TaxTMI 
TaxTMI 
1994 (10) TMI 305
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....y the President of India 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 of India. 4. 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. BACKGROUND 5. The Bill was introduced in Parliament leading to the above enactment and the said Reference to this Court was made in the historical background set out in the White Paper. Indeed, the two simultaneous acts are an indication of the legislative intent for enactment of the statute, the reference being 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. 6. The "Overview" at the commencement of the White Paper in Chapter 1 states thus:- 1.1 Ayodhya situated in the north of India is a township in District Faizabad of Uttar Pradesh. It has long been a place of holy pilgrimage b....
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....climbed the Ram Janma Bhumi-Babri Masjid (RJB-BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of "national shame". What was demolished was not merely an ancient structure; but "the faith of the minorities in the sense of justice and fair play of majority. It shook their faith in the rule of law and constitutional processes. A five hundred year old structure which was defenceless and whose safety was a sacred trust in the hands of the State Government was demolished. 8. After referring to the details on this tragedy, the White Paper in Chapter 1 on "OVERVIEW" concludes thus :- 1.35. The demolition of the Ram Janma Bhoomi-Babri Masjid structure at Ayodhya on 6th December, 1992 was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and the rule of law enshrined in our Constitution. In a move as sudden as it was shameful, a few thousand people managed to outrage the sentiments of millions of Indians of all communities who have reacted to this incident with anguish and dismay....
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.... title to the disputed structure by the Sunni Central Wakf Board. In 1989, Deoki Nandan Agrawal, as the next friend of the Deity filed a title suit in respect of the disputed structure. In 1989, the aforementioned suits were transferred to the Allahabad High Court and were ordered to be heard together. On 14th August, 1989. the High Court ordered the maintenance of status quo in respect of the disputed structure (Appendix-I to the White Paper). As earlier mentioned, it is stated in para 1.2 of the White Paper that: interim orders in these civil suits restrained the parties from removing 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. 11. Prior to December 1949 when the idols were shifted into the disputed structure from the Ram-chabutra, worship by Hindu devotees at the Ram-chabutra for a long time without any objection from Muslims is also beyond controversy. A controversy, however, is raised about use of the disputed structure as a mosque from 1934 to December 1949. One version is that after some disturbances in 1934, the use of the disputed structure as a mosque ....
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....also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily handover the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and AIBMAC. XXX XXX XXX 2.12 The historical debate has thus remained inconclusive although much progress has been made in identifying the areas of agreement and difference. Conclusive findings can be obtained only by way of reference to a competent authority. However, as brought out elsewhere in this Paper the negotiations were disrupted at a crucial phase. Now, the entire evidence has disappeared along with the disputed structure. It is tragic and ironical that the Ram-chabutra and Kaushalya Rasoi, which continued as places of worship during periods of Muslim and British rule have disappeared along with the RJB-BM structure at the hands of people professing to be 'devotees' of Lord Ram. PLACING OF IDOLS IN THE DISPUTED STRUCTURE 2.13 As has been mentioned above, Hindu structures of worship already existed in the outer courtyard of the RJB-BM structure. On the night of 22nd/23rd December, 1949, however, Hindu idols ....
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....arious authorities for their lapses relating to the events of December 6, to rebuild the demolished structure and to take appropriate steps regarding new Ram Temple. The last two decisions were further elaborated on 27th December as follows: The Government has decided to acquire all areas in dispute in the suits pending in the Allahabad High Court. It has also been decided to acquire suitable adjacent area. The acquired area excluding the area on which the disputed structure stood would be made available to two Trusts which would be set up for construction of a Ram Temple and a Mosque respectively and for planned development of the area. The Government of India has also decided to request the President to seek the opinion of the Supreme Court on the question whether there was a Hindu temple existing on the site where the disputed structure stood. The Government has also decided to abide by the opinion of the Supreme Court and to take appropriate steps to enforce the Court's opinion. Notwithstanding the acquisition of the disputed area, the Government would ensure that the position existing prior to the promulgation of the Ordinance is maintained until such time as t....
