Babri Masjid and the Supreme Court: a fresh start

A long-standing issue regarding the reconsideration of the 1994 Supreme Court judgment that had opined that a mosque was not integral to practice Islam was finally concluded by the Supreme Court on Thursday. In a 153-page order, a three-judge bench of the Supreme Court led by the outgoing Chief Justice of India Justice Dipak Misra stated that the observations made in the 1994 case of Ismail Faruqui vs Union of India were "made in context of land acquisition" and were "not relevant" to decide the Babri Masjid dispute.

Fourteen cross-appeals filed in the top court on the Babri Masjid issue have been pending for over 8 years now and have seen little development since the 2010 Allahabad High Court verdict that had divided the disputed land in Ayodhya into three equal parts - one each for the Nirmohi Akhara, the Ram Lalla and the Sunni Waqf Board. Today's verdict becomes even more significant in light of the slow progress that this decade-long case has seen. 

Read: Ayodhya Verdict: Supreme Court Rejects Plea To Refer The Case To A Larger Bench, Says 'Matter Will Only Be Treated As A Land Issue'

In December last year when the Supreme Court was on the verge of allowing the final arguments in the Babri Masjid case to finally begin, Senior Advocate Rajeev Dhawan appearing for the Sunni Waqf Board submitted that the Ismail Faruqui judgment needed reconsideration and ought to be referred to a larger bench before the Babri Masjid case could be heard. Extensive arguments were made by all parties supporting and refuting Rajeev Dhawan's claim before the Supreme Court 3-judge bench reserved the verdict on the issue.

In a 2:1 split verdict, the Supreme Court today said that the statement made in the 1994 judgment that a mosque was not an essential part for the practice of a religion is a statement made in “specific context and reference”.

The context the Supreme Court refers to here, is on the issue of whether or not a mosque could be acquired by the State or was there an immunity given to the mosque from State acquisition on the basis that it was a place of worship.

Read: Ayodhya Verdict | Here’s All That Was Said In Supreme Court’s 2:1 Judgment

Justice Ashok Bhushan while penning down the judgment on behalf of himself and the Chief Justice said that a person’s right to worship would be said to be violated only when the place of an offering of prayers had a “particular significance”.

The two of three judges went on to clarify that in the 1994 judgment where the Supreme Court had said that “A mosque is not an essential part of the practice of the religion of Islam and namaz by Muslims can be offered anywhere, even in the open”, they had immediately followed up with the sentence “Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India”. This had amply clarified that the 1994 judgment was confined to the question of immunity from the acquisition of a mosque and that the first sentence could not be read in isolation from the sentence that immediately followed.

Interestingly enough, the bench also went on to note that despite the 1994 judgment stating that right to worship would not be violated unless the place was of some particular significance, no arguments were made by the Muslim bodies claiming that the site of the Babri Masjid was of any “particular significance” to them. Rajeev Dhawan on the contrary argued that all mosques, all churches and all temples were equally significant for the communities practicing those religions. He questioned the very wording of the 1994 judgment stating that “the concept that some places are of some particular significance is itself faulty”.

The majority in the bench, however, refused to accept these arguments of the senior counsel. The dissenting voice was that of Justice Abdul Nazeer.

When the list of the upcoming cases was uploaded on the Supreme Court website, there was one unanimous judgment set to be pronounced by the 3-judge bench today. Around 1:15 pm, roughly 45 minutes before the country was expecting a unanimous judgment, a notice was issued by the Supreme Court Assistant Registrar saying that there were two separate opinions that will be pronounced. One by Justice Ashok Bhushan and the other by Justice Abdul Nazeer. Sources say that the Registry had made a “mistake” while publishing the causelist the previous evening. Hence, Justice Abdul Nazeer’s dissenting verdict was a last minute twist in what otherwise seemed like, a straightforward pronouncement.

Justice Nazeer, who was interestingly also the dissenting voice when the Supreme Court had scrapped the practice of instant triple talaq, stated that the Ismail Faruqui judgment was passed without “comprehensive examination”. He also went on to say that what constituted to be an integral part of a religion had to be examined on the basis of the doctrines, tenets and beliefs of that religion itself.

Justice Nazeer then went on to say that the Babri Masjid case at this point had been “permeated” by the Ismail Faruqui judgment and went on to question whether the Constitution allowed this “comparative” significance of faiths to be undertaken by the Courts.

Though significant, Justice Nazeer’s opinion now holds little importance in light of the larger issue before the top court today. The Babri Masjid hearing has been put back on track with the Apex Court ready to hear the matter from the week commencing from October 29. With the retirement of the Chief Justice of India less than a week away, a fresh start, both for the Supreme Court and the Babri Masjid case is now all set to begin.