Is the refusal to refer Ismail Faruqui judgment to a larger bench a victory or defeat for Muslims?

[dropcap]O[/dropcap]n September 27, 2018 the Supreme Court gave its verdict upon the contentious issue whether the Constitution Bench judgment in Dr. M. Ismail Faruqui Vs. Union of India & Ors required reconsideration by a larger bench in light of the phrase contained in paragraph 82 of the same, which read as under:

"82. … 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."

 As a result, the very moment that the majority opinion was pronounced by Justice Ashok Bhushan, speaking for himself and the Chief Justice, refusing to refer Ismail Faruqui (supra) to a larger bench, proponents of both the parties started associating it with victory or defeat. The great run on the Twitterverse started. While some claimed that the Supreme Court had declared that a mosque is not essential to Islam, there were others who perceived the judgment as the Supreme Court refusing to enter into the controversy of essentiality. Amidst politics, hurried news debates and live tweeting, the essence and correct appraisal of the judgment given by the Supreme Court on Thursday, seems already lost.

It is for this precise reason that Justice Ashok Bhushan, realising the sensitivity of the issue, at the very threshold thought fit to put a caveat to avoid any misconstrued reading and interpretation of the judgment, for in the words of Lord Denning, as quoted by Justice Bhushan himself, "even a single significant detail may alter the entire aspect". Thus, it is not only appropriate to understand completely, the judgment at hand, but also to understand what purpose does it serve in its entirety and the correct understanding thereof.

Ismail Faruqui: the real What and the real Why

It is necessary to understand firstly, what the challenge before the Supreme Court in the Ismail Faruqui case was and it is only then that one can completely understand the judgment given by Justice Bhushan in the judgment dated September 27, 2018.

Post demolition of the Babri Masjid on December 6, 1992, an ordinance was issued on January 7, 1993 — namely, "Acquisition of Certain Area at Ayodhya Ordinance" for acquisition of 67.703 acres of land in the Ram Janma Bhumi-Babri Masjid complex, which was later replaced by the Acquisition of Certain Area at Ayodhya Act, 1993. The petitioners in Ismail Faruqui had challenged the validity of the 1993 Act. One of the contentions of the petitioner was based on the argument that the acquisition of a mosque was impermissible in law inasmuch as it violates the constitutional rights of the Muslim community under Articles 25 and 26 of the Constitution of India, which guarantee the freedom of conscience and the freedom of practice of religion. The force of the argument was that since mosque is an integral part of Islam, the same holds the constitutional protection envisaged under Articles 25 and 26. This has been best captured in para 17 of the Constitution Bench judgment in Ismail Faruqui (Supra):

"17. Broadly stated, the focus of challenge to the statute as a whole is on the grounds of secularism, right to equality and right to freedom of religion. Challenge to the acquisition of the area in excess of the disputed area is in addition on the ground that the acquisition was unnecessary being unrelated to the dispute pertaining to the small disputed area within it. A larger argument advanced on behalf of some of the parties who have assailed the act with considerable vehemence is that a mosque being a place of religious worship by the Muslims, independently of whether the acquisition did affect the right to practise religion, is wholly immune from the State's power of acquisition and the statute is, therefore, unconstitutional as violative of Articles 25 and 26 of the Constitution of India for this reason alone."

The Constitution Bench negated this argument and held that places of worship, be it of any religion, can be acquired and upheld the validity of the Act except that of Section 4(3) of the Act. Paragraph 82 of the judgment, under challenge in the present proceedings, was in the context of the above claim of the petitioners.

M Siddiq now key to open Ismail Faruqi

The present judgment of M Siddiq is with regard to the apprehensions raised by the petitioners vis-à-vis paras 78-82 of the judgment in Ismail Faruqui, particularly, the phrase under para 82.

The majority verdict in M. Siddiq (D) Vs. Mahant Suresh Das & Ors. has in effect read down the Ismail Faruqi while addressing the apprehensions raised by the petitioners qua the above phrase in para 82 of the judgment. The judgment by Justice Bhushan has clarified that the impugned observations have to be seen in context of the challenge and issues raised before the Court in Ismail Faruqui and not divorced therefrom.

It was in regard to the claim of the petitioners that led to the aforesaid observation and is limited to that extent. This reading down of the observations in Ismail Faruqui will consequently have implications in the present batch of appeals challenging the 2010 judgment passed by the Allahabad High Court insofar as the present appeals stand isolated from the observations made in Ismail Faruqui.

The critical apprehensions of the petitioners in the present proceedings before the Supreme Court were that the aforesaid observations in Ismail Faruqui were detrimental to the rights of the Muslim community and in violation of the constitutional principles of equality and secularism and that the Constitution Bench had entered into deciding the question of essentiality without a detailed and thorough analysis of the religious tenets and principles. Another argument that was advanced by the petitioners was that the 2010 judgment of the High Court has heavily relied upon the aforesaid observations of the Constitution Bench in Ismail Faruqui and due to these reasons, inter alia, the judgment in Ismail Faruqui should be referred to a larger bench for reconsideration.

The judgment in M Siddiq (supra) has cleared away these apprehensions and the objections raised by the petitioners with regard to the observations made by the Constitution Bench in Ismail Faruqui and has interpreted such observations to have been made only with regard to the claim of the petitioners in Ismail Faruqui, that the acquisition of a Mosque was impermissible under law. It was due to this challenge, Justice Bhushan explains, that the constitution Bench in Ismail Faruqui had made the observation that a mosque does not enjoy any such immunity from acquisition and the observations made under para 82 of Faruqui was limited to that extent only. This is amply reflected by the last lines in para 59 of the Justice Bhushan's verdict, where it is made clear that such observations "need not be read broadly to hold that a mosque can never be an essential part of the practice of the religion of Islam". Nothing more, nothing less.

Way forward for the main case

Thus, the majority verdict in M Siddiq acts as a key to unlocking the judgment in Ismail Faruqui. It has firstly, in effect read down the observations made in Ismail Faruqui in the context of acquisition only and has limited its interpretation only to that extent by holding that such observations are to be read in context of acquisition and are not to be read broadly to hold that a mosque can never be an essential part of Islam.

Secondly, as a consequent effect, the apprehensions of the petitioners that the said observations are discriminatory inasmuch as they seek to compare the rights of two religions, it has been now made clear that such comparison was in the context of indicating that a mosque, like religious places of any other religion, can be acquired and is not immune from acquisition, as claimed by the petitioners in Ismail Faruqui.

Thirdly, by virtue of the aforesaid judgment and the clarity given to the observations made in Ismail Faruqui, any observations made by the Allahabad High Court, relying upon the Ismail Faruquijudgment, beyond the scope of acquisition, will now be affected and will be nugatory. As far as the question of essentiality doctrine is concerned, it also has to be seen in light of what was the challenge before the Constitution Bench in Ismail Faruqui and whether the Court was asked by the petitioners to enter into the question of essentiality and essential practices.

Since the challenge in Ismail Faruqui was based upon the argument, inter alia, that a mosque cannot be acquired and the observations made by the Constitution Bench were in the context of acquisition only and are not to be read broadly, nor will have any effect whatsoever upon the present appeals against the 2010 High Court verdict, the apprehensions of the Muslim side, upon whom reference of Ismail Faruqui to a larger bench was sought, stands addressed to a large extent.