[EXCLUSIVE] “Ayodhya dispute was not an inter-religious dispute, it was a land dispute:" In conversation with Justice Ashok Bhushan

Justice Ashok Bhushan retired as a judge of the Supreme Court on July 4, 2021. One of the five judges on the Constitution Bench that delivered the historic Ayodhya verdict, Justice Bhushan spoke to Bar & Bench's Debayan Roy on a wide range of relevant legal issues, apart from the judgment itself..Below are the excerpts from the interview..Q. You were a part of the Supreme Court's historic Ayodhya verdict. How well do you think courts are suited to decide on such inter-religious disputes?.It is not an inter-religious dispute and that notion is a misnomer. It is basically a land dispute between two communities, stating one is worshipping there and the other said they too are worshipping there. There is no dispute between faith..Hindu faith is different and Muslim faith is different. Both have different followers. It is not a dispute of faith. Faith is a very personal thing and everybody has a right to it and I am a firm believer of the same. This was only a dispute regarding a piece of land and it had to be decided on the basis of evidence..Hindus said it was the birthplace of Ram and Muslims said it was the site of a mosque built by Babur. These are all historical facts and disputes dated 500 years ago with some evidence available and some evidence not available. .The Ayodhya dispute was not an inter-religious dispute. It was a land dispute.Justice Ashok Bhushan.Question was whether a mosque was created after demolishing a Hindu temple. Suppose it was constructed on the Hindu structure, then the legality of the Mosque itself was in doubt. Because some (Islamic) scholars say mosques cannot be constructed on a disputed site..Q. Why did you feel the need to write an addendum to the Ayodhya verdict?.Initially, the then Chief Justice of India Ranjan Gogoi had thought to form a bench of all future Chief Justices so I and Justice Abdul Nazeer were ousted. Justices UU Lalit and (current CJI) NV Ramana recused themselves and thus we were made a part of the Bench..I authored the addendum to the Ayodhya judgment..I authored the addendum to the Ayodhya judgment. Some judges were of the view that it should not be a part of the main judgment.Justice Ashok Bhushan.That was my view, but some judges were of the view that it should not be a part of the main judgment. But I had said it was important to write it, as it was about how the land was the birthplace of Lord Ram. But there was some dispute on whether it should be a part of the main judgment since I had quoted religious scriptures and some judges were of the view that it should not be a part of the main judgment.Thus, came the addendum. It was the decision of the Chief Justice that the judgment should be maintained to be by all and it was correct, since it was unanimously accepted..Q. Was deciding that case a daunting task, given the ramifications a verdict either way would have?.We had faith in people. In fact, everybody including religious leaders had stated that they will follow our verdict. Our judgment in the Ismail Faruqui case was also accepted by the people. No one disobeyed our verdict. .We have no doubt that whatever judgment the Supreme Court delivers, people will accept. Indian people are very tolerant people. Thus, we were confident and it proved to be true..Q. You began hearing the suo motu COVID-19 migrant crisis matter in May 2020. Do you think the top court was a bit late in taking cognizance of this issue?.Suo motu cognizance was taken once we started receiving information from the newspapers. The cognizance was taken by the Bench based on media reports. It takes some time. .But as soon as we started realizing things were getting out of hand, we took action. Initially, we thought the government would take action. Lockdown was imposed and it was said no one should move from one place to another..When we saw that migrants were moving, we thought some remedial action would be taken by the government. But maybe cognizance could have been taken earlier if someone would have alerted us a little earlier. As soon as we realized that the courts should intervene, we did so..But maybe cognizance could have been taken earlier if someone would have alerted us a little earlier.Justice Ashok Bhushan.Q. At what point do you think courts should step into the realm of executive decision-making?.The separation of functions in the Constitution is very clear. Functions of judiciary, executive and legislature are clearly demarcated. Although there is a golden balance that one would not encroach upon the other. .When the executive does not do its duty or a mandatory duty under a statute, then courts have to intervene. Courts are there for people and to protect their rights. Intervention is only when the executive is not performing its role..Although the judiciary should not interfere in the executive domain, if there are two modes which the executive can adopt, judiciary is in no place to suggest which to adopt since we are no experts. There has to be a balance and judiciary should be reluctant to enter into the executive domain..Q. Prior to the pandemic, there was a notion that the Supreme Court was dealing with important cases by simply adjourning them, and was increasingly siding with the Executive. What is your take on this?.No action of the judiciary can be said to be deliberate. Judiciary has its own rules, roster and own problems.Larger benches cannot be easily constituted since you cannot tie five judges to one case. Therefore, I will not say that a deliberate attempt was made to delay any case. Courts take up cases as per their convenience and as per the Chief Justice' decision. So many cases are pending and it is his decision how cases are listed..Q. As someone who has delivered a number of judgments on criminal law, do you think Section 124A of IPC (Sedition) needs a relook?.Since the Supreme Court is already considering it, and when something is pending, I would not like to give my views. The matter is sub-judice and the court will take a call. It is a provision of law due to legislative policy. Criminal law and criminal jurisprudence has its own policy. Something which is an offence today may not be an offence tomorrow and it depends on legislative policy. The Court will test this very policy..Q. Discussions on the validity of the Unlawful Activities (Prevention) Act have once again come to the fore. Do you think discussing the merits of the Act in a bail matter, which the Delhi High Court did, is called for?.When a question is not raised, the court should not express its view on that. Consideration of bail is a completely different issue and while considering whether bail has to be granted or not, the court should not embark upon the correctness of a legislation because that is not the subject matter there. Courts should confine themselves to the issues which are needed for such grant of bail. Bail can be on liberty or his release may not be fit as they may misuse liberty. These are the considerations and not the