of worship. After the proceedings under Section 145 of CrPC
1898 were initiated and a receiver was appointed following the
attachment of the inner courtyard, worship of the Hindu idols was
permitted. During the pendency of the suits, the entire structure of the
mosque was brought down in a calculated act of destroying a place of
public worship. The Muslims have been wrongly deprived of a mosque
which had been constructed well over 450 years ago.”
43. The Court acknowledged the wrongs done to the Muslims that worshipped
at the Babri Masjid by the Hindu worshippers that desecrated the mosque.
However, by rewarding it with the title suit and erroneously offering the
Muslim parties a compensation of 5 acres elsewhere of land to the Sunni
Central Waqf Board, the Court failed to ensure that justice was done.

44. The Court claimed that there were indications that despite the division by
the colonial government of the disputed land, the Hindus continued to
worship from the inner courtyard. This claim was backed up by the fact
that in March 1861, Mohd Asgar and Rajjab Ali joined in complaining
against the erection of a chabutra without permission near Babri Masjid,
and other such instances where the Hindu worshippers violated the
sanctity of the Muslim place of worship. These were several instances of
attempted desecration of the place of worship of the Muslims which the
Court erroneously used as evidence of Hindu worship, and ultimately in
the conclusion to show that the inner courtyard was being accessed by
Hindus and therefore granting the exclusive title to the Hindu parties.
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“The documentary evidence also shows that the setting up of the

railing did not as a matter of fact result in an absolute division of
the inner and outer courtyards as separate and identified places
of worship for the two communities. Soon after the incident of
November 1858 in which the Nihang Singh is alleged to have
organised a hawan puja and to have erected a symbol of ―Sri
Bhagwan within the premises of the mosque is the
commencement of a series of episodes indicating that the
exclusion of the Hindus from the inner courtyard was neither
accepted nor enforced a matter of ground reality.”
45. The Muslim parties by confining their worship to the inner courtyard were
respecting the sanctity of the Hindu beliefs and worship; however, the
same respect was not accorded to them. The Court has incorrectly ended
up holding this attempt at peaceful co-existence against the Muslim
parties by excluding them from the ownership of the disputed land
completely.

46. The Court relying on documentary evidence, repeatedly cited instances of

the Hindu worshippers violating the sanctity of the segregated spaces for
worship that was a direction by the colonial government in the erection
of the railing after the riots in 1856-57, as an indication of the stronger
belief and faith of the Hindu worshippers, and give their claim over the
inner courtyard a higher footing. The Court held as follows:

“The riots of 1934 and the events which led up to 22/23 December
1949 indicate that possession over the inner courtyard was a
matter of serious contestation often leading to violence by both
parties and the Muslims did not have exclusive possession over
the inner courtyard. From the above documentary evidence, it
cannot be said that the Muslims have been able to establish their
possessory title to the disputed site as a composite whole.”

47. This Court in its final conclusion, identifies the acts of 22/23 December,
1949, as the desecration of the mosque and holds that it was in violation
of the Muslim’s rights to worship in the mosque. However, the claim made
in the abovementioned statement incorrectly indicates that the act of the
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desecration of the mosque was seen as a righteous assertion of claim by

the Hindu parties over the mosque area of worship, thereby holding the
faith of the Hindus over the desecration of the mosque.
Constitutional Morality
48. The Constitution envisioned a role for the State within the framework of
Constitutional Morality to ensure that every branch would adhere to the
rule of law. The Court was envisioned as the custodian of the Constitution
responsible for protecting people from violations by other branches and
reinvesting the faith of the people that Constitutional values shall not just
be a dream but actionable for every person including minorities.
49. This view has been expressed in Manoj Narula v. Union of India
[(2014) 9 SCC 1], held that:
“75. The principle of constitutional morality basically means to
bow down to the norms of the Constitution and not to act in a
manner which would become violative of the rule of law or
reflectible of action in an arbitrary manner. It actually works at
the fulcrum and guides as a laser beam in institution building. The
traditions and conventions have to grow to sustain the value of
such a morality. The democratic values survive and become
successful where the people at large and the persons in charge of
the institution are strictly guided by the constitutional parameters
without paving the path of deviancy and reflecting in action the
primary concern to maintain institutional integrity and the
requisite constitutional restraints. Commitment to the Constitution
is a facet of constitutional morality.”