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....erest in respect of certain areas at Ayodhya specified in the Schedule to the Ordinance stand transferred to, and vest in, the Central Government. 3. The Bill seeks to replace the aforesaid Ordinance. S. B. CHAVAN. NEW DELHI, The 9th March, 1993. SPECIAL REFERENCE WHEREAS a dispute has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, in the area in which the structure stood in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh; 2. AND WHEREAS the said area is located in Revenue Plot Nos. 159 and 160 in the said village Kot Ramchandra; 3. AND WHEREAS the said dispute has affected the maintenance of public order and harmony between different communities in the country; 4. AND WHEREAS the aforesaid area vests in the Central Government by virtue of the Acquisition of Certain Area at Ayodhya Ordinance, 1993; 5. AND WHEREAS notwithst....
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....hall be deemed to have come into force on the 7th day of January, 1993. 2. Definitions.- In this Act unless the context otherwise requires,- (a) "area" means the area (including all the buildings, structures or other properties comprised therein) specified in the Schedule; (b) "authorised person" means a person or body of persons or trustees of any trust authorised by the Central Government under Section 7; (c) "Claims Commissioner" means the Claims Commissioner appointed under Sub-section (2) of Section 8; (d) "prescribed" means prescribed by rules made under this Act. CHAPTER II ACQUISITION OF THE AREA IN AYODHYA 3. Acquisition of rights in respect of certain area.- On and from the commencement of this Act, the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government. 4. General effect of vesting.- (1) The area shall be deemed to include all assets, rights, leaseholds, powers, authority and privileges and all property, movable and immovable, including lands, buildings, structures, shops of whatever nature or other properties and all other....
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....tte, that the right, title and interest or any of them in relation to the area or any part thereof, instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust either on the date of the notification or on such later date as may be specified in the notification. (2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees referred to in Sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall, on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees of that trust. (3) The provisions of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or trustees as they apply in relation to the Central Government and for this purpose references therein to the "Central Government" shall be construed as references to such authority or body or trustees. CHAPTER III MANAGEMENT AND ADMINISTRATION OF PROPERTY 7. Management of property by Government.- (1) Notwithstanding anything contained in any contract or instrument ....
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....rt, tribunal or other authority. 10. Penalties.- Any person who is in charge of the management of the area and fails to deliver to the Central Government or the authorised person any asset, register or other document in his custody relating to such area or, as the case may be, authenticated copies of such register or document, shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees, or with both. 11. Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against the Central Government or the authorised person or any of the officers or other employees of that Government or the authorised person for anything which is in good faith done or intended to be done under this Act. 12. Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be co....
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....ague, and it does not serve any constitutional purpose to subserve which the advisory jurisdiction of this Court could be invoked; that the real object and purpose of reference is to take away a place of worship of the Muslims and give it away to the Hindus offending the basic feature of secularism; and that, therefore, we should decline to answer the Special Reference. The learned Solicitor General who appeared for the Union of India was asked to clarify the stand of the Central Government on this point. Initially, it was stated by the learned Solicitor General that the answer to the question would provide the basis for further negotiations between the different groups to settle the controversy and the Central Government would then be able to decide the effective course available to it for resolving the controversy. On being asked to further clarify the stand of the Central Government about the purpose of the Special Reference, the learned Solicitor General made a statement in writing on behalf of the Union of India on 14th September, 1994 as under:- Government stands by the policy of secularism and of even-handed treatment of all religious communities. The Acquisition of Certa....
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....tute 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 others, however, limited this argument of immunity from acquisition only to places of special significance, forming an essential and integral part of the right to practise the religion, the acquisition of which would result in the estimation of the right to freedom of religion itself. It was also contended that the purpose of acquisition in the present case does not bring the statute within the ambit of Entry 42, ....