validity of a law..Delhi Riots case: How the Delhi High Court caught the bull by the horns while confronting Section 43(D)5 of UAPA.Q. Do you believe that the Supreme Court should function purely as a Constitutional Court? If yes, what is the system you envision?.The Supreme Court from 1950, and as envisaged by the framers of the Constitution, always had civil, criminal and constitutional jurisdiction. Therefore, stating that it should only be a constitutional court is not correct.Criminal and civil appellate jurisdiction is given by the Supreme Court itself. It is thought to be the last apex court too in civil and criminal matters. Thus, it is the constitutional scheme. Constitutional questions are more important and the Supreme Court must decide issues of constitutional law first as they impacts the entire country, but other issues too are a part of the top court. Thus it should continue as so and not purely as a constitutional court. Lastly, it is for Parliament to decide this..Q. Given the number of times the Supreme Court has called upon constitutional authorities to introspect on their actions, do you think the Court does enough of this for itself?.Introspection cannot be confined. Everyone should introspect. Every human being for his development should introspect. Society consists of persons and if a person introspects, it leads to a better society. All organs should introspect and no one is above it.It's a wrong notion that judges don't introspect. They too introspect and try to improve themselves. Though it is not visible. It is only due to introspection that views change and some judgments are overruled..If public opinion sways a judge he is a weak judge. Media opinion should not sway a judge.Justice Ashok Bhushan.However, public opinion should have no bearing on decisions and judges should only go by law. We have to decide as per law and not as per opinion. We are bound by the Constitution and law, and not public opinion.If public opinion sways a judge, he is a weak judge. Media opinion should not sway a judge. It is difficult to assess whether such an opinion is correct or not. Finding out the truth is not an easy thing and the exercise of all judges is to find our truth..Q. There is a demand to have Supreme Court lawyers be designated as High Court judges. What are your views on this?.There is no prohibition on it. Suppose a lawyer from a particular state is practicing before the Supreme Court, he can be considered for elevation as a judge in the concerned High Court. But the Collegium of that particular High Court has to consider his candidature. But I do not think any amendment to the Memorandum of Procedure is needed for this.Suppose a High Court Collegium wants to consider the name of a lawyer who has his roots there, it is up to them. The judgments of cases he appeared in, his or her reputation, everything depends on it. Earlier too, lawyers practicing before the Supreme Court were elevated as High Court judges. Dr BS Chauhan was also elevated to Allahabad High Court and I have myself appeared before him..[UPDATE] SCBA claims CJI NV Ramana agreed to proposal to elevate Supreme Court lawyers as High Court judges; Not confirmed by CJI office.Q. Can you recall some of your most memorable moments during your long tenure as a judge?.The hearing in the Ayodhya case has been one of the precious ones of my whole career. The level of arguments advanced made it the best hearing I could be part of. It is the closest to my heart..Q. The way legal reporting started and the form it has attained now is very different. What is the path ahead?.Whatever judges observe is for public consumption. This is because it is a public hearing. If there is something we are observing, we are consciously doing so. There is nothing wrong in reporting this. Observations of judges are related to cases. Queries posed by a judge are often to elicit answers from the lawyers..There is nothing wrong in media reporting observations made by judges during hearing.Justice Ashok Bhushan.One thing has to be taken in consideration - whatever observation made by the judge is not his final opinion. There are still areas for him to look into. Such views often change as arguments are made. Often, observations get painted as judgments in the media..Q. Recently, a former High Court Chief Justice upon retirement commented upon how if every order is appealed before the Supreme Court, it demoralizes the lower judiciary. Your take?.The Supreme Court is there to correct any mistake made by High Courts. The High Court is an independent constitutional body. High Court judges are free to make their decisions. Whenever a judgment needs correction, the Supreme Court does that. But that is not demoralizing..A judge is never demoralized if his judgment is set aside. The hierarchy of courts is there only for this reason that incorrect judgments are corrected. That does not mean the judge is wrong, but it only means the system is functioning in the manner in which it was supposed to. If the Supreme Court is not interfering anywhere, then it is not correctly exercising its jurisdiction..Q. Do you think caricatures, cartoons, etc on the judiciary call for contempt?.I would generally say no, as these are all expressions of opinion. Unless it brings down the dignity of court. Then it may be contempt..If someone with an oblique motive criticises some judge which will lower the dignity of the court in public, then it may be contempt. It has to lower the dignity of the court as an institution. If such a feeling goes to public that it is a body of incompetent people, then it may be contempt.There are only limited cases which fall under it. Freedoms are already there, but there must be a check. That person needs to be told that you have freedoms but there are restrictions..Q. There is a growing tendency of law students to write to the Chief Justice and Attorney General regarding issues. Your take?.I do not think that is correct. Law students are just beginners and are learning the law. They should not be so impatient in filing PILs. I have personally seen this. This is happening because they read newspapers and they are unaware of PIL jurisdiction..Law students are just beginners and are learning the law. They should not be so impatient in filing PILs.Justice Ashok Bhushan.A lot of PILs are also filed to be known in society. If it is by a person who seeks fame, courts should not entertain it. Media should also ignore such PILs when they know its for personal publicity.But as a judge, we never pre-decide a case. We read case files and then we ask the counsel. Th hearing has a very important role and sometimes we may think a case will be dismissed, but after hearing counsel, we allow it..Q. What are your future plans?.I was appointed as Chairperson of the Ravi and Beas Water Tribunal last year on July 28. Since it has to be headed by a sitting Supreme Court judge, I will take continue in the role. It has to deal with the inter-state water distribution and disputes. We will soon start hearing issues regarding river sharing of Haryana, Punjab as of now.