50. Justice Puttaswamy (Retd) and Anr v. Union of India [(2018)

SCC OnLine SC 1642] that:
“786. Constitutional morality requires a government not to act in a
manner which would become violative of the rule of law. Constitutional
morality requires that the orders of this Court be complied with,
faithfully. This Court is the ultimate custodian of the Constitution. The
limits set by the Constitution are enforced by this Court. Constitutional
morality requires that the faith of the citizens in the constitutional
courts of the country be maintained. The importance of the existence
of courts in the eyes of citizens has been highlighted in Harper Lee’s
classic
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“To Kill a Mockingbird”: “But there is one way in this country in

which all men are created equal—there is one human institution that
makes a pauper the equal of a Rockefeller, the stupid man the equal
of an Einstein, and the ignorant man the equal of any college president.
That institution, gentlemen, is a court. It can be the Supreme Court of
the United States or the humblest J.P. court in the land, or this
honorable court which you serve. Our courts have their faults, as does
any human institution, but in this country our courts are the great
levelers, and in our courts all men are created equal.” (Emphasis
supplied)

Many citizens, although aggrieved, are not in a condition to reach

the highest Court. The poorest and socially neglected lack resources
and awareness to reach this Court. Their grievances remain
unaddressed. Such individuals suffer injury each day without remedy.
Disobedience of the interim orders of this Court and its institutional
authority, in the present case, has made a societal impact. It has also
resulted in denial of subsidies and other benefits essential to the
existence of a common citizen. Constitutional morality therefore needs
to be enforced as a valid response to these arbitrary acts. Non-
compliance of the interim orders of this Court is contrary to
constitutional morality. Constitutional morality, as an essential
component of the rule of law, must neutralize the excesses of power
by the executive…. Deference to the institutional authority of the
Supreme Court is integral to the values which the Constitution adopts.
The postulate of a limited government is enforced by the role of the
Supreme Court in protecting the liberties of citizens and holding
government accountable for its transgressions. The authority of this
Court is crucial to maintaining the fine balances of power on which
democracy thrives and survives. The orders of the Court are not
recommendatory – they are binding directions of a constitutional
adjudicator. Dilution of the institutional prestige of this Court can only
be at the cost of endangering the freedom of over a billion citizens
which judicial review seeks to safeguard.”

51. In Navtej Singh Johar vs Union Of India Ministry Of Law And

Justice [(2018) SCC OnLine SC 1350], the Hon’ble Court places a
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burden on the Courts to drive every aspect of life to adhere to the

Constitutional values.
“111. The concept of constitutional morality is not limited to the mere
observance of the core principles of constitutionalism as the magnitude
and sweep of constitutional morality is not confined to the provisions
and literal text which a Constitution contains, rather it embraces within
itself virtues of a wide magnitude such as that of ushering a pluralistic
and inclusive society, while at the same time adhering to the other
principles of constitutionalism. It is further the result of embodying
constitutional morality that the values of constitutionalism trickle down
and percolate through the apparatus of the State for the betterment
of each and every individual citizen of the State.”

52. In this context the decision of this Hon’ble Court which, despite the
caveats of the Hon’ble Court to the contrary, in effect gives primacy to
faith over Constitutional principles of justice, equality and non-
discrimination is jarring. The Supreme Court had the option of simply
deciding this narrowly as a title dispute over a small piece of land in the
small town of Ayodhya. But in actuality it was not simply a title dispute,
nor even a contest between a medieval mosque, now razed, with a grand
temple, still imagined. It was a dispute about what kind of country this is
and will be in the future, to whom does it belong, and on what terms
must people of different identities and beliefs live together in this vast
and teeming land. Since the case has critical bearing and profound
implications across generations of the upholding of many fundamental
rights, of equality, of life, and of freedom of worship, once again every
citizen of India has the right and indeed the duty to intervene to seek
steps of defend and uphold their constitutional rights, and preserve the
secular democratic character of the Indian Republic.

Judicial Overreach
53. Article 142 of the Constitution of India states that “The Supreme Court in
the exercise of its jurisdiction may 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 in such manner as may be
prescribed by or under any law made by Parliament and, until provision
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in that behalf is so made, in such manner as the President may by order

prescribe.”
54. It has been held by the Supreme Court that an order which it makes under
Article 142 in order to do complete justice between the parties must not
only be consistent with the fundamental rights, guaranteed by the
Constitution but it cannot even be inconsistent with the substantive
provisions of the relevant statutory laws - Prem Chand vs Excise
Commissioner AIR 1963 SC 996, Kamala Devi vs Hem Prabha, AIR 1989
SC 1602, Union Carbide Corporation vs Union of India AIR 1992 SC 248,
N A Mohammed Kasim vs Sulochna AIR 1995 SC 1624, Delhi Electricity
Supply Undertaking vs Basanti Devi (1999) 8 SCC 229
55. In Part Q of the judgment, the Supreme Court has directed the Central
Government to vest the right, title and interest in a Trust as per section
6 and 7 of Acquisition of Certain Area at Ayodhya Act 1993 and formulate
a scheme. It further goes on to list out what the scheme must entail and
states that the said Trust would construct the temple as per this scheme.
This is in contravention of the Section 7(2) of the Act, which states that

“In managing the property vested in the Central Government

under Section 3, the Central Government or the authorised
person shall ensure that the position existing before the
commencement of this Act in the area on which the structure
(including the premises of the inner and outer courtyards of such
structure), commonly known as the Ram Janma Bhumi-Babri
Masjid stood in village Kot Ramchandra in Ayodhya, in Pargana
Haveli Avadh, in tehsil Faizabad Sadar, in the district of Faizabad
of the State of Uttar Pradesh is maintained.”

