# DR. M. ISMAIL F ARUQUI ETC v. UNION OF INDIA AND ORS

- **Citation:** [1994] Supp. 5 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1994-10-24
- **Bench:** M.N. Venkatachaliah, A.M. Ahmadi, J.S. Verma; B G.N. Ray, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-m-ismail-f-aruqui-etc-v-union-of-india-and-ors-12634
- **Pages:** 96

## Headnote

Constitution of India-Article 143 (1)-Acquisition of Certain Area at
Ayodhya Act, 1993-S.4 (3)-Constitutionality of-Whether reference made
under Article 143 (1)
is effecttve alternattve dispute resolution
mechanism-Held, (per majority) the question for determination in the suits C
not covered by the reference-Defences of the minority community,
including that of adverse possession, not included in the reference-Answer
to reference will also not answer core question in the suits-Reference by
Article 143 (1),
held, not effecttve alternattve dispute resolution
mechanism-S.4 (3), held, unconstitutional-Held, further, all pending suits
and legal proceedings stand revtved-Reference superfluous and D
unnecessary-Court declining to answer the reference.
Acquisition of Certain Area at Ayodhya Act, 1993-S. 7-Whether
provision to maintain status quo as on January 7, 1993 is slanted in favour
of the Hindu community-Litigation history, and the acquisition of a larger
area than the disputed site comprising properties of Hindus indicates that E
the rights of both the communities affected and not merely that of the
minority community-In fact, S. 7 (2) freezes the situation as on January 7,
1993 which was lesser right of worship for the Hindu devotees than that in
existence for a long time earlier-However, this is reasonable and just
since miscreants who demolished the mosque suspected to be persons
professing to practice Hindu religion-Secularism.
F
Consiitution of India-Articles 25 and 26--Whether a mosque is
immuned from acquisition-Held, (per majority) a mosque is not an
essential part of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere-Accordingly, its acquisition not
constitutionally prohibited-Status and immunity of a mosque from G
acquisition is the same and equal to that of the places of worship of other
religious including church, temple-Held, further, every immovable
property is liable to be acquired-However, acquisition of any religious
place to be made only in unusual and extraordinary situations for larger
· national p'urpose which should not result in extinction of the right to
practk;e the religion.
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SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R.
Constitution of India-Article 246 and Seventh Schedule-Acquisition
of Certain Area at Ayodhya Act, I993-Legislative competence-Pith and
substance-Act, held, (per majority) traceable to List Ill entry 42 and not to
List II entry /-"Acquisition of property" and not "public order" is pith
and substance of the statute-Article 356.
Constitution
of India-"Secularism "-Whether
acquisition
of
properties by the Act against the concept of secularism-Held, (per
majority) no step taken to arrest escalation of communal tension and to
achieve communal accord and harmony can be termed non-secular,
antisecular or against the concept of secularism-Held, further, factual
foundation for challenge to the statute as a whole and S. 7 (2) in particular
on the grounds of secularism and the rights to equality and freedom of
religion non-existent-Preamble and Articles 25 and 28-Acquisition of
Certain Area at Ayodhya Act, 1993--S. 7 (2).
Acquisition of Certain Area at Ayodhya Act, 1993--Ss.3 and 6 read
withs. 7-"Vest"-Meaning of-Limited vesting or absolute vesting-Held,
(per majority) the meaning of "vest" takes colour from the context in which
it is used and it is not necessarily the. same in every provision or contextHeld, further, while the disputed area vests with the Central Government as
statutory receiver, vesting in the Central Government of the area inT excess
of disputed area is absolute-Acquisition of disputed area for purpose of
subsequent transfer to person found, upon adjudication, to be entitled to
it~.6. held, constitutionally valid-Interpretation of Statutes-Contextual
interpretation-Legislative intent.
Acquisition of Certain Area at Ayodhya Act, 1993--Ss. 7 (2) and 2
(a)-"Area"-Meaning of-Held, (per majority) "area" ins. 7 (2) confined

## Text

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DR. M. ISMAIL F ARUQUI ETC.
A
v.
UNION OF INDIA AND ORS.
OCTOBER 24, 1994
[M.N. VENKATACHALIAH, C.J., A.M. AHMADI, J.S. VERMA;
B
G.N. RAY AND S.P. BHARUCHA, JJ.]
Constitution of India-Article 143 (1)-Acquisition of Certain Area at
Ayodhya Act, 1993-S.4 (3)-Constitutionality of-Whether reference made
under Article 143 (1)
is effecttve alternattve dispute resolution
mechanism-Held, (per majority) the question for determination in the suits C
not covered by the reference-Defences of the minority community,
including that of adverse possession, not included in the reference-Answer
to reference will also not answer core question in the suits-Reference by
Article 143 (1),
held, not effecttve alternattve dispute resolution
mechanism-S.4 (3), held, unconstitutional-Held, further, all pending suits
and legal proceedings stand revtved-Reference superfluous and D
unnecessary-Court declining to answer the reference.
