2018 Supreme(SC) 952

SUPREME COURT OF INDIA
DIPAK MISRA, CJI., ASHOK BHUSHAN, S. ABDUL NAZEER, JJ.
M. SIDDIQ (D) THR. LRS. – APPELLANT(S)
VERSUS
MAHANT SURESH DAS AND OTHERS ETC. – RESPONDENT(S)
CIVIL APPEAL NOS. 10866­10867 OF 2010 WITH C.A. No. 4768­4771/2011, C.A. No. 2636/2011, C.A. No. 821/2011, C.A. No. 4739/2011, C.A. No. 4905­4908/2011, C.A. No. 2215/2011, C.A. No. 4740/2011, C.A. No. 2894/2011, C.A. No. 6965/2011, C.A. No. 4192/2011, C.A. No. 5498/2011, C.A. No. 7226/2011, C.A. No. 8096/2011, C.A.No. ________ of 2018 (@ Diary No. 22744/2017)
Decided On : 27-09-2018

IMPORTANT POINTS
Majority view –
Observations as made by the Constitution Bench in paragraphs 78 and 82 which have been questioned by the petitioners were observations made in reference to acquisition of place of worship and has to confine to the issue of acquisition of place of worship only.
The observations in Ismail Faruqui's case, considered objectionable by appellants, were made in context of land acquisition. They were neither relevant for deciding the suits nor relevant for deciding these appeals.
Ismail Faruqui does not need reconsideration – no need to refer to larger Bench.
Dissenting view –
Matter be referred to larger Bench.

Headnote:Per Ashok Bhushan, J (Majority view – for himself and Dipak Misra, CJI)

       (a) Interpretation of judgment – Reading a judgment – Observations in a judgment – First, the context of the observations should be found out – Then only it can be decided if the judgment needs consideration – Contextual interpretation. (Para 22)

       1901 AC 495 – Referred

       (b) Interpretation of judgment – Precedent – A judgment is not interpreted as a statute and should be followed if facts are identical to the instant case – Even a single significant detail may alter the entire aspect – Broad resemblance to another case is not at all decisive – Instantly (Para 23, 24, 26)

       (2008) 1 SCC 494; (2003) 6 SCC 697; (2006) 7 SCC 735 – Relied upon

       © Interpretation of judgment – Ratio decidendi – Ratio decidendi of a judgment can be found out only by reading the context of the whole judgment – It cannot be found by reading a line here and there from the judgment – Ismail Faruqui case – Five transferred cases, two writ petitions filed under Article 32 and Special Reference No.1 of 1993 were considered by the Constitution Bench – The Special Reference No.1 of 1993 made by the President of India under Article 143 was respectfully declined to be answered – The challenge in the writ petitions under Article 32 and transferred cases was to Acquisition of Certain Area at Ayodhya Act, 1993 enacted to provide for the acquisition of certain area at Ayodhya and for matters connected therewith or incidental thereto – The discussion and all observations in Ismail Faruqui were in the context of immunity from acquisition of a mosque – It was held that places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution – It was further held that the right to practice, profess and propagate religion guaranteed under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property – This right does not extend to the right of worship at any and every place of worship – Court held that offer of prayer or worship is a religious practice, its offering at every location 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. (Para 34, 36, 37, 39,40)

       (d) Constitution of India – Articles 25 and 26 – Question as to whether particular religious practice is essential or integral part of the religion – Requires consideration of the doctrine, tenets and beliefs of the religion – The statement “a mosque is not essential part of the practice of religion…..” in Ismail Farooqui – Followed immediately by “Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India” – Obviously the sentence was confined to the question of immunity from acquisition of a mosque – First sentence cannot be read in isolation of the second sentence which immediately followed the first sentence – The observation need not be read broadly to hold that a mosque can never be an essential part of the practice of the religion of Islam. (Para 54, 55, 56, 58, 59)

       AIR 1954 SC 282; AIR 1954 SC 388; AIR 1954 SC 400; AIR 1958 SC 255; AIR 1958 SC 731; AIR 1962 SC 853; AIR 1963 SC 1638 – Relied upon

       (e) Constitution of India – Article 25 – Religious place of particular significance – No religious place is immune from acquisition under eminent domain of the State – However when acquisition of such a place results in extinction of right to practice religion, it cannot be acquired – Such exception carved out to protect constitutional right guaranteed under Article 25 – Even though the Ram Janma BhoomiBabri Masjid is claimed to be place of particular significance by Hindus, it has lost all significance in view of upholding of the acquisition under Act 1993. (Para 61, 62)