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....to make this acquisition along with the Special Reference to decide the question which would facilitate a negotiated solution of the problem, and if it failed, to enable the Central Government to take any other appropriate action to resolve the controversy and restore communal harmony in the country. It was made clear that acquisition of the disputed area was not meant to deprive the community found entitled to it, of the same, or to retain any part of the excess area which was not necessary for a proper resolution of the dispute or to effectuate the purpose of the acquisition, it was submitted that an assurance of communal harmony throughout the country was a prime constitutional purpose and avoidance of escalation of the dispute in the wake of the incident at Ayodhya on 6th December, 1992 was an essential step in that direction, which undoubtedly promotes the creed of secularism instead of impairing it. It was submitted that the charge leveled against the Central Government of discrimination against any religious community or of anti-secularism is wholly unwarranted. 19. Another argument advanced on behalf of the Muslim community was that the defences open to the minority comm....
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....ned in Section 2(a). It says that on and from the commencement of this Act the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government. It is well-settled that 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 in every context. In Maharaj Singh v. State of Uttar Pradesh, it was held : Is such a construction of 'vesting' in two different senses in the same section, sound? Yes. It is, because 'vesting' is a word of slippery import and has many meanings. The context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions. The meaning of "vest" in Section 3 and in Section 6 is of significance in the context of the constitutional validity of the statute. It can vary in different parts of the statute or even the same Section, depending on the context of its use. 22. Section 4 then provides the general effect of vesting. Obviously, the effect of vesting will depend....
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....agement, to the Central Government, on such vesting. 23. Then comes Section 6 which is the last Section in Chapter II, to which detailed reference would be made later. At this stage a general reference to its contents is sufficient. Section 6 contains the power of Central Government to direct vesting of the area in another authority or body or. trust. Sub-section (1) provides that the Central Government may, notwithstanding anything contained in Sections 3, 4, 5 and 7, direct by notification in the Official Gazette, that the right, title and interest or any of them in relation to the area or any part thereof, instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust from the specified date, if it is satisfied that the same is willing to comply with such terms and conditions as the Central Government may think fit to impose. In short, Sub-section (1) empowers the Central Government to transfer its right, title and interest or any of them in the area or any part thereof to any authority or other body or trustees of any trust on such terms and conditions as it may think fit to impose, instead of continuing to retain the same i....
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....ty by the Central Government or the authorised person. It mandates the Central Government or the authorised person, in managing the property vested in the Central Government under Section 3, to ensure that the position existing before the commencement of this Act "in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, stood" is maintained. This means that the power of management of the Central Government or the authorised person under Sub-section (1) of Section 7 is coupled with the duty contained in the mandate given by Sub-section (2). The mandate is that in managing the property so vested in the Central Government, the Central Government or the authorised person shall ensure maintenance of the status quo "in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, stood". There was some debate as to the meaning of the word "area" in this context. One construction suggested was that the word "area" used in this expression has the same meaning as in the definition conta....
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....er authority or body or trust and its effect according to Section 6, and Section 7 providing for management of property by the Central Government or the authorised person are the provisions of particular significance for deciding the question of constitutionality. Section 8 also is of some significance in this context. 27. We may now proceed to consider the merits of the grounds on which the Act is assailed as constitutionally invalid. LEGISLATIVE COMPETENCE 28. The legislative competence is traceable to Entry 42, List III and the State of Uttar Pradesh being under President's rule at the relevant time, the legislative competence of the Parliament, in the circumstances, cannot be doubted. That apart, the pith and substance of the legislation is "acquisition of property" and that falls squarely within the ambit of Entry 42, List III. Competing entry set up is Entry 1, List II relating to "public order". "Acquisition of property" and not "public order" is the pith and substance of the statute. 29. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga , it was pointed out that where the dominant purpose of the act was that of transference to the State o....