Acquisition of Certain Area at Ayodhya Act, 1993-S. 7-Whether
provision to maintain status quo as on January 7, 1993 is slanted in favour
of the Hindu community-Litigation history, and the acquisition of a larger
area than the disputed site comprising properties of Hindus indicates that E
the rights of both the communities affected and not merely that of the
minority community-In fact, S. 7 (2) freezes the situation as on January 7,
1993 which was lesser right of worship for the Hindu devotees than that in
existence for a long time earlier-However, this is reasonable and just
since miscreants who demolished the mosque suspected to be persons
professing to practice Hindu religion-Secularism.
F
Consiitution of India-Articles 25 and 26--Whether a mosque is
immuned from acquisition-Held, (per majority) a mosque is not an
essential part of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere-Accordingly, its acquisition not
constitutionally prohibited-Status and immunity of a mosque from G
acquisition is the same and equal to that of the places of worship of other
religious including church, temple-Held, further, every immovable
property is liable to be acquired-However, acquisition of any religious
place to be made only in unusual and extraordinary situations for larger
· national p'urpose which should not result in extinction of the right to
practk;e the religion.
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B
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2
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R.
Constitution of India-Article 246 and Seventh Schedule-Acquisition
of Certain Area at Ayodhya Act, I993-Legislative competence-Pith and
substance-Act, held, (per majority) traceable to List Ill entry 42 and not to
List II entry /-"Acquisition of property" and not "public order" is pith
and substance of the statute-Article 356.
Constitution
of India-"Secularism "-Whether
acquisition
of
properties by the Act against the concept of secularism-Held, (per
majority) no step taken to arrest escalation of communal tension and to
achieve communal accord and harmony can be termed non-secular,
antisecular or against the concept of secularism-Held, further, factual
foundation for challenge to the statute as a whole and S. 7 (2) in particular
on the grounds of secularism and the rights to equality and freedom of
religion non-existent-Preamble and Articles 25 and 28-Acquisition of
Certain Area at Ayodhya Act, 1993--S. 7 (2).
Acquisition of Certain Area at Ayodhya Act, 1993--Ss.3 and 6 read
withs. 7-"Vest"-Meaning of-Limited vesting or absolute vesting-Held,
(per majority) the meaning of "vest" takes colour from the context in which
it is used and it is not necessarily the. same in every provision or contextHeld, further, while the disputed area vests with the Central Government as
statutory receiver, vesting in the Central Government of the area inT excess
of disputed area is absolute-Acquisition of disputed area for purpose of
subsequent transfer to person found, upon adjudication, to be entitled to
it~.6. held, constitutionally valid-Interpretation of Statutes-Contextual
interpretation-Legislative intent.
Acquisition of Certain Area at Ayodhya Act, 1993--Ss. 7 (2) and 2
(a)-"Area"-Meaning of-Held, (per majority) "area" ins. 7 (2) confined
to the site Ofl which the Ram Janam Bhumi-Babri Masjid structure stood,
while under S.2 (a) it means the entire area specified in the ScheduleInterpret':ltion of Statutes-Contextual Interpretation.
Interpretation of Statutes-Doctrine. of severability-Acquisition of
Certain Area at Ayodhya Act, 1993--S.4 (3)-Held, (per majority) S.4 (3),
severable and its unconstitutionality not an impediment to the remaining
statute being upheld as valid
Acquisition of Certain Area at Ayodhya Act, 1993--S.8-Payment of
compensation under, held, (per majority) only for property acquired
absolutely-Disputed area being taken over by the Central Government
only as a statutory receiver, held, no question of payment of compensation
as it is meant to be handed over to successful party in the suits.
M.I. FARUQUI v. U.0.1.
3
Interpretation of Statutes-Purposive construction-Held, construction A
which the language of the statute can bear and promotes the national
purpose must be preferred to a strict and literal construction tending to
promote factionalism and discord
Following the demolition of the Rama Janma Bhumi-Babri Masjid
structure at Ayodhya on 6 December, 1992, President's rule was B
proclaimed in the State of U.P. Thereafter, on 7 January, 1993, the
Acquisition of Certain Area at Ayodhya Ordinance, 1993 was
promulgated, such ordinance was later on replaced by an Act to the
same effect. Simultaneously, a Reference under Article 143 (1) of the
Constitution was made to the Supreme Court by the President of India. c
The question referred to the Court was:
"Whether a Hindu temple or any Hindu religious structure existed
prior to the construction of the Ram Janma Bhumi-Babri Masjid
(including the premises of the inner and outer courtyards of such D
structure) in the area on which the strueture stood?"
The reference was challenged as being vague and by itself not
dedsive of the real controversy. It was contended that the question was
academic, and gave no definite indication of the manner in which the
Central Government intends to act after the reference is answered and E
that it does not serve any constitutional purpose to subserve for which
the advisory jurisdiction of the court could be invoked; and that the
real purpose was to take away a place of worship of the Muslims and
give it to the Hindus. It was therefore urged that this Court should
decline to answer the reference.
