The Supreme Court in its 2:1 majority judgment rejected the plea to refer the case to a larger bench and ruled that the matter will be treated as a ‘land issue’. While delivering the verdict, the Supreme Court also batted for the speedy disposal of the case and said that the hearing in the Ayodhya-Babri masjid case will commence from October 29. However. The judgment was not a unanimous one as Justice Abdul Nazeer gave out the dissenting judgment in the case.
Justice Ashok Bhushan while reading out the majority judgment on behalf of CJI Dipak Misra and himself said that every judgment must be read as applicable to the particular facts.
"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 specific context and reference. The context for making the above observation was claim of immunity of a mosque from acquisition. Whether every mosque is the essential part of the practice of religion of Islam, acquisition of which ipso facto may violate the rights under Articles 25 and 26, was the question which had cropped up for consideration before the Constitution Bench. Thus, the statement that a mosque is not an essential part of the practice of religion of Islam is in context 53 of issue as to whether the mosque, which was acquired by Act, 1993 had immunity from acquisition,” said Justice Bhushan.
The 1994 ruling in M Ismail Faruqui case had said that a mosque was not an “essential part of the practice of the religion of Islam” and hence “its acquisition (by the state) is not prohibited.
Justice Bhushan while delinking religion from the case, said that the matter will just be treated as "land dispute".
"The challenge to the acquisition of the area in excess of area which is disputed area was on the ground that same was unnecessary, hence, ought to be declared invalid. The challenge to excess area was laid by members of the Hindu community to whom the said plots belonged. One of the grounds of attack was based on secularism. It was contended that Act read as a whole is antisecular and against the Muslim community. A mosque has immunity from State's power of acquisition. It was contended on behalf of the Muslim community that the defences open to the minority community in the suits filed by other side including that of adverse possession for over 400 years since 1528 AD when the Mosque was constructed have been extinguished by the acquisition. The suits have been abated without the substitution of an alternate dispute resolution mechanism to which they are entitled in the Constitutional scheme. The Constitution Bench held that acquisition of the properties under the Act affects the rights of both the communities and not merely those of the Muslim community," said Justice Bhushan.
Rejecting the contention that the acquisition of a mosque violates the right given under Articles 25 and 26 of the Constitution, Justice Bhushan said:
"The contention before the Constitution Bench was also that acquisition of a mosque violates the right given under Articles 25 and 26 of the Constitution of India. After noticing the law in the British India, prior to 1950, and the law after enforcement of the Constitution, the Constitution Bench came to the conclusion that places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violates either Article 25 or Article 26 of the Constitution."
"The Constitution Bench further held that the right to practice, profess and propagate religion guaranteed 36 under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly, this right does not extend to the right of worship at any and every place of worship. Further, it was held that protection under Articles 25 and 26 of the Constitution is to religious practice which forms an essential and integral part of the religion," he added.
Justice Bhushan also said that "Offer of prayer or worship is a religious practice, its offering at every location 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, adding, "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."
Justice Bhushan also said that every immovable property be a temple, church or mosque etc. is liable to be acquired and "a mosque does not enjoy any additional protection which is not available to religious places of worship of other religions."
While rejecting the plea to refer the case to a larger bench, Justice Bhushan said:
"Four Civil Suits were filed claiming title to the disputed structure. Parties lead elaborate evidences running in several thousands pages. The Court, after marshalling the evidences before it has decided the Civil Suits giving rise to these appeals. The issues, which have arisen in these appeals are no doubt important issues, which have to be heard and decided in these appeals. Normally appeals arising out of suits are placed before a Bench of Two Judges but looking to the importance of the matter, the present appeals have already been placed before three Judge Bench. For the aforesaid reasons, we do not agree with the submission of Shri Raju Ramachandran that these appeals be referred to Constitution Bench of Five Judges to reconsider the Constitution Bench judgment in Ismail Faruqui’s case."
Further, Justice Bhushan also batted for the fast-tracking of the Ayodhya case and said:
"The appeals which are awaiting consideration by this Court for quite a long period, be now listed in week commencing 29th October, 2018 for hearing."
Justice Abdul Nazeer reading out the dissenting judgment in the case said "Considering the issues involved and the constitutional questions, the case needs to be referred to a larger bench."
"Considering the Constitutional importance and significance of the issues involved, the following need to be referred to a larger Bench:
(a) Whether in the light of Shirur Mutt and other aforementioned cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?
(b) Whether the test for determining the essential practice is both essentiality and integrality? (c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential? (d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?"