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....(3) provides for abatement of all pending suits and legal proceedings depriving the Muslim community of its defences including that of adverse possession for over 400 years since 1528 AD when the mosque was constructed on that site by Mir Baqi, without providing for an alternate dispute resolution mechanism, and thereby it deprives the Muslim community of the judicial remedy to which it is entitled in the constitutional scheme under the rule of law. It is urged that the Special Reference under Article 143(1) of the Constitution to this Court by the President of India is not of the core question, the answer to which would automatically resolve the dispute but only of a vague and hypothetical issue, the answer to which would not help in the resolution of the dispute as a legal issue. It is also urged that Section 6 enables transfer of the acquired property including the disputed area to any authority, body or trust by the Central Government without reference to the real title over the disputed site. It is further contended that Section 7 perpetuates the mischief of the demolition of the mosque by directing maintenance of the status quo as on 7th January, 1993 which enables the Hindus....
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....minority, constituting a tenth of the population, continued to be the citizens of independent India. There were also other important minority groups of citizens. In the ' circumstances, a secular Constitution for independent India, under which all religions ' could enjoy equal freedom and all citizen's ' equal rights, and which could weld together into one nation the different religious communities, became inevitable. The ideal, therefore, of a secular State in the sense of a State which treats all religions alike and displays a benevolent neutrality towards them is in a way more suited to the Indian environment and climate than that of a truly secular State. Secularism, in the Indian context, must be given the widest possible content. It should connote the eradication of all attitudes and practices derived from or connected with religion which impede our development and retard our growth into an integrated nation. A concerted and earnest endeavour, both by the State and citizen, towards secularisation in accordance with this wide concept alone lead to the stabilisation of our democratic state and the establishment of a true and cohesive Indian nationhood. ....
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....f Vedic, Vedantic, Buddhist and Jain philosophy. 36. The influence of saints and holy persons was indicated thus : There was natural interest, therefore, in Islam as a revealed religion brought-forth by a Prophet of profound charisma who had faced adversities, and in Christianity, which spread the light of Jesus Christ who had suffered a terrible crucification for humanity's sake. The Quran moreover referred to great souls such as Abraham, Issac, Ishmael, Jacob, Moses mentioned in the Old Testament of the Christian faith, and Jasus, A1-Fatiha or Fatiha Tu Alfatha which is also referred to as Ummul Quran or the essence of the Quran refers to 'Allah' as Rab-ul-Alamin or Lord of the entire universe, it does not confine him to Muslims alone. The Second Surah in the Quran, titled "Al-Baqurah" gives a warning, which is repeated throughout the Quran, that it is not mere professing of one's creed, but righteous conduct, that is true religion. Verses 44, 81 and 82 from this Surah make this absolutely clear. 37. Dr. Sharma also adverted to the contribution made to growth of secularism by Akbar who founded "Din-e-illahi" and the support he was given by Abdul Rahim Kha....
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.... operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution 42nd Amendment Act. The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society, Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guarantee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the democratic form of Government. There can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faith flying at each other's throats. The secular Government should negate the ....
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....t mean that the State has no say whatsoever in matters of religion. Laws can be made regulating the secular affairs of temples, mosques and other places of worships and maths, (See S. P. Mittal v. Union of India at page 233 (of SCC) : at p. 3152 of AIR Ahmadi, J. while expressing agreement with the views of Sawant, Ramaswamy and Jeevan Reddy, JJ. stated thus: Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit...(at page 77) (of SCC): (at p. 2992 of AIR). 40. It is clear from the constitutional scheme that it guarantees equality in the matter of 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 to 28 emphasises this aspect a....
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....Though there may really be no "Royal road to attain such accommodations concretely". Bentham alluded to the pursuit of equality as 'Disappointment-preventing' principle as the principle of distributive justice and part of the security-providing principle. 42. Keeping in mind the true concept of secularism, and the role of judiciary in a pluralist society, as also the duty of the Court in interpreting such a law, we now proceed to consider the submissions with reference to the provisions of the enactment. 43. It is necessary to first construe the provisions of Act No. 33 of 1993 with reference to which the grounds of challenge have to be examined. 44. The meaning of the word "vest" as earlier stated has different shades taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration. Thus the meaning of "vest" used in Section 3 has to be determined in the light of the text of the statute and the purpose of its use. If the vesting be absolute being unlimited in any manner, there can be no limitation on the right ....
