A three judges bench of the Supreme Court on September 27, 2018 decided that the ratio of Ismail Faruqui judgment does not require reconsideration by a Constitution Bench. This was pleaded as a precursor to the arguments in the first appeal before Hon’ble Supreme Court of the Allahabad High Court judgement which had divided the Ram Janmabhoomi complex area into three parts. It was, as pointed out by many legal experts, a tactics for delaying the hearing of the title suit of the Ram Janmabhoomi land, and now the hindrance having been removed the arguments on merits of the case before the Court is closer than ever.
After the disputed structure was brought down on December 6, 1992 and the UP government was dismissed under Article 356, the Government of India brought an ordinance to acquire the Ram Janmabhoomi complex and adjacent land till the dispute is settled finally. The subsequent Act of the Parliament, giving permanent effect to the Ordinance, was under challenge in the Ismail Faruqui v. Union of India.
The right to freely profess and practice one’s religion is a fundamental right protected under Article 25 of the Constitution. Through various decisions, the Supreme Court evolved an ‘essential religious practice’ test as a standard against which religious practices are to be measured to decide whether a practice is constitutionally protected or not. The essence of the test is that the constitution only protects those practices which are so essential to the religion that the core of the religion is ceases to exist if such a practice is not protected. The genesis of the doubts casted over Ismail Faruqui are due to an observation in the judgement that mosques are not essential to practice of Islam and such an observation was made without any consideration of the tenets of the religion.
Reliance on one-line observations in isolation which were not central to the reasoning of the Court and which were expressed in a limited context pertaining to the issue before the Court is a misplaced interpretation of the rule of precedents in the Court of law. Further, it had no effect to the claims of the parties in the title of the land in dispute in Ayodhya.
The submission in Ismail Faruqui was that due to the special status of mosques in Islam, the state cannot acquire land upon which a mosque is situated as it is protected under freedom of religion in Article 25. This was rejected by the court, which held that Entry 42 of the Concurrent List in the Constitution empowers the union and the states to enact law to acquire property. This sovereign power of acquisition by the state per se does not impinge upon Article 25 of the Constitution. Further, Article 25 which recognised the right to practice and profess religion does not include a right to own or possess property. Hence freedom of religion cannot be invoked to prevent the acquisition of any mosque under the sovereign power of the state of acquiring land.
As essentiality is a test in determining rights under Article 25, the Court clarified that only in one case conflict can be there between the power of acquisition and freedom of religion; i.e. when the place of worship is essential to the practice of the religion. Thus, in that case the power of acquisition will infringe on an individual’s freedom to practice religion under Article 25, and such acquisition will be invalid. It was in this context that the Court discussed the concept of ‘particular significance’ of a place of worship and protection accorded to it under Article 25 as opposed to every place of worship of a religion. In this context, the Court further observed that offering prayer at every location where it can be offered is not essential part of the religion.
The concept of ‘particular significance’ is only an extension of the tests of essentiality and intergrality required to be satisfied to claim protection under Article 25. The reasoning is thus – just as only practices integral to the religion are protected, so would only places of worship which hold ‘particular significance’ to the religion should be protected from acquisition by the state, and not every place of worship. It is in this context of immunity from acquisition that the Court observed that every location where prayer is offered does not command automatic immunity and every location (thus, every mosque also) cannot be essential to Islam to be protected from acquisition. Further, no arguments were raised on the question of ‘particular significance’ of the disputed structure brought down in 1992, and how acquisition of that particular property will lead to extinguishment of rights of Muslims under Article 25 of the Constitution of India.
Hence, the entire proceedings for reconsideration was based on deliberate misreading of singular sentences in isolation where the court without ambiguity held that immunity from acquisition can only be linked to Article 25 rights through the essentiality test wherein the place ought to have ‘particular significance’.
Another logical inconsistency reflected in this effort to delay the merits of the case is that if at all the petitioners believed that their freedom of religion will get violated; they had to in the first place establish that they have a right title to the land in question. Consequently, these questions on the observations in Ismail Faruqui could have come only post the merits of the case and decision of the Supreme Court in the title suit; if at all they win.
The Hon’ble dissenting judge in the decision dissented from the majority opinion and held that Ismail Faruqui requires reconsideration for the decision of title suit of the Ram Janmabhoomi land. The reasons, however, are glaringly in disregard of legal principles and fail in their logical conviction.
Firstly, the dissent notes that the contentious observation of mosque not being integral to Islam is made without undertaking comprehensive examination. The dissent on this note conveniently overlooks that the observation did not mean mosque has no value in religion and thus has no constitutional protection as has been tried to portray, the observation in its wholesome meant that for the purposes of acquisition, any particular piece of land will not be protected because a religious worship happens to take place on that land; drawing from the test of essentiality which is the bedrock of judicial interpretation of religious rights, the place ought to have ‘particular significance’ in the practice of the religion to violate the fundamental right to freedom of religion. Simply put, the observation meant any and every mosque is not essential to Islam, and thus can face acquisition by the state like any other privately owned land.
Secondly, it reasons that the decision of the Allahabad High Court is impaired with heavy reliance on the questionable observations in Ismail Faruqui. This was simply a copy of the submission of the Petitioners which has been comprehensively discussed and rejected by the majority judgement, which the dissent chooses to ignore. The present title suit is anyway not affected by the observations in Ismail Faruquias the acquisition was effected to eventually transfer the land to the rightful title holders as decided by the suit. Thus essentially, the case being a contest over land, if the Petitioners had reasonable conviction to argue their merits, eventually the acquisition would have had no force and the land would have been transferred to them. Further, if at all the Hon’ble Supreme Court were to hold that the Allahabad High Court judgement is wrongly relying on Ismail Faruqui, the appeal is before the Hon’ble Supreme Court and on merits of the title suit it can overrule such reliance, instead of calling for Ismail Faruquito be reconsidered.
Thirdly, the dissent treads upon a journalistic, non-legal basis of referring Ismail Faruqui to a higher bench, because of seriousness and importance of the matter. This runs contrary to the constitutional basis of referring cases to a constitutional bench which requires a substantial question of law as to the interpretation of the Constitution. Doubts were not raised on the powers of the state to acquire land, and also not on the settled law that state cannot acquire land of particular significance to the practice of religion. The only doubt was on a wrong reading of the observation that mosque is not essential to Islam. This nevertheless, is a determination of fact based on the tenets of the religion. There can hardly be a substantial question of law raised even on extrapolation of the issues and their context as discussed in Ismail Faruqui. Further, a reference in an appeal additionally requires that such substantial question of law be necessary for disposal of the appeal. The present appeal being a title suit warrants decision on the merits of the parties and evidence on the record as to the rightful title of the Ram Janmabhoomi complex. The questions as posed by the dissent for a higher bench reflect their lack of necessity with the disposal of the appeal.
In summary, the majority decision succinctly weaves the critical constitutional points in Ismail Faruquiand the limited scope in which they were discussed; rejecting all submissions of the Petitioners based on distorted, isolated readings of what in legal parlance is known as obiter. This judgement substantially charts the course ahead and leaves only the final hearing to take place before a long drawn court battle touching upon the lives of millions can ultimately be brought to a closure with establishing Ramjanmasthan and a grand temple at the Janmabhoomi as a holy pilgrimage for innumerable Hindu devotees.
(Student of Law at The W.B.National University of Juridical Sciences, Kolkata)