Why the Supreme Court's Judgment on Mosques is Fatally Flawed

In the Babri Masjid-Ayodhya reference case, no attempts were made to examine Islamic beliefs or practices to determine if a mosque is part of the faith's 'essential practice'. The sacrality of the faith of Muslims in India is being examined in a vicious atmosphere.

Contrary to what some Bharatiya Janata Party leaders have claimed, the request that the Supreme Court take a fresh look at the question of whether a mosque is an essential part of Islam – and thus protected by the constitution – was not an attempt at stalling or delaying the Ayodhya case. Far from it. The very fact that the three-judge bench gave two differing judgments last week shows that this important issue deserved to be heard.

The reason for the delay in the hearing of the matter after the Lucknow high court’s decision in 2010 is no fault of the Muslim parties. In fact, the record shows that the pleadings were not organised till 2018. The documents were helter-skelter. Translations had to be made. Then, and only then, could the case be heard. I had placed the issue for reference, but initially, the judges wanted to hear the case first. I asked the court if I may proceed on merits. Justice Bhushan for the bench said that they wanted to hear the preliminary issue immediately. So I switched to the reference.

The reference

On what was the reference sought? In the 1994 Ismail Faruqui judgment, Justice Verma (for 3 to 2) made a somewhat strange statement at paragraph 85 that if a mosque can lose title by adverse possession (limitation) or acquisition, then

“…there can be no reason to hold that a mosque has a unique or special status higher than that of the places of worship of other religions in secular India to make it immune for acquisition by exercise of sovereign or prerogative power of the state.”

But theoretically, all temples, churches, mosques, etc., can be acquired. Even Tirupati, Kashi Vishwanath, Jagannath and Sabrimala, among others, have been under state control. In fact, one criticism of Indian religious freedom is that the state has nationalised temples. Acquisition was not the point. The dangerous statement in Faruqui is:

“A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in open.”

The phrase ‘even in open’ has its own connotation, but leave it at that. The first part of the statement has nothing to do with the acquisition of religious places. But the implications are huge: derecognising all mosques from constitutional protection as part of the freedom of religion of a Muslim. Such a statement devalues a Muslim’s constitutional rights of prayer.

Senior advocate K. Parasaran (appearing for the deity, Ram Lalla) made a rather disingenuous argument, enunciating a pilgrimage test: for Muslims, it is Mecca, Medina and the Dome of the Rock; for Christians, Jerusalem and places outside India. Whereas for Hindus, the pilgrimages are all inside India. For the record, this is not quite accurate since Mansarovar is in China while the revered shrines of Moinuddin Chishti and Nizamuddin Auliya are very much in India. However, this ‘inside-outside’ pilgrimage test is nothing other than saying India is a Hindu country for the Hindu faith and that other religions (Christianity, Islam, etc) have lesser rights.

Justice Verma in Faruqui went further to distinguish between a mere mosque and the temple when he said, in paragraph 81,

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. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”

 This is a repetition of what is said in paragraph 68.

This strengthens the shrill voices of the Sangh parivar, disguised in the quieter tones of a ‘legal’ statement. What Justice Verma means is that a mosque – indeed, all mosques – are not an essential practice unless they prove that they are particularly significant. This is contrary to the Supreme Court’s settled law.

Supreme Court. Credit: PTI

The Faruqui judgment by the Supreme Court strengthened the shrill voices of the Sangh parivar. Credit: PTI

Why does this matter in a first appeal to the Supreme Court? It was pointed out to the Supreme Court that this ‘essential practice’ argument was invoked before the Lucknow bench in argument and found overt and covert acceptance, thus rendering the judgment flawed.

At the root of all this lies another phrase in the Faruqui judgment, of the “comparative significance” of the unbuilt temple to the destroyed mosque. This reflects the popular imagination of the Sangh parivar that the Muslims should hand over the mere mosque (which the parivar destroyed) and which cannot be compared to the janma bhumi of Lord Ram, irrespective of whether Lord Ram existed or was born on exactly that spot. Such comparisons cannot be made.