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....he constitutional validity of Section 4(3) of the Act. In that event Section 4(3) may be rendered invalid resulting in revival of all pending suits and legal proceedings sought to be abated by Section 4(3), the effect being that any transfer by the Central Government of the acquired disputed property under Section 6 would be guided and regulated by the adjudication of the dispute in the revived suits. This is, of course, subject to the severability of Section 4(3). 46. It is, therefore, clear that for ascertaining the true meaning of the word "vest" used in Section 3 we must first consider the validity of Sections 6 and 7 of the Act on which it largely depends. If Sections 6 and 7 of the Act, which limit the title of the Central Government cannot be sustained, the limitation read in Section 3 to the title acquired by the Central Government under the Act through this mode would disappear. For this reason, we proceed to examine the validity of Sections 6 and 7. 47. Between Sections 6 and 7, it is Section 7 which impose a greater restriction on the power of Central Government. It gives the mandate that in management of the area over which the disputed structure stood, it has to ....
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.... by the two communities would indicate whether the provision in Section 7 directing maintenance of status quo till resolution of the dispute and the transfer by the Central Government contemplated by Section 6 is slanted towards the Hindu community to render the provision violative of the basic feature of secularism or the rights to equality and freedom of religion. 50. As earlier stated, worship by Hindu devotees of the idols installed on the Ram chabutra which stood on the disputed site within the courtyard of the disputed structure had been performed without any objection by the Muslims even prior to the shifting of those idols from the Ram chabutra into the disputed structure in December 1949; in one of the suits filed in January 1950, the trial court passed interim orders whereby the idols remained at the place where they were installed in 1949 and worship of the idols there by the Hindu devotees continued this interim order was confirmed by the High Court in April 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 1st February, 1986 and permitted worship of the idols there t....
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....he adjudication of the dispute requiring the disputed structure to be handed over to the Muslim community, their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by exercise of rights of ownership of Hindu owners of the adjacent properties. Obviously, it is for this reason that the adjacent area has also been acquired to make available to the successful party, that part of it which is considered necessary, for proper enjoyment of the fruits of success on the" final outcome of the adjudication. It is clear that one of the purposes of the acquisition of the adjacent properties is the ensurement of the effective enjoyment of the disputed site by the Muslim community in the event of its success in the litigation; and acquisition of the adjacent area is incidental to the main purpose and cannot be termed unreasonable. The "Manas Bhawan" and "Sita ki Rasoi", both belonging to the Hindus, are buildings which closely overlook the disputed site and are acquired because they are strategic in locations in relation to the disputed area. The necessity of acquiring adjacent temples or religious buildings in view of their proximity to the....
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....ole, not merely Section 7 thereof, is anti-secular being slanted in favour of the Hindus and against the Muslims. 55. Section 7(2) of the Act freezes the situation admittedly in existence on 7th January, 1993 which was 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 on 6th December, 1992; and it does not create a new situation more favourable to the Hindu community amounting to conferment on them of a larger right of worship in the disputed site than that practised till 6th December, 1992. Maintenance of status quo as on 7th January, 1993 does not, therefore, confer or have the effect of granting to the Hindu community any further benefit thereby. It is also pertinent to bear in mind that the persons responsible for demolition of the mosque on 6th December, 1992 were some miscreants who cannot be identified and equated with the entire Hindu community and, therefore, the act of vandalism so perpetrated by the miscreants cannot be treated as an act of the entire Hindu community for the purpose of adjudging the constitutionality of the enactment. Strong reaction against, and condemnation b....