F
The Solicitor-General, on behalf of the Union of India, made a
statement, inter alia, that the government would treat the finding of this
Court as final and binding, and in the light of this Court's opinion and
consistent with it, the government would make efforts to resolve the
controversy by a process of negotiations. If negotiated settlement would G
fail, government was committed to enforce a solution, consistent with
this Court's opinion. If this Court were to find that a Hindu
temple/structure did exist prior to the construction of the demolished
structure, government action will be in support of the wishes of the
Hindu community. If it were to find it in the negative, the government
action would be in support of the wishes of the Muslim community.
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SUPREME COURT REPORTS
[1994) SUPP. 5 S.C.R.
A
The focus of the challenge to the statute was on the grounds of
secularism, right to equality and right to freedom of religion. It was
contended that mosque, being a place of religious worship, is immuned
from the state's power of acquisition and that the statute is violative of
Articles 25 and 26 of the Constitution. It was further contended that
the Act led to a deprivation of the judicial remedy of adjudication
B
without providing for an alternative dispute resolution mechanism; and
that it extinguished the defences 'taken in the suits including that of
adverse possession for over 400 years. It was also contended that
Section 7 of the Act perpetuates the mischief of the demolition of the
mosque by directing the maintenance of status quo as on 7th.January,
1993 which enables the Hindus to exercise the right of worship· of some
C
kind in the disputed site keeping the Muslims totally excluded from
that area, and this discrimination may be perpetuated to any length by
the Central Government. The validity of the acquisition was also
challenged by those whose properties had been acquired though the
properties were located outside the disputed area.
D
The Central Government urged that in view of the communal
flare-up, the acquisition under the Act and the Special Reference to
decide the question addressed there in would facilitate a negoijated ,..
settlement of the problem and if it would fail, to bring out negotiated
settlement, it would take on appropriate action as would deem
expedient. It contended that the acquisition was not meant to deprive
E
the community found entitled to it, but for avoidance of escalation of
the dispute in the wake of the incident at Ayodhya on 6th December,
1992 the Act was passed and that. the Act was an essential step in that
direction.
F
Returning the Reference and disposing of the matters, this Court
HELD : (per majority) (By J.S. Verma, J. for himself MN.
Venkatacha/iah, C.J., G.N. Ray, J.)
1. The legislative competence of Parliament to enact the
Al!quisition of Certain Area at Ayodhya Act, 1993 is traceable to entry
G
42, List III. The State of U.P. having been under President's Rule a~ the
relevant time, the legislative competence of. Parliament cannof be
doubted. The pith and substance of the legisiation is 'acquisition of
property' and that falls squarely within the ambit of entry 42, List III.
Coll)peting entry set up is entry 1, List II relating to 'public order~.
"Acq•lisition of property' and not 'public order'. is the pith and
H
substance of the statute. (39- G.H)
M.I. FARUQUI v. U.0.1.
s
The amendment of entry 42, List III, and the omission of entry 33, A
List I and entry 36, List II by the Constitution (Seventh Amendment)
Act leaves no doubt that an acquisition Act like this Act falls clearly
within the ambit of entry 42, List III. (40-H, 41-A),
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga, [1952] SCR 889 and Deputy Commissioner and Collector, B
Kamrup v. Durga Nath Sharma, [1968] 1 SCR 561, referred to.
2. It is clear from the issues framed in the pending suits that the
core question for determination in the suits is not covered by the
Reference made. It also does not include therein the defences raised by
the Muslim community, including that of adverse possession of the C
disputed area for over 400 years. It is also clear that the answer to the
question referred, whatever it may be, will not lead to the answer to the
core question for determination in the pending suits and it will not, by
itself, resolve the long-standing dispute relating to the disputed area.
Also, the Central GoYernment, according to its statement, proposes to
resort to a process of negotiations, and if it fails, to adopt such course D
as it may find appropriate in the circumstances. In these circumstances,
Reference made under Article 143 (1) cannot be treated as an P-ffective
alternate dispute resolution mechanism in substitution of the pending
suits which stand abated by Section 4 (3) of the Act. This is sufficient to
invalidate Section 4 (3) of the Act. However, Section 4 (3) is severable,
and therefore its invalidity is not an impediment to the remaining E
statute being upheld as valid. (41-C-E)
Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1975] Supp. SCC 1,
referred to.
3.1. The constitutional scheme guarantees equality in the matter of F
religion to all individuals and groups irrespective of their faith
emphasising that there is no religion of the State itself. The Preamble of
the Constitution read in particular with Articles 25 and 28 emphasises
this aspect and indicates that it is in this manner the concept of
secularism embodied in the constitutional scheme as a creed adopted by
the Indian people has to be understood while understanding the G
constitutional validity of any legislation on the touchstone of the
Constitution. (49-B)
M.C. Setalvad, Patel Memorial Lectures 1985 on Secularism; Dr.
Shanker Dayal Sharma, "Secularism in the Indian Ethos", Dr. Zakir
Hussain Memorial Lecture (1989); S.R. Bommai v. Union of India, [1994] H
6
SUPREME COURT/REPORTS
(1994) SUPP. 5 S.C.R.