       (1994) 6 SCC 360 – Relied upon

       (f) Code of Civil Procedure, 1908 – Section 11, Explanation VI – Res judicata – Issues framed in suits giving rise to present appeals – Different than those raised in Ismail – Present issues cannot be said to be directly and substantially in issue in Ismail Faruqui’s case – Held Ismail Faruqui does not operate a res judicata for present appeals. (Para 72)

       (1964) 2 SCR 647; AIR 1965 SC 1153; AIR 1961 SC 1457; AIR 1966 SC 1332; (2000) 3 SCC 350; (2003) 2 SCC 464 – Relied upon

       (g) Administration of justice – Mere mentioning of certain facts in a judgment does not mean that those facts have been adjudicate – More so when those facts were neither in issue before the Court nor had been adjudicated. (Para 90)

       (h) Interpretation of judgment – The issues raised are yet to be adjudicated – Mere mentioning these issues in Ismail Faruqui – Not enough for reconsideration of Ismail Faruqui . (Para 95)

       (i) Constitution of India – Article 145(3), and Proviso – Reference to Constitution Bench – Minimum number of judges or purpose of deciding a case involving interpretation of the Constitution or hearing any reference under article 143 – Shall be five – Lesser Bench may refer an appeal to Constitution Bench if the appeal involves interpretation of Constitution and it is necessary for adjudication of the appeal – Normally appeals are decided by Bench of two Judges – Looking to importance of present appeal it is already assigned to three Judge Bench – No need to refer it to Constitution Bench of five Judges. (Para 98, 99, 112)

       AIR 1959 SC 1315; AIR 1954 SC 229; AIR 1965 SC 682; (2003) 4 SCC 399; (2002) 5 SCC 294; (2005) 2 SCC 673 – Relied upon

       W.P. © No. 222 of 2018; (2017) 9 SCC 1; (1995) 5 SCC 338; (1985) 3 SCC 620; 1988 (Supp.) SCC 522; AIR 1958 SC 1036; (1996) 7 SCC 577; (2006) 5 SCC 662; (1994) 6 SCC 751; (1994) 6 SCC 752; (2003) 2 SCC 576; (2003) 4 SCC 1; 1980 (Supp.) SCC 340; (1984) 3 SCC 696; (1989) 2 SCC 504; 1995 Supp. (4) SCC 81; 1991 Supp (1) SCC 600; (1986) 3 SCC 156; (2002) 10 SCC 686; (2008) 17 SCC 650; (2014) 3 SCC 304; (2014) 8 SCC 751; (2014) 12 SCC 618; (2017) 1 SCC 388 – Distinguished

       Per S. Abdul Nazzer, J. (Dissenting)

       (j) Constitution of India – Articles 25 and 26 – What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrine, tenets and beliefs of that religion itself – Conclusion in Ismail Faruqui that "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" – Held, arrived at without undertaking comprehensive examination. (Para 12, 19, 21)

       1954 SCR 1005; 1954 SCR 1055; 1958 SCR 895; (1962) 1 SCR 383; 1962 Supp (2) SCR 496; (1964) 1 SCR 561; (1997) 4 SCC 606 – Relied upon

       (k) Constitution of India – Articles 25 and 26 – Questionable observations in Ismail Faruqui permeating and affecting the impugned judgment – Held, Ismail Faruqui also needs to be resolved as a matter of constitutional significance and brought in line with authoritative pronouncements in Shirur Mutt and other decisions. (Para 27)

       1954 SCR 1005 – Relied upon

       (l) Constitution of India – Article 145(3), and Proviso – Reference to Constitution Bench – Court had been referring important mattrers such as thenpresent to Constitution Bench – Held, matter be referred to larger Bench for consideration odf following questions – (a) Whether in the light of Shirur Mutt and other cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?

       (b) Whether the test for determining the essential practice is both essentiality and integrality? © Does Article 25 only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential? And (d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken? (Para 32)

       Writ Petition (Civil) No. 222 of 2018; Civil Appeal No. 5820 of 2018; Writ Petition (Civil) No. 286 of 2017 – Relied upon

       Facts of the case:

       This case relates to the Ram janmabhumi dispute at Ayodhya.

       Decision in Dr. M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360 has been referred for reconsideration in so far as it decided that “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.”

       Finding of the Court:

       Majority view –

       Observations as made by the Constitution Bench in paragraphs 78 and 82 which have been questioned by the petitioners were observations made in reference to acquisition of place of worship and has to confine to the issue of acquisition of place of worship only.

       The observations in Ismail Faruqui's case, considered objectionable by appellants, were made in context of land acquisition. They were neither relevant for deciding the suits nor relevant for deciding these appeals.

       Ismail Faruqui does not need reconsideration – no need to refer to larger Bench.

       Dissenting view –

       Matter be referred to larger Bench.

       Result: Prayer for referring Ismail Faruqui to larger Bench rejected.