Ejaz Maqbool and Akriti Chaubey

It is often said that we must take sides, for neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.

It is in this context that we are going to look at the recently pronounced verdict in the Ayodhya dispute, where the essential question was whether certain observations of the Hon’ble Supreme Court in the 1994 case of Dr. M. Ismail Faruqui – particularly the observation that “a Mosque is not an essential part of the practice of religion of Islam and namaz by Muslims can be offered anywhere, even in the open” – required re-consideration by a larger bench.

On September 27, the Hon’ble Supreme Court by a 2:1 majority held that those observations were made in the context of acquisition and in the background that a Mosque is not immune from acquisition by the State. It was further affirmed by the majority that the 1994 case of Dr. M. Ismail Faruqui only meant to hold that unless the place of offering of prayer has a ‘particular significance’ in that religion, any hindrances to offering of prayer at such place shall not affect Articles 25 and 26.

The majority judgment was delivered by Justice Ashok Bhushan on behalf of the outgoing Chief Justice of India Justice Dipak Misra and himself, while the minority judgment was delivered by Justice Abdul Nazeer. Normally, such a conflict of opinion is not witnessed at the stage of referring a matter to a larger bench. However, considering the peculiar history of the instant case, it is not surprising that the Bench was divided in its opinion.

India is a secular nation, however, the concept of Indian secularism is slightly different from the west, in as much as it prescribes that the State should practice the policy of neutrality in the matter of religion. As held by the Hon’ble Supreme Court of India in the landmark case of SR Bommai v. Union of India, the State does not promote any particular religion nor prefers one against another.

Coming back to the Ayodhya Verdict, it upholds the test of ‘particular significance’ in order to confer the protection of Article 25 and 26 on any religious place. The sequitur being that, only if a religious place is of particular significance, does it become essential to the religion for it to be covered within the purview of Articles 25 and 26.

At first blush, this test appears to be extremely sound, logical and reasonable, particularly when it was propounded in the context of land acquisition. However, when this test is applied to a myriad of religions being practiced in our country, it leads to bizarre results.

For instance, all the holy places in Christianity and Islam, which are of ‘particular significance’ in those religions are located outside of India. Does that mean that no church, no mosque or any other religious place built for the practice of these religions is protected under Article 25 and 26? Does that mean that Muslims cannot claim any protection over an ordinary Mosque because their places of religious significance are only Mecca and Medina, and are not located in India? When the test of ‘particular significance’ is approached from this aspect, it begs the question of whether it withstands the secular notions of this country.

The verdict also leaves several other important controversies unresolved. For instance, how did a five-Judge bench of this Hon’ble Court reach a conclusion that a mosque was not essential to the religion of Islam without examining any religious scripts, texts or tenets? A 7-judge bench of this Hon’ble Court in the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt had held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.

In view of this position of law, it is strange that the Hon’ble Court in 1994 came to a finding that a Mosque was not essential to the religion of Islam without examining the doctrines of the religion. The majority judgment passed last week found nothing irregular about such short-circuiting. Notably, the minority judgment refers to this issue and categorically notes that the finding in the 1994 judgment was arrived at without taking any comprehensive examination.

Another aspect worth noting is that while Article 145(3) of the Constitution mandates that a substantial question of law as to the interpretation of the Constitution has to be heard by a bench comprising not less than 5 judges, it is surprising that the majority judgment did not find the issues arising in the instant matter important enough to be referred to a larger bench.

This view was taken despite the fact that in the recent past, matters concerning polygamy, questioning the policy decision permitting Ram Leela and Puja once in a year in public parks, and a matter seeking a ban on the practice of Female Genital Mutilation have all been referred to a larger bench. Again, this aspect has been considered and addressed in the minority judgment.

In any event, the Chief Justice of India, being the master of the roster, has the discretion to place any particular matter before a bench of any strength. However, he deemed it fit not to exercise this discretion.

All that said, the verdict pronounced on September 27 does not do injustice to the parties, but attempts to balance the scales of justice by categorically stating that the observations in 1994 verdict were neither relevant for deciding the suits in question nor are they now relevant for deciding the appeals arising from those suits.

However, the questionable observations made in the 1994 judgment have not been set aside, nor have they been referred to a larger bench for reconsideration. It is kind of a middle path charted out by the Hon’ble Court by not referring these observations for re-consideration, but yet holding that they will not be relevant for the appeals before them. In this background, one cannot help but wonder, who is this alleged neutrality helping?

                                 The authors are Advocates of the Supreme Court of India representing the Muslim Parties in the case.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.