A
3 SCC 1 and MN. Venkatacha/iah, J., "Law in a Pluralist Society",
referred to.
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3.2. The demolition of the disputed structure on 6th December,
1992 resulted in a communal holocaust. Any step taken to arrest
escalation of the communal tension and to achieve communal harmony
can, by no stretch of argumentation, be termed non-secular much less
anti-secular or against the concept of secularism. The facts also indicate
that the acquisition of properties affects the rights of both communities
and not merely those of the Muslim community. The maintenance of
status quo as on 7th January, 1993, under Section 7 (2) confers a lesser
right of worship for the Hindu devotees than that in existence earlier
for a long time till the demolition of the disputed structure. It does not,
· therefore, have the effect of conferring or granting to the Hindu
community any further benefit thereby. The provision does not curtail
the right of worship of the Muslim community .in the disputed area,
there having been de facto no exercise of the practise or worship since
1949. (53-GH, 55-E, 56-C)
4. Subject to the protection under Articles 25 and 26 of the
Constitution, places of religious worship like mosques, churches,
temples, etc. can be acquired under the State's sovereign power of
acquisition. Such acquisition does not per se violate either Article 25 or
26 of the Constitution. (64-E)
Khajamian Wakf Estates v. State of Madras, (1971) 2 SCR 791 and
Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj etc. v.
State of Gujarat, (1975] 2 SCR 317, relied on.
The protection under Articles 25 and 26 is to religious practice
which forms an essential and integral part of the religion. A p:-actice
may be a religious practice but not an essential and integral part of that
religion. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered 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. 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 dlfferently and more reverentially. (65-~-H)
Raja Suryapa/singh v. U.P. Government, AIR (1951) All 674 (FB),
referred to.
M.I. FARUQUI v. U.O.I.
7
5. A temple, church or mosque etc. are essentially immovable A
properties and subject to the protection under Articles 25 and 26.
Every immovable property is liable to be acquired. Viewed in the
proper perspective, a mosque does not enjoy any additional protection
which is not available to religious places of worship of other religions.
(66-G)
6. 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
B
in open. Accordingly, its acquisition is not prohibited by the
Constitution of India. The status and immunity from acquisition of a
mosque is the same and equal to that of the places of worship of the C
other religions, namely church, temple, etc. Obviously, the acquisition
of any religious place is to be made only in unusual and extraordinary
situations for a larger national purpose keeping in view that such
acquisition should not result in extinction of the right to practice the
religion, if the significance of the place is as such. The right to worship D
is not at any and every place, so long as it can be practised effectively,
unless the right to worship at a particular place is itself an integral part
of that right. (67-A-D)
M. Hidayatullah, Mu/la's Principles of Mahomedan Law (19th edn.)
Section 217 and AIR (1940) PC 116, referred to.
E
7.1. The view that once a constructed mosque, it remains always a
place of worship as a mosque is not the Mahomedan law of India as
approved by Indian courts. (62-G)
Mosque known as Masjid Shahid Ganj v. Shiromani Gurudwara F
Prabhandak Committee, AIR (1938) Lah 369, relied on.
Muthialu Chetti v. Bapun Saib, ILR 2 Mad 140 and Sundram Chetti v.
Queen ILR 6 Mad 203, referred to.
7.2. The power of acquisition is the sovereign or prerogative power G
of the State to acquire property. Such power exists independent of
Article 300A of the Constitution or the earlier Article 31 which merely
i.ndicate the limitations on the power of acquisition by the 'State. (63-G)
Chiranjitlal Chowdhuri v. Union <Jj India, (1950) SCR 869 and State
ofWes(Bengalv. Subodh Gopal Bose, (1954) SCR 587, followed.
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SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R.
A
8.1. The meaning of the term 'vest' takes colour from the context in
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which it is used. It can vary in different parts of the same statute or
even the same section, depending in the context of its use. (50-G)
Maharaj Singh v. State of U.P., [1977) 1SCR1072, relied on.
