Fuzail Ayyubi

| @Fuzail_Ayyubi | September 27,2018

Hai Raam ke vajūd pe Hindostāñ ko naaz

Ahl-e-nazar samajhte haiñ unhe Imām-e-hind

The captioned couplet of the legendary poet Allama Iqbal conveys the significance and importance of Lord Rama in Indian sub-continent. While Iqbal states that the entire nation feels proud of the existence of Lord Rama, in the second line he also indicates that it is only the intelligentsia of the society that truly understands the reign and message of Lord Rama.

On July 20, 2018, after nine hearings of vociferous and heated arguments stretching from March 14, 2018, the Hon’ble Supreme Court of India, the repository of the best amongst the intelligentsia, reserved its verdict on the issue as to whether the 1994 verdict of theirs in Dr. M. Ismail Faruqui Vs. Union of India [(1994) 6 SCC 360] needs a reconsideration or not.

Ismail Faruqui Verdict

It was in the aftermath of the Babri Masjid demolition in 1992 that the Government of India enacted the Acquisition of Certain Area at Ayodhya Act, 1993. Wherein certain provisions were challenged before the Supreme Court. On October 24, 1994, a five-judge bench of the Court decided the petitions upholding the validity of the 1993 Act and vested the disputed area in the hands of the Central Government as a statutory receiver.

However, the verdict in Ismail Faruqui laid down a perilous proposition in Paragraph 82, by holding that “there can be no reason to hold that a mosque has a unique or special status” and going by this reasoning, allowed Hindus to continue their worship while disallowing and refusing to accept that the Mosque held any importance whatsoever for the Muslim faith.

The Supreme Court adopted a comparative approach between the two religions, in deciding the importance of mosques vis-à-vis temples in Islam and Hinduism respectively

In doing so,the Supreme Court adopted a comparative approach between the two religions, in deciding the importance of mosques vis-à-vis temples in Islam and Hinduism respectively. This approach was not only detrimental to the religious sentiments of the Muslims but was also an erroneous finding with regard to the right to practice religion as enshrined in the Constitution of India.

Arguments raised before Supreme Court

On March 14, 2018, when batch of appeals and several impleadment/intervention applications arising out of the 2010 judgment of the Allahabad High Court in the Ram Janmabhoomi Babri Masjid case came up before the Supreme Court, bench headed by the Chief Justice of India Justice Dipak Misra initiated the proceedings with the question as to whether the verdict in Ismail Faruqui required reconsideration by a larger bench since it had a bearing on the main case.

Firstly, that the idols were placed in the disputed premises through an illegal act of trespass and secondly that the 1986 order of opening the locks was on the plea of such a person who was not a party and should not have been entertained

Dr. Rajeev Dhawan, arguing for some Muslim parties in the case commenced his arguments by stating that the judgment in Ismail Faruqui has failed to take note of the two facts. Firstly, that the idols were placed in the disputed premises through an illegal act of trespass and secondly that the 1986 order of opening the locks was on the plea of such a person who was not a party and should not have been entertained. His main contentions were focused on paras 75-82 of the judgment in Ismail Faruqui as the same had held that only a mosque of a particular significance can be considered an integral part of the religion.

Dhawan, had submitted that every temple, every mosque and every church is of particular significance to the respective religions and the verdict in Ismail Faruqui is flawed in as much as one party was deprived of their right while the other was allowed to continue worship despite illegalities

Dr. Dhawan, had submitted that every temple, every mosque and every church is of particular significance to the respective religions and the verdict in Ismail Faruqui is flawed in as much as one party was deprived of their right while the other was allowed to continue worship despite illegalities. Reconsideration of the Ismail Faruqui’s case is necessary by a larger bench not only in light of a number of decisions of the Supreme Court that were overlooked by the 5-Judges Bench in arriving at such a mistaken conclusion but also because of the unbridled principle of equality and the freedom to practice one’s religion as enshrined in the Constitution of India.

In the arguments that were placed before the Court Ld. Sr. Counsel Dr. Dhawan stressed upon the aforesaid contentions while relying upon several decisions of the Supreme Court in this regard. Reference was made to the observations made by Chief Justice B. N. Kripal in TMA Pai Foundation Case [(2002) 8 SCC 481] at paras 158-161 of the judgment which refer to the vast variety of beliefs, religions, practices, tribes and languages etc. as portraying the essence of secularism in preserving all such beliefs with equal protection.

Another factor, in this regard is the provision as contained under Article 26 of the Indian Constitution which confers upon all the religious denominations, the right to manage their own affairs and to acquire, own and administer property subject to regulation by laws in the interests of public order, health and morality only. The same was stressed upon by the Apex Court in a number of decisions including the famous Sri Shirur Mutt case [AIR 1954 SC 282]. The verdict in Ismail Faruqui had the effect of negating these rights of the Muslims who have been denied the right to practice their religion while in a “comparative analysis” the same right was upheld for the Hindus, who were allowed to continue worship.

Ismail Faruqui judgment had also failed to take into account a number of other decisions of the Supreme Court which dictate that by free exercise of religion meant the performance of outward acts in pursuance of religious belief and in that vein it was contended by the Ld. Sr. Adv. that the outward expression of the Islamic faith is the mosque and each such mosque holds equal value and is the integral part of Islam

Apart from the reasons aforesaid, the Ismail Faruqui judgment had also failed to take into account a number of other decisions of the Supreme Court which dictate that by free exercise of religion meant the performance of outward acts in pursuance of religious belief and in that vein it was contended by the Ld. Sr. Adv. that the outward expression of the Islamic faith is the mosque and each such mosque holds equal value and is the integral part of Islam. Not only mosques, it was contended, every temple, every church, and every other place of worship held sacred by any particular religion is an essential and integral part of that religion.

it is the principle of secularism itself which has been negated in the Ismail Faruqui verdict of the Supreme Court and thus requires reconsideration by a larger bench of this Court

It was contended by the other side that the present matter was an ordinary civil suit and under Section 145(3) of the Indian Constitution, only matters pertaining to a substantial question as to interpretation of the constitution can be referred to a larger bench. In reply to this contention, a series of cases were cited where the Supreme Court had referred issues unrelated to the constitution for consideration by a larger bench and that apart, it is the principle of secularism itself which has been negated in the Ismail Faruqui verdict of the Supreme Court and thus requires reconsideration by a larger bench of this Court. 

What’s next?

After lengthy and sometimes heated arguments on the issue of reconsideration of Ismail Faruqui and the question as to whether religious rights of one religion can be compared with that of another the Bench comprising of Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice Abdul Nazeer had reserved its verdict on July 20, 2018 which will be pronounced today.

It is yet to be seen whether the Hon’ble Supreme Court, represented by the select intelligentsia of the country are convinced enough to walk the path of secularism in a way that ensures equal treatment to all

It is yet to be seen whether the Hon’ble Supreme Court, represented by the select intelligentsia of the country are convinced enough to walk the path of secularism in a way that ensures equal treatment to all, which is not only in line with the constitutional principles, a number of judgments by the Supreme Court itself but also the ideals of governance as displayed by the reign and message of Lord Rama.

 

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[…] What Is Ismail Faruqui Verdict Of 1994? (courtesy: theleaflet.in) […]

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