SC on Ayodhya: Constitution bench not needed, status of mosques in Islam not examined in 1994

Did the Supreme Court in 1994 state that mosques, where Muslims offer namaz, are not an integral and essential aspect of Islam?

With a 2:1 majority, a three-judge bench of the apex court on Thursday answered this question in the negative, stating that observations on the essentiality of mosques to Islam were in the particular context of the Union government acquiring land in Ayodhya, where a mob of Hindutva activists led by the Bharatiya Janata Party had demolished the Babri Masjid on December 6, 1992. The bench, thus, said there was no need for a larger bench to re-examine the 1994 judgement.

However, the third judge, Justice Abdul Nazeer, dissented, saying the matter needs the consideration of a Constitution bench.

The 1994 observations

In 1994, in Dr M Ismail Faruqui... vs Union Of India, a Constitution bench of the Supreme Court looked into two important aspects. One of these was challenges to The Acquisition Of Certain Area At Ayodhya Act, 1993. On December 7, 1992, a day after the demolition of the Babri Masjid, the Union government headed by Prime Minister Narasimha Rao issued an ordinance acquiring about 67 acres of land in and around that spot in the Uttar Pradesh town. This included the space where the masjid stood, which Hindus claim is the birth place of Ram and where a temple supposedly stood before it was demolished by emperor Babar in the 16th century.

The government argued that it had acquired the land to quell communal riots. In the Act, it included a provision that said all title suits relating to the area would stand abated with the acquisition. Both the Hindu and Muslim sides opposed this move, claiming that it violated their rights to litigate and seek judicial remedy.

On the day the ordinance was promulgated, the government also advised President Shankar Dayal Sharma to make a presidential reference to the Supreme Court, asking it to determine if a temple stood at the site before the mosque was built.

The Supreme Court refused to answer the reference. It upheld the acquisition, stating that the Act made it clear that the government will only be a repository of the land till the dispute is settled. But it struck down that part of the Act that said all title claims would abate with the enactment of the law, thereby paving the way for the Allahabad High Court to decide on the title suit. The High Court gave its verdict in 2010, dividing the land among the claimants – the Sunni Wakf Board, the Nirmohi Akhara and the party representing the deity, Ram Lalla. The parties moved the Supreme Court against this order.

Ayodhya title suit

Proceedings in the Supreme Court over the Allahabad High Court judgement began in October. During its course, senior lawyer Rajeev Dhavan appeared for the Muslim side and argued that the 1994 judgement had made observations detrimental to their cause. He pointed out, in particular, that the 1994 judgement had said mosques were not an integral part of Islam. This had a profound effect on the Allahabad High Court’s judgement, he argued.

Dhavan said the court’s 1994 observations were “ipse dixit”, an unproven statement. Disregarding established legal precedent that mandated an examination of the theological and doctrinal basis in concluding on the essentiality of a certain thing to religion, the court had concluded that mosques were not essential to Islam, he said. He wanted this aspect ascertained by a seven-judge bench.

Senior lawyer K Parasaran, appearing for Ram Lalla, contended that the prayer was “res judicata”, or that which has already been adjudicated. He said the present parties before the Supreme Court claimed to represent the interests of those who had appeared before the court in 1994 and had advanced similar arguments. Therefore, the matter had attained finality, since Ismail Faruqui was not contended even before the Allahabad High Court.

Writing the majority judgement, Justice Ashok Bhushan said that the 1994 verdict made the observations on the position of mosques in the context of land acquisition.

He said that the petitioners in 1994 had argued that no mosque could be acquired by the state since this would violate religious rights guaranteed under Article 25 of the Constitution. In reply to this, the Supreme Court had said not every mosque could be deemed integral to Islam. The court advanced the concept of “particular significance” of a place of worship and said this would apply to temples, churches and mosques. It is through this argument that it upheld the eminent domain of the government to acquire a place of religious worship. The court said:

“The above observation by the Constitution Bench has been made to emphasise that there is no immunity of the mosque from the acquisition. We have noticed that Constitution Bench had held that while offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof.

“The observation need not be read broadly to hold that a mosque can never be an essential part of the practice of the religion of Islam.”

However, in doing so, the court in 1994 made observations that indicated that Ayodhya, as the birth place of Ram, held a significant place in the Hindu religion. This led to a contention from the Muslim side that the observation had impacted the Allahabad High Court judgement, in which the arguments and the verdict cited Ismail Faruqui extensively. This also obscured the balance of religious rights of Muslims and Hindus as one side had the benefit of “particular significance” and the other did not.

On this, the majority opinion of the Supreme Court on Thursday was that the High Court did not decide on the merits of the title suit based on the 1994 observations. It added:

“The High Court has clearly held that mentioning of certain facts in Ismail Faruqui’s case does not mean that those facts stood adjudicated by this Court for the reason that those facts were neither in issue before the Supreme Court nor had been adjudicated. 

“The above view expressed by majority judgement in appeal, thus, makes it clear that the High Court has held that judgement of Ismail Faruqui’s case does not decide any of the issues which are subject matter of the suit.”

Dissenting view

Dhavan had taken exception to certain grounds on which the Hindu side had filed the appeal on the Allahabad High Court judgement. One of these was that the partition of the site would effectively “extinguish the right of Hindus to worship at the site protected by Article 25 being a site which is integral and essential part of Hindu religion”. Another was that the purported Muslim structure in the area was never pleaded to be an essential or integral part of the Islamic religion.

The majority opinion of the Supreme Court was that these grounds “are yet to be looked into and considered by this Court in these appeals”. Therefore, no comment was warranted on these at the moment.

This was the view of Justice Ashok Bhushan and Chief Justice Dipak Misra. But Justice Abdul Nazeer dissented. He accepted Dhavan’s contention that the Ismail Faruqui case did not follow judicial precedent in ascertaining what is integral to a religion. This should be done by examining the “doctrine, tenets and beliefs of that religion itself”, he said, quoting several past judgements.

Citing several passages of the Allahabad High Court verdict, Nazeer said it was clear that the observations in the Ismail Faruqui case had permeated the judgement. “Thus, the impugned judgement can be claimed to be both expressly and inherently affected by the questionable observations made in Ismail Faruqui,” he said. He added that the judgement should, therefore, be referred to a larger bench for reconsideration.