8.2. It does not necessarily mean absolute vesting in every situation
and is capable of bearing the meaning of limited vesting, being limited
in title and duration. The status of the Central Government as a result
of vesting by virtue of Secti~n 3 of the Act is of a statutory receiver in
relation to the disputed area, coupled with a duty to manage and
administer the disputed area maintaining the status quo therein till the
final outcome of adjudication of the long-standing dispute relating to
the disi;uted structure at Ayodhya. Vesting in the Central Government
of the area in excess of the disputed area is, however, absolute. The
meaning of 'vest' has these different shades in Sections 3 and 6 in
relation to the two parts of the entire area acquired by the Act. (59-A-B
9. Section 6 (1) read with Section 7 (2) is an in-built indication in
the statute of the intent that acquisition of the disputed area and its
vesting in the Central Government is not absolute but for the purpose
for its subsequent transfer to the person found-entitled to it as a result
of adjudication of the dispute for the resolution of which this step is
part of the exercise. Reference under Article 143 (1) simultaneously
with issuance of the Ordinance, later replaced by the Act, also is an
indication of the legislative intent that the acquisition of the disputed
area wa·s not meant to be absolute but limited. (57-F)
10. The context in which the word 'area' is used in Section 7 (2)
indicates that its meaning is not the same as in Section 2 (a) to mean the
entire area specified in the Schedule since the words which follow
qualify its meaning confining it only to the site on which this structure,
commonly known as the Ram Janma Bhumi-Babri Masjid stood, which
site or area in undoubtedly smaller and within 'the area specified in the
Schedule'. (38-G)
11.1. Section 7 is a transitory provision, intended to maintain status
quo in the disputed area, till transfer of the property is made by the
Central Government on resolution of the dispute. In deciding whether
this provision which mandates the maintenance of status quo, and the
statute as a whole which effects acquisition, is slanted in favour of the .-,
Hindu commi.mity, it is necessary to recall the comparative user of the
··disputed area, and th~ a:ight to worship practised th~rein bj ·the two
M.I. FARUQUI v. U.0.1.
9
communities on 7th January, 1993 and for a significant period A
preceding it. Worship of the idols installed in the Ram chabutra which
stood in the disputed site within the courtyard of the disputed structure
had been performed without any objection of the Muslims even prior to
the shifting of those idols from the Ram chabutra into the disputed
structure in December 1949. By interim orders passed by the trial court
in 1950, the idols remained at the place where they were installed and B
worship of the idols there by Hindu devotees continued. This interim
order was confirmed by the High Court in 1955. The District Judge
ordered the opening of the lock placed on a grill leading to the sanctum
sanctorum of the shrine in the disputed structure on 1 February, 1986
and permitted worship of the idols there by Hindu devotees. This was
the position till 6th December, 1992. Since the demolition, worship of C
the idols by a pujari alone is continuing. On the other hand, the
Muslims have not been offering worship at any place in the disputed
site, though it may turn out at the trial of the suits that they have a
right to do so. (52, C, 53-A-F)
11.2. Moreover, even as Ayodhya is said to be of particular D
significance to the Hindus as the birth place of Rama, the mosque was
of significance to the Muslim community as an ancient mosque built by
Mir Baqi in 1526 AD. As a mosque it was just a .religious plac~ of
worship by the Muslims. This indicates the comparative significance of
the disputed site to the two communities, and also that the impact of the E
acquisition is equally on the right and interest of the Hindu community.
The narration of facts indicates that the acquisition of properties under
the Act affects the rights of both the communities and not merely those
of the Muslim community. (55-D)
12. Although the persons responsible for the demolition of the F
disputed structure were some miscreants who cannot be equated with
the entire Hindu community, and the act of vandalism cannot be
treated as an act of the entire Hindu community, confining the exercise
of the right to worship of the Hindu community enacted in Section 7 (2)
appears to be reasonable and just in view of the fact that the miscreants
who demolished the mosque are suspected to be persons professing to G
practise the Hindu religion. (55-G)
13. The justification for acquisition of a larger area, comprising in
large part of properties belonging to Hindus, is that it is necessary to
ensure that the final outcome of the adjudication is not rendered
meaningless by the existence of properties belonging to Hindus in the H
10
SUPREME COURT REPORTS
(1994] SUPP. 5 S.C.R.
A
vicinity of the disputed structure in case the Muslims are found entitled
to the disputed site. The necessity of acquiring adjacent temples or
religious buildings in view of their proximity to the disputed structure,
which forms a unique class by itself, is permissible. (54 B&E)
M Padmanabha Iyengar v. Govt. of AP, AIR (1990) AP 357 and
B
Akhara Shri Braham Buta v. State of Punjab, AIR (1990) P and H 198,
approved.
14. However, at a later stage when the exact area acquired which is
needed for achieving the professed purpose of acquisition is
determined, it would be open to the owner of any such property to
C
challenge the superfluous acquisition. It would not merely be
permissible but desirable that the superfluous area is released from
acquisition and reverted to its earlier owner. (54-G)
15. Section 8 is meant only for property acquired absolutely, other
than the disputed area, being adjacent to, and in the vicinity of the
D
disputed area. The disputed area being taken over by the Central
Government only as a statutory receiver, there is no question of
payment of compensation for the same as it is meant to be handed over
to the successful party in the suits. (60-G)
16. A construction which the language of the statute can bear and
E
promotes a larger national purpose must be preferred to a st_rict literal
construction tending to promote factionalism and discord. (61-B)
17.
The statements of the Central Government soon after the
demolition that the mosque would be rebuilt cannot limit the power of
the Parliament, and are not material for adjudging the constitutional
F
validity of the enactment. The validity of the statute has to be
determined on the touchstone of the Constitution and not on any
statements made prior to it. (56 G-H; 57 A)
18. The entire statute except Section 4 (3) thereof being found to be
valid, and the pending suits and legal proceedings wherein the dispute
G
between the two parties has to be adjudicated being revived, the
Reference made under Article 143 (1) becomes superfluous and
unnecessary. This Court therefore declines to answer the Reference
and returns the same. (67 E, F)
19. All pending suits and legal proceedings stand revived, and they
H
shall be proceeded with, and decided, in accordance with law. The
M.I. FARUQUI v. U.0.1.