That is why we wanted the following questions to go to a larger bench:

1. Whether in the light of the Shirur Mutt case titled The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005, Sri Venkataramana Devaru v. The State of Mysore 1958 SCR 895, Durgah Committee, Ajmer v. Syed Hussain Ali (1962) 1 SCR 383, an essential practice can simply decided expressed by the ipse dixit of the court without a detailed examination of the beliefs, tenets and practice of the faith in question.

2. Whether the test for determining of essential practice is both essentiality and integrality? If so, is the observation in Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P. (1997) 4 SCC 606 at pr. 26 correct, where it is stated:

“…The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion…” (emphasis added)

Clearly, this three judge bench has laid down an incorrect law and needs to be considered and overruled by a larger bench.

3. Does Article 25 of the constitution only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?

4. Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?

None of these issues was examined by Justice Bhushan appropriately. These questions are not meaningless, but are grounded in the principles of constitutional law. In fact, Justice Verma downgraded the very concept of religious freedom in relation to Muslim institutions and virtually decided the high court case in the Ayodhya matter.

The acquisition argument

Justice Ashok Bhushan (for the Chief Justice and himself) tried to disguise the wide statement of Justice Verma denuding mosques from constitutional protection by saying that this statement was in the context of the power of the state to acquire religious sites.

This cover up is misleading for several reasons.

(1) The para encasing this wide proposition begins by saying the correct position may be summarised thus;

(2) nobody had ever argued that acquisition and limitation did not apply to any religious structure. It follows that what he decided was on the basis of civil law, not the tenets of Islam;

(3) never have essential practices been decided on this basis because it was made clear by a judgment in the Shirur Math case, which said that an examination of essential practices has to be done in the context of the belief and practices of that faith;

(4) the statement that prayer in a mosque is not an essential practice was a self-standing statement with all the generality it is heir to;

(5) that statement links up to an invented principle which reiterates that mosques have to have particular significance to get constitutional protection. All churches, mosques and some temples lose out;

(6) importantly, Justice Verma plainly says (in paragraph 66) that there was no acquisition in this case requiring compensation because the Central government has taken over the site not as owner but a statutory receiver. So the argument that all this was in the context of acquisition is without foundation.

The day after: Paramilitary forces stand guard at the makeshift Ram temple on the site of the demolished Babri Masjid on the morning of December 7, 1992. Credit: T. Narayan

The day after: Paramilitary forces stand guard at the makeshift Ram temple on the site of the demolished Babri Masjid on the morning of December 7, 1992. Credit: T. Narayan

Deciding essential practice

Since the doctrine of essential practice is directly linked to the extent of constitutional protection, it is of fundamental importance. The seven-judge Shirur Math case verdict, followed by several other cases, explains how an essential practice is determined by courts.

… The learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.

The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion…(subject to public order, health or morality).

The requirement of examining essential practice is mandatory. So much so, that in the Devaru Temple Case that dealt with untouchability, the court decided that while Dalits can enter the premises to pray, entry to the inner sanctum is prohibited because of essential practices which allow only Gowda Saraswath Brahmins in certain locations of the temple.

It is not disputed that in Faruqui, Justice Verma made no attempt to examine Islamic beliefs or practices but simply pronounced the status of a mosque in Islam on his own, as an asserion without proof.  In the reference case, essential practice was not even examined. Never in the history of the Supreme Court was an examination of essential practices so shoddily treated. In his dissent, Justice Nazeer clearly held that this issue of mosques and essential practice was arrived at “without undertaking comprehensive examination” – in fact without undertaking any examination at all. When either side tried to show Islamic tenets for the reference, the Chief Justice ruled that this argument can be made when (and I assume if) the reference was made to a larger bench. But no reference was made, so this question will never be decided.