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.... December, 1992 and 27th December, 1992 wherein it was said that the mosque would be rebuilt. It was urged that the action taken on 7th January, 1993 to I issue an Ordinance, later replaced by the Act, and simultaneously to make the Reference to this Court under Article 143(1) of the Constitution amounts to resiling from the earlier statements for the benefit of the Hindu community. It is sufficient to say that the I earlier statements so made cannot limit the power of the Parliament and are not material for adjudging the constitutional validity of the enactment. The validity of the statute has to be determined on the touchstone of the Constitution and not any statements made prior to it. We have therefore no doubt that Section 7 does not suffer from the infirmity of being anti-secular or discriminatory to render it unconstitutional. 59. We would now examine the validity of Section 6. Sub-section (1) of Section 6 empowers the Central Government to direct vesting of the area acquired or any part thereof in another authority or body or trust. This power extends to the entire acquired area or any part thereof. This is notwithstanding anything contained in Sections 3, 4, 5 and 7. Se....
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....eree. Sub-section (3) of Section 6 enacts that the provisions of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or trustees as they apply in relation to the Central Government. The expression "so far as may be" is indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under Sub-section (1). This provides for the situation of transfer being made, if necessary, at any stage and of any part of the property, since Section 7(2) is applicable only to the disputed area. The provision however does not countenance the dispute remaining unresolved or the situation continuing perpetually. The embargo on transfer till adjudication, and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found, to be unnecessary, as indicated. The meaning of the word "vest" in Sections 3 and 6 ....
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....on now is of the mode of adjudication of the dispute, on the final outcome of which the action contemplated by Section 6(1) of the Act of effecting transfer of the disputed area has to be made by the Central Government. 64. Sub-section (3) of Section 4 provides for abatement of all pending suits and legal proceedings in respect of the right, title and interest relating to any property which has vested in the Central Government under Section 3. The rival claims to the disputed area which were to be adjudicated in the pending suits can no longer be determined therein as a result of the abatement of the suits. This also results in extinction of the several defences raised by the Muslim community including that of adverse possession of the disputed area for over 400 years since construction of the mosque there in 1528 A.D. by Mir Baqi. Ostensibly, the alternate dispute resolution mechanism adopted is that of a simultaneous Reference made the same day under Article 143(1) of the Constitution to this Court for decision of the question referred. It is clear from the issues framed in those suits that the core question for determination in the suits is not covered by the Reference made, ....
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....ore, its invalidity is not an impediment to the remaining statute being upheld as valid. 66. There is no serious challenge to the validity of any other provision of the Act except a feeble attack on Section 8. For Section 8, it was urged, that performance of the exercise of payment of compensation thereunder would be impractical in respect of the property of which ownership is in dispute. This argument itself does not visualise any such difficulty in respect of the remaining undisputed property. In the view we have taken that the vesting in the Central Government by virtue of Section 3 in relation to the disputed area is only as a statutory receiver, and Section 4(3) being declared invalid results in revival of the pending suits and legal proceedings, the application of Section 8 would present no difficulty, Section 8 is meant only for the property acquired absolutely, other than the disputed area, being adjacent to, and in the vicinity of the 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, i....
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.... 69. It has been contended that acquisition of a mosque violates the right given under Articles 25 and 26 of the Constitution of India. This requires reference to the status of a mosque under the Mahomedan Law. 70. Even prior to the Constitution, places of worship had enjoyed a special sanctity in India. In order to give special protection to places of worship and to prevent hurting the religious sentiments of followers of different religions in British India, Chapter XV of the Indian Penal Code, 1860 was enacted. This Chapter exclusively deals with the offences relating to religion in Sections 295, 295A, 296, 297 and 298 of the Indian Penal Code. Lord Macaulay in drafting the Indian Penal Code, had indicated the principle on which it was desirable for all governments to act and the British Government in India could not depart from it without risking the disintegration of society. The danger of ignoring the religious sentiments of the people of India which could lead to spread of dissatisfaction throughout the country was also indicated. 71. In British India, the right to worship of Muslims in a mosque and Hindus in a temple had always been recognised as a civil right. Pri....