11
disputed area is vested with the Central Government as a statut-ory A
receiver w!th a duty to manage and administer it in the manner
provided in the Act maintaining the status quo therein by virtue of
Section 7 (2). The Central Government would exercise its power of
vesting that property further in another authority or body or trust in
accordance with Section 6 (1) of the Act. The power of the courts in the
· pending legal proceedings to give directions to the Central Government B
as a statutory receiver would be circumscribed and limited to the
extent of the area left open by the provisions of the Act. The Central
Government would be bound to take all necessary steps to implement
the decision in the suits and other legal proceedings and to hand over
the disputed area to the party found entitled to the same on the final
adjudication made in the-suits. (67-G-H, 68-A-B)
C
White Paper on Ayodhya, referred to.
Per Minority (By S.P. Bharucha, J. for himself and A.M. Ahmadi,
J.)
1. "Area" under. Sections 2 (a) and 3 is that specified in the
Schedule. By reason of Section 4 (1), "area" includes assets and all
property, movable and immovable, and all other rights and interests in
D
or arising out of such property. By reason of Section 4 (2), the whole
bundle of property and rights vests in the Central Government freed E
and discharged from all encumbrances. The effect of Section 4 of the
Act is that the Sunni Wakf Board, which administered the mosque that
was housed in the disputed structure, and the Muslim community lose
their right to plead adverse possession of the disputed site from 1528
A.D. until 1949, if not up-to-date, considering that the idols remained in
the disputed structure only under the orders of the courts. (82-F, 87-B)
F
2. The disputes as to title survive for the purpose of compensation,
for which purpose, under Section 8, title shall have to be established not
before a court of law but before a Claims Commissioner to be
appointed by the Central Government, who is entitled to device his own
procedure. With the suits iil the Allahabad High Court abating by G
reason of Section 4 (3), the forum for adjudication of the title to the
disputed site is shifted from the courts to the Claims Commissioner. No
right of appeal or reference to a civil court is provided for with the
result that the decision of the Claims Commissioner would be final
except for a remedy under Article 226/227 of the Constitution. (87-E-F) H
12
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R.
A
3. The provisions of Sections 4 and 8 must, therefore, be held to be
arbitrary ~nd unreasonable. (87-F)
4. More importantly, the provisions of Section 4 of the Act,
inasmuch as they deprive the Sunni Wakf Board and the Muslim
community of the right to plead and establish adverse possession and
B
restrict the redress of their grievance in terms of the limited question
posed by the reference and to negotiations subsequent thereto, and the
provisions of Section 3 of the Act, which vest the whole bundle of
property and rights in the Central Government to achieve this purpose,
offend the principle of secularism, which is a part of the basic structure
of the Constitution, being slanted in favour of one religious community
C
as against another. (87-G-H)
Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225 and S.R.
Bommai v. Union of India, [1994]3 SCC 1, relied on.
The State has no religion. The State is bound to honour and to hold
D
the scales even between all religions. It may not advance the cause of
one religion to the detriment of another. (89-A)
5. The core provisions of the Act are Sections 3, 4 and 8. The other
provisions of the Act are only ancillary and incidental to Sections 3,. 4
and 8. Since the core provisions of Sections 3, 4 and 8 are
E
unconstitutional, the Act itself cannot stand. (89-B)
F
G
6. The provisions of Section 7 are referred to in support of the
finding that the Act is skewed in favour of one religion against another.
The provisio~ requires that the puja which had been begun following
the demolition of the disputed structure must continue so long as the
management of the property under the Act continues. For how long
such management is to continue and on the happening ofwhat event it
will come to an end is not indicated. Section 7 (2) therefore perpetuates
the performance of the puja on the disputed site. No account is taken of
the fact that the structure thereon had been . destroyed in a
reprehensible act, striking at the principles of secularism, democracy
and the rule of law. Nor is the fact that there is a dispute in respect of
the site on which puja is to be performed taken into account, and that
until the night of 22/23 December, 1949, when the idols were placed in
the disputed structure, the disputed structure was being used as a
mosque; and that the Muslim community has a right to offer namaz
H
therein. (89-F-G)
M.I. FARUQUI v. U.0.1.
13
White Paper on Ayodhya, referred to.
A
7. Secularism is given pride of place in the Constitution. The object
is to preserve and protect all religions, to place all religious
communities on par. When, therefore, adherents of the religion of the
majority of Indian citizens make a claim upon and assail the place of
worship of another religion and, by dint of numbers, create conditions B
that are conducive to public disorder, it is the constitutional obligation
of the State to protect that place of worship and to preserve public
order, using for the purpose such means and forces of law and order as
are required. It is impermissible under the provisions of the
Constitution for the State to acquire that place of worship to preserve
public order. To condone the acquisition of a place of worship in such C
circumstances is to efface the principle of secularism from the
Constitution. (90-F, G)
8. However, it may be added that if the title to the place of worship
is in dispute in a court of law, and public order is jeopardised, two
courses are open to the Central Government: it may apply to the D
concerned court to be appointed receiver of the place of worship, to
hold it secure pending the final adjudication of its title, or it may enact
legislation that makes it the statutory receiver pending adjudication. In
either event, the Central Government would bind itself to hand over
the place of worship to the party in whose favour title is found. (90-H.