56. The Central Government has also been directed to give "appropriate
representation" to Nirmohi Akhara in the management of the Trust,
despite dismissing Nirmohi Akhara’s claim to the title. In addition to
being vague, it is clear overreach of the power of the Supreme Court
under Article 142.
57. Direction to construct a temple and mandating inclusion of Nirmohi
Akhara which is a Hindu religious denomination is also against the
principle of secularism.
58. Article 142 gives very wide powers to the Supreme to do “complete
justice” but this power is supplementary in nature. But in this case,
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Supreme Court has given a much wider interpretation of Article 142,

practically raising the provision to the status of a new source of
substantive power for itself. Eminent jurist M. P. Jain in his commentary,
Indian Constitution Law (Volume I, Seventh Edition [2018]) writes, “this
extraordinary power of the Court cannot be used, even with the width of
its amplitude to build a new edifice where none existed earlier, by ignoring
express statutory provisions dealing with a subject and thereby achieve
something indirectly which cannot be achieved directly.”
59. According to the Rule of Harmonious Construction of interpretation of
statutes an interpretation that makes the enactment a consistent whole
should be adopted. Therefore Article 142 should be read along with the
other aspects of the Constitution, like secularism and separation of
powers of the legislature, executive and the judiciary. Both of these are
also part of the basic structure of the Constitution as decided in S. R.
Bommai vs Union of India (AIR 1994 SC 1918) and Keshavananda Bharti
vs State of Kerala ((1973) 4 SCC 225)
60. The plenary jurisdiction under Article 142 is the residual source of power
which Supreme Court may draw upon as necessary only when it is just
and equitable to do so, and in particular to ensure the observance of the
due process of law, to do complete justice between the parties, while
administering justice according to law. In this case it is neither just nor
equitable for the highest court of a secular democracy to instruct the
government to build a temple on the site in question. It is even more
striking that while it directs the government to build a temple at the
disputed site, it gives no instructions to the government to rebuild the
mosque demolished at the disputed site through a grievous act of mass
crime which resulted in rioting around the country and the loss of an
estimated 2000 human lives.
61. In comparable democracies like South Africa too, judicial overreach is held
in disdain and the importance of courts not transgressing their boundaries
and overtaking the role of executive or legislature is emphasized. Judge
Davis of in the case of Mazibuko v The Speaker of the National Assembly
and Others (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013
(11) BCLR 1297 (CC) (27 August 2013) held that

"Courts do not run the country, nor were they intended to

govern the country. Courts exist to police the
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constitutional boundaries... Where the constitutional

boundaries are breached or transgressed, courts have a
clear and express role. Only when the Constitution has
been transgressed."
62. A world renowned judicial statesman and the late Chief Justice Ismail
Mohamed of South Africa said: “The independence of judiciary and the
legitimacy of its claim to credibility and esteem must in the last instance
rest on the integrity and the judicial temper of the judges, the intellectual
and emotional equipment they bring to bear upon the process of
adjudication, the personal qualities of character they project, and the
parameters they seek to identify on the exercise of judicial power. Judicial
power is potentially no more immune from vulnerability to abuse than
legislative or executive power but the difference is this: the abuse of
legislative or executive power can be policed by an independent judiciary
but there is no effective constitutional mechanism to police the abuse of
judicial power. It is therefore crucial for all judges to remain vigilantly
alive to the truth that the potentially awesome breath of judicial power is
matched by the real depth of judicial responsibility. Judicial responsibility
becomes all the more onerous upon judges constitutionally protected in
a state of jurisprudential solitude where there is no constitutional referee
to review their own wrongs.”

PRAYER

In the circumstances set forth above, it is therefore respectfully prayed that

this Hon’ble Court may be pleased to:
a) Institute a full Bench for hearing the Review Petition, in recognition
of the fact that this is not merely a title dispute but a contestation
about the core of India’s constitutional morality, and the principles of
equal citizenship, secularism, justice, rule of law and fraternity; and
b) Pass any other or further orders as may be deemed fit and proper in
the interest of justice.

THROUGH:
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COUNSEL FOR THE PETITIONERS

DRAWN BY:
SUROOR MANDER, ANKITA RAMGOPAL,
ADITI SARASWAT, ADVOCATES

DRAWN ON 07.12.2019
FILED ON: 09.12.2019