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....eir Lordships have every sympathy with the religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely to the wakf, or that it is not so possessed so long as it is referred to as "mosque" or unless the building is raged to the ground or loses the appearance which reveals its original purpose. 74. It may also be indicated that the Land Acquisition Act, 1894 is applicable uniformly to all properties including places of worship. Right of acquisition thereunder was guided by the express provisions of the Land Acquisition Act, 1894 and executive instructions were issued to regulate acquisition of places of worship. Clause 102 of the Manual of Land Acquisition of the State of Maharashtra which deals with the acquisition of religious places like churches, temples and mosques, is of significance in this context. 75. The power of acquisition is the sovereign or prerogative power of the State to acquire property. Such power exists independent of Article 300A of the Constitution or the earlier Article 31 of the Constitution which merely indicate th....
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....ire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property. 79. Acharya Maharajshri Narandra Prasadji Anand Prasadji Maharaj v. State of Gujarat, has held : One thing is, however, clear that Article 26 guarantees inter alia the right to own and acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property.... If, on the other hand, acquisition of property of a religious denomination by the State can be proved to be such as to destroy or completely negative its right to own and acquire movable and immovable property for even the survival of a religious institution the question may have to be examined in a different light." (Emphasis supplied) 80. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right t....
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....ed to the provisions of statute of limitation thereby extinguishing the right of Muslim to offer prayers in a particular mosque lost by adverse possession over that property. 4. Section 3(26) of the General Clauses Act comprehends the categories of properties known to Indian Law. Article 367 of the Constitution adopts this secular concept of property for purposes of our Constitution. A temple, church or mosque etc. are essentially immovable properties and subject to 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. 85. The correct position may be summarised thus. Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession (See Mulla's Principles of Mahomedan Law, 19th Edn. by M. Hidayatullah - Section 217 and AIR 1940 PC 1.16). If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisiti....
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....d in the Act maintaining status quo therein by virtue of the freeze enacted in Section 7(2); and 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 in terms of the final adjudication in the pending suits. The power of the courts in the pending legal proceedings to give directions to the Central Government 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. The parties to the suits would be entitled to amend their pleadings suitably in the light of our decision. 88. Before we end, we would like to indicate the consequence if the entire Act had been held to be invalid and then we had declined to answer the Reference on that conclusion. It would then result in revival of the abated suits along with all the interim orders made therein. It would also the....
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....ned Advocate General of Madhya Pradesh, the learned Advocate General of Rajasthan, Shri F. S. Nariman, Shri Soli J. Sorabjee, Late Shri R.K. Garg, Dr. Rajeev Dhawan, Shri Anil B. Divan, Shri Satish Chandra, Shri P. P. Rao, Shri Abdul Mannan, Shri O.P. Sharma, Shri S. N. Mehta, Shri P. N. Duda, Shri V.M. Tarkunde, Shri Ashok H. Desai, Shri Shakil Ahmed Syed, Ms. N. Bhagwat and the other learned Counsel who assisted them rendered their valuable assistance with great zeal after considerable industry in the highest traditions of the Bar. Shri Deoki Nandan Agarwal, one of the parties in a suit as the next friend of the Deity appeared in person and argued with complete detachment. Dr. M. Ismail Faruqui also appeared in person. It was particularly heartening to find that the cause of the Muslim community was forcefully advocated essentially by the members of the Bar belonging to other communities. Their commitment to the cause is evident from the fact that Shri Abdul Mannan who appeared for the Sunni Central Wakf Board endorsed the arguments on behalf of the Muslim community. The reciprocal gesture or. Shri Mannan was equally heartening and indicative of mutual trust. The congenial atmosp....
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....ndu temple honouring Lord Rama". It may be said that 'fundamentalism and pluralism pose the two challenges that people of all religious traditions face'; and "to the fundamentalists, the borders of religious certainty are tightly guarded; to the pluralist, the borders are good fences where one meets