91-A-B)
E
Commissioner, HRE v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, [1954) SCR 1005, referred to.
9. Exercise of the right of the individual to profess, practise and
propagate religion is subject to public order. Secularism is absoh.1te; the F
state may not treat religions differently on the ground that public order
requires it. This is illustrated by the principle of secularism which
illumines the provisions of Articles 15 and 16, the 'hands-off'. approach
required of the State in matters of religion by Article 27, and the
absolute terms of Article 29 (2). (91-H, 92-C)
10.1. This Court is entitled to decline to answer a question posed to
it under Article 143 if it considers that it is not proper or possible to do
so, but it must indicate its reasons. (94-B)
In re Special Reference No. 1 of 1964, (1965) 1 SCR 413 and In re
G·
the Special Courts Bill, 1978, [1979] 3 SCR 476, relied on.
H
A
B
c
D
14
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R.
10.2. The Reference. must not be answered for the following
reasons: The Act and the Reference favour one religious community
and disfavour another; the purpose of the Reference is, therefore,
opposed to secularism and is unconstitutional. Besides, the Reference
does not serve a constitutional purpose. (94-D)
Secondly, from the Reference it is clear that the Central
Government does not propose to settle the dispute in terms of the
Court's opinion, but to use _it as a springboard for negotiations.
Resolution of the dispute as a result of such negotiations cannot be said
to be a resolution of the dispute 'in terms of the said opinion'. Thirdly,
there is the aspect of evidence. Apart from the inherent inadvisability
of rendering a judicial opinion which would have to be done for the
court by experts, the opinion would be liable to the criticism of one or
both sides that it was rendered without hearing them or their evidence.
This would ordinarily be of no significance for they had chosen to stay
away, but this opinion is intended to create a public climate for
negotiations and the criticism would find the public ear, to say nothing
of the fact that it would impair th_is Court's credibility. (94-E, 95-A-B)
CIVIL ORIGINAL JURISDICTION : Transferred case (C) N\.ls. 41,
43 and 45 of 1993 etc.
From the Court's Order dated 24.9.93 of the Allahabad High Court in
E
T.P. Nos. 669-75 ofl993.
-
F
G
H
Petitioner in-person in T.C. (C) Nos. 41_and44/93.
D.P. Gupta, Solicitor General, Satish Chandra, Rajiv Dhawan, O.P.
Sharma, M.K. Banerjee, P.P. Malhotra, Jitendra Sharma, V.M. Tarkunde,
Anil B. Diwan, D.V. Sehgal, P.P. Rao, P.N. Duda, F.S. Nariman, Ashok H.
Desai, Joseph Vellapalli, B.P. Agarwal, S. Venkata Reddy, P.L. Mishra,
C.S. Ashri, R.P. Wadhwani, Arun Kumar Sinha, Zaki Ahmad Khan, Manoj
Saxena, Irshad Ahmad, Ms. Aparna Viswanathan, Mustaq Ahmad, M.M.
Kashyap, Ms. A. Subhashini, . P. Parmeshwaran, Pawan Bahal, Navin
Prakash, A. Subba Rao, Hemant Sharma, S.A. Syed, Shahid Rizvi, A.N.M.
Tayyab Khan, Ms. Deepali Talwar, R.S. Messy Verma, M. Zakikhan, M.T.
Khan, Abdul Mannan, Shakil -Ahmad Syed, Z. Jilani, M.A. Siddiqui, Ms.
Gunwant Dara, Ms. Nilofer Bhagwat, Ms. P. Gaur, R.C. Verma, R.B.
Misra, A.P. Dhamija, S.K. Jain; Siba Sankar Mishra; A. Bhattacharji, P.P.
Singh, Randhir Jain, K.C. Dua, Dharam Das, S.S. Misra, Uma Nath Singh,
Ashok Kumar:.Singh, S.K. Agnihotri, S.K. Bandyopadhyay, Pradip Kumar,
M.I. FARUQUI v. U.0.1. [J.S. VERMA, J.]
15
Sarva Mitter, M. Veerappa, S.C. Shanna, K.H. Nobin Singh, S.M. Jadhav, A
A.S. Bhasme, V.K. Beeran, ~.T. George, B.P. Agarwal, Aruneshwar
Gupta, G. Prakash, Capt. K.S. Bhati, S. Venkata Reddy, Krishna
Koundinya, Ms. Promila Choudhary, Nikhil Nayyar, T.V.S.N. Chari, N.K.
Shanna, R.C. Misra, Dr. Meera Aggarwal, S.N. Bhuyan, S.K. Nandy, Bada
Ahmed, J.B. Dadachanji, Ms. Tamali Sen Gupta, A.S. Parich, for JBD and
Co., S.N. Mehta, R.P. Singh, H.K. Puri, S.K. Puri, Deoki Nandan Agrawal, B
I.S. Goyal, Ms. Indu Malhotra, A.K. Goel, A.S. Pundir, M.A. Firoz, Sanjay
Parikh, L.K. Gupta, Ms. K. Chaudhary, Goodwill Indeever, Ms. Kusum
Chaudhary, Ms. Madhu Moolchandani, Ms. Rani Jethmalani, R.K. Mehta,
S.K. Sabharwal, C.D. Singh and Anip Sachthey for the appearing parties.
The Judgment of the Court were delivered by
J.S. VERMA, J. "We have just enough religion to make us hate, but
not enough to make us love one another."
- Jonathan Swift
Swami Vivekananda said -
"Religion is not in doctrines, in dogmas, nor in intellectual
argumentation; it is being and becoming, it is realisation."
c
D
This thought comes to mind as we contemplate the roots of this E
controversy. Genesis of this dispute is traceable to erosion of some
fundamental values of the plural commitments of our polity.
The constitutional validity of the Acquisition of Certain Area at
Ayodhya Act, 1993 (No. 33of1993) (hereinafter referred to as "Act No. 33 F
of 1993" or "the Act") and the maintainability of Special Reference No. 1
of 1993 (hereinafter referred to as "the Special Reference") made by the
President oflndia under Article 143 ( 1) of the Constitution of India are the
questions for decision herein. The background in which these questions are
to be answered is contained in the facts stated in the White Paper on
Ayodhya, February 1993, issued by the Government oflndia.
Certain undisputed facts emerging at the hearing may also have
relevance for this purpose. These questions are answered on this basis,
eschewing facts which are in the area of controversy and have yet to be
adjudicated.
G
H
16
SUPREME COURT REPORTS
[1994) SUPP. 5 S.C.R.
A BACKGROUND
The Bill was introduced in Parliament leading the above enactmen't and
the said Reference to this Court was made in the historical background set
out in the White Paper. Indeed, the two similtaneous acts are an indication
of the legislative intent for enactment of the statute, the reference being
B
made as a part of the same exercise with a view to effectuate the purpose of
the enactment. This is how, they have to be viewed.
c
D
E
F
The "Overview" at the commencement of the White Paper in Chapter 1
states thus :-
1.1. Ayodhy~ situated in the north of India is a township in
District Faizabad of Uttar Pradesh. It has long been a place
of holy pilgrimage because of its mention in the epic
Ramayana as the place of birth of Shri Ram. The structure
commonly known as Ram Janma Bhumi-Babti Masjid was
erected as a mosque by one Mir Baqi in Ayodhya in 1528
AD. It is claimed by some sectio'ns that it was built at the
site believed to be the birth-spot of Shri Ram where a
temple had st.ood earlier. This resulted in a long-standing
dispute.
1.2. The controversy entered a new phase with the placing
of idols in the disputed structure in December, 1949. The
premises were attach~d under section 145. of the Code of
Criminal Procedure. Civil suitS were filed shortly thereafter.
Interim orders in these civil suits restrained the parties from
rem_pving the idols or interfering with their worship. In
effect,. therefore, from December, 1949 till December 6,
1992 the structure had not been used as a mosque."
The movement to construct a Ram-temple at the site of the disputed
structure gathered momentum in recent ye~ which became ·a matter of
great controversy and a source of tension. This led to several parleys the
details of which are not very material for the present purpose. These parleys
G
involving the Vishva Hindu Parishad (VHP) and the All India Bahri Masjid
Action Committee (AIBMAC), however, failed to resolve the dispute. A
new dimension was added to the campaign for construction of the temple
with the formation of the Government in Uttar Pradesh in June 1991 by the
Bhartiya Janata Party (BJP) which declared its commitment to the
-
construction of the temple and took certain steps like the acquisition of land
H
adjoining. the disputed structure while leaving out the disputed structure
M.I. FARUQUI v. U.0.1. [J.S. VERMA, J.)
17
itself from the acquisition. The focus of the temple construction movement A
from October 1991 was to start construction of the temple by way of 'karsewa' on the land acquired . by the Government of Uttar Pradesh while
leaving the disputed structure intact. This attempt did not succeed and there
was litigation in the Allahabad High Court as well as in this Court. There
was a call for resumption of kar-sewa from 6th December, 1992 and the
announcement made by the organisers was for a symbolic kar-sewa without B
violation of the court orders including those made in the proceedings
pending in this Court. In spite of initial reports from Ayodhya on 6th
December, 1992 indicating an air of normalcy, around mid-day a crowd
addressed by leaders of BJP, VHP, etc. climbed the Ram Janma BhumiBabri Masjid (RJM-BM) structure and started damaging the domes. Within
a short time, the entire structure was demolished and razed to the ground.