No review of mosque order, main Ayodhya hearing next

By not revisiting 1994 verdict, SC paves way for a possible closure of one of India’s most contentious cases

NEWDELHI: The Supreme Court on Thursday paved the way for resumption of the hearing of the Ramjanmabhoomi-Babri Masjid title dispute case and refused to constitute a larger bench to revisit the 1994 verdict that said a “mosque is not essential to the practise of Islam”.

The judgment cuts short the time-line to a possible closure of what is now just a straightforward land dispute case — the complex and broader issue of a mosque not being integral to Islam will now not be reconsidered. The verdict is a shot in the arm for the Bharatiya Janata Party, analysts said, because it can now go to the state elections later this year and the parliamentary elections next year with something to show. A temple in Ayodhya remains on the agenda of the party.

“Among the BJP’s core voters, too, there was a suspicion that the party was merely using it as an issue but was not committed to building the temple. The court’s decision paves the way for a final verdict, and allows the BJP to tell its base that the final moment is close. There are still people who suspect BJP’s use of the issue. But this allows the party to try to consolidate Hindus and polarise in election season,” said professor Badri Narayan of Allahabad’s GB Pant Institute of Social Sciences.

The three-judge bench led by Chief Justice Dipak Misra, in a 2:1 verdict, clarified that the “statement” in the 1994 judgment on the “mosque” by a Constitution bench of five judges was in the limited context of acquisition of land where a religious structure stands.

Justice Ashok Bhushan authored the verdict for himself and the CJI, and ordered listing of the main case in the week starting October 29, fast-tracking its hearing. With CJI Misra retiring on October 2, a new three-judge bench would be constituted by next CJI Ranjan Gogoi.

The third judge on the bench, Justice SA Nazeer, dissented. He said the demand raised by Muslim parties in the title-dispute case — to revisit the 1994 judgment — required an examination by a larger bench of seven judges.

“The statement … “a mosque is not essential part of the practice of religion…..” is a statement which has been made by the Constitution Bench in a specific context and reference. The context for making the above observation was claim of immunity of a mosque from acquisition,” read the majority verdict. The remark is not relevant for the title suit and is not to be treated as governing factor for the same, the bench clarified.

Calling it a questionable observation, Justice Nazeer was of the view that it “certainly permeated the impugned judgement (of the title dispute case by the Allahabad HC)”. “…whether a particular religious practice is an essential or integral part of the religion is a question which is to be considered by considering the doctrine, tenets and beliefs of the religion,” Justice Nazeer said in his dissenting verdict. In 2010, the Allahabad High Court ruled that the disputed land in Ayodhya should be divided into three parts, with twothird portions to be shared by two Hindu plaintiffs and one-third by the Sunni Muslim Waqf Board.

In 1994, a five-judge Constitution bench in the Ismail Farooqui case had considered the question of acquisition of a religious place by the State and upheld the constitutional validity of the law to acquire land in Ayodhya.

Muslim parties in the Ayodhya land title case took objection to the observation that “a mosque is not essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.” They urged a review of that judgment, saying the remark affected the status of mosques in Islam and weighed heavily over Allahabad High Court judges who decided the title suit in 2010. They said the question should be answered before the court hears the main land-dispute case.

The Uttar Pradesh government opposed the petitions, arguing that the Muslim groups were trying to delay the hearing in the case and that they had not raised the matter since 1994 and even in 2010. On Thursday, the state’s chief minister, Yogi Adityanath, welcomed the verdict. “The majority of this nation wants a solution to this at the earliest,” he said hours after the Supreme Court ruling.

The Rashtriya Swayamsevak Sangh (RSS) said it hoped that the title suit would now be heard soon. “We welcome this decision and are confident that a just verdict will be reached over the case at the earliest,” said RSS spokesperson Arun Kumar.

The Congress said in a statement that it accepts the SC judgment and will urge the government to implement when the verdict on the title suit case, as and when it comes.

The 16th century mosque was destroyed in 1992 by karsewaks who brought it down insisting it was the birthplace of Lord Ram and that a temple should stand at the disputed site. Cross-appeals against the verdict reached the top court in 2010.

CJI Misra and Justice Bhushan concluded that the Ismail Farroqui case had no bearing on the title suit case because the observation did not govern the suits that were to be decided on the basis of evidence on record.

Ismail Farooqui had held that acquisition is a sovereign or prerogative power of the State to acquire property and all religious places, namely, church, temple and a mosque and that such an act was not a violation of the rights under Articles 25 and 26 that give freedom to freely practise and propagate religion subject to public order, health and morality.

Another plea raised by the Muslim parties to refer the matter to a Constitution bench because of its “importance” was also turned down.