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

Rajeev Dhavan 03 Oct 2018

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.

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 1005Sri Venkataramana Devaru v. The State of Mysore 1958 SCR 895Durgah 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 Wire )