Division Bench Judgment in Plain English

Judgment in Plain English

Today 27th September at 2pm, the three-judge Bench in a split of 2:1 verdict held that Ismail Faruqui 1994 does not require reconsideration by a larger five-judge Constitution Bench. Ismail Faruqui, 1994 upheld that in questions of State land acquisitions mosques are not an essential feature of Islam. The matter will now be resolved as a land title dispute by a three-judge Bench.

 

Bhushan J, on behalf of CJI Misra and himself, wrote the majority opinion. Nazeer J wrote a dissenting opinion.

 

Majority Opinion

Bhushan J, on behalf of CJI Misra and himself, declared that a three-judge Bench will hear the Ayodhya Title Dispute. Thereby, he rejected referring the matter to a five-judge Constitution Bench.

 

Bhushan J held that the Supreme Court need not review its 1994 judgment in Faruqui. In Faruqui, a three-judge Bench held that the State could acquire land on which a mosque is situated. Faruqui established that a mosque is not an ‘essential part of the practice of Islam‘. Bhushan emphashised that Faruqui was made in the context of land acquisition and, hence, should not be viewed as a governing factor for the purpose of deciding all suits. Bhushan concluded that the ‘questionable observations’ in Faruqui are not relevant in this case, which he emphasised is a title dispute, not a land acquisition matter.

 

Bhushan J dismissed the res judicata motion. When res judicata is invoked, a Court dimisses a case on the grounds that it has already been judged.

 

Justice Nazeer’s Dissent

Nazeer J held that the current matter must be referred to a Constitution Bench. He held that the current Ayodhya Title Dispute is dependent on the conclusions in Faruqui. Further, he held that Faruqui requires a review by a Constiution Bench.

 

First, he established that Faruqui requires review. He stated that it used inadequate means to reach its conclusion on the question of whether a mosque is an essential feature of Islam. He criticized Faruqui for reaching its conclusion without undergoing a detailed examination of the tenets, beliefs and practices of Islam. He referred to Shirur Mutt, where the Supreme Court established the test for establishing whether a practice is essential to a particular faith. He said that Faruqui must be brought in conformity with Shirur Mutt. He concluded that Faruqui requires review.

 

Next, he established that a Constitution Bench must reveiw Faruqui. He emphasised that there exists a precedent for forming Constitution Benches to answer questions pertaining to whether a practice is an essential religious practice. He quoted the Supreme Court’s recent referral order in Sunita Tiwari (Female Genital Mutilation). The reference order stated that the question of whether a religious practice is an essential religious practice must be decided by a detailed examination of the tenets, beliefs and practices of the faith in question. The Court referred Sunita Tiwari to a five-judge Constitution Bench. Nazeer J concluded that this case must also be referred to a Constitution Bench.

 

Nazeer J did agree with the majority opinion on the matter of res judicata. He also dismissed the res judicata motion.

 

The case has been listed for 29th October.