High court influenced

During arguments, written submissions were made showing how the Lucknow bench of the Allahabad high court was influenced in various paras by the observations in Ismail Faruqui. These are reproduced by Justice Nazeer in pages 20–38. Hence, he says that “the questionable observations in Ismail Faruqui have certainly permeated the impugned (Lucknow) judgment… expressly and impliedly”

What happens to these observations in the Lucknow judgment under appeal? An interesting situation is created because Justice Bhushan’s majority judgment says:

119. To conclude, we again make it clear that questionable observations made in Ismail Faruqui‘s case as noted above were made in [the] context of land acquisition. Those observations were neither relevant for deciding the suits nor relevant for deciding these appeals.

Does this mean that with this explanation, all these observations in Faruqui as explained will now be wiped out and the Supreme Court now proceeds on the basis that the Lucknow judgment based on these are plainly wrong? Before hearing the case, this clarification is necessary.

Speedy trial or proper justice

No one is trying to stall the case from being heard. As I explained, I was prepared to start the case, but Justice Bhushan wanted the reference issue to be heard first. The gap between 1994-2010 was due to extended arguments in the Lucknow bench. Since it was a civil case, documents had to be tendered, examination and cross examination done, archaeological excavations ordered and elaborate arguments made. Between 2010 and 2018, the delay was because both parties had not filed or indexed the documentary evidence. This was a first appeal on facts and law. It is the duty of the Supreme Court to examine the matter threadbare.

The clamour for speedy trial sounds attractive, but the requirements of justice cannot be dispensed with just because Hindu fundamentalists want the case to be done with so that the temple can be built in 2018 or 2019. The Lucknow judgment was clearly “panchayati”. Under it, the plot belongs one-third to the Muslims, to the extent possible; one-third to the deity (questionably so) and one-third to the Nirmohi Akhara. Surely, this needs to be resolved before anything happens. Incidentally, in 1885, the Muslim right to the site was established. The Hindus can pray there, but don’t own the site.

There is a further threat that if the Supreme Court is not super quick, parliament will intervene. The Places of Worship (Special Provisions) Act of 1991 says that except Ayodhya, all other temples shall enjoy the status quo as on 1947. In Faruqui, the court ruled by a contorted logic of the majority of three (Venkatachaliah, Verma, Ray, with Bharucha and Ahmad dissenting) that the only constitutional method for resolving the dispute is through the courts. Parliament cannot unsettle this.

Tom toms and contempt

Narendra Modi with L.K. Advani during Advani's rath yatra. Credit: Twitter

Narendra Modi with L.K. Advani during Advani’s rath yatra. Credit: Twitter

Hindu tom toms are beating saying: “Mandir banega” (Temple will be built). This is fundamentalist pressure to affect the proceedings and obstruct justice. In this atmosphere, no case can be decided fairly in the eyes of the public. Ridiculous claims are made that the Muslims must concede now. This is unconscionable pressure. In the P.C. Sen case (1970), when the chief minister of West Bengal commented on a pending case concerning limits on the use of milk, the Supreme Court found him guilty of contempt of court. This case is going to be heard under contemptuous circumstances.

The destruction of the Babri Masjid has unsettled all notions of fairness. It was preceded by rath yatras by L.K. Advani and M.M. Joshi. The BJP white paper of 1993 justified this act of destruction. How can you destroy a mosque and say it is yours? In argument, I called this act similar to the destruction of the Bamiyan statues and in my view, those who destroyed the masjid are the Hindu Taliban. Of this there is no doubt.

The Muslim side has to open arguments. They were ready then. They are ready now. But shortcut justice is not the answer for an appeal which is reproduced in small print in three volumes covering over 4,000 pages with scores of documents and evidence. What is at stake is the sacrality of the faith of Muslims in India, who are the third largest Muslim population in the world. They cannot be terrorised into submission. Nor can the case be argued under circumstances that are vicious. But argue we will – as we must.

Justice Verma in Faruqui and Justice Bhushan in this case have pre-emptively knocked the bottom out of the Muslim case. That the ‘minority’ judges dissented in both cases is startling. Worse, Hindu fundamentalists are given a license to trespass into a mosque and destroy it to claim both prayer in, and ownership of the site!

Rajeev Dhavan is a senior advocate in the Supreme Court of India. He is senior counsel for the Muslim appellants in the Ayodhya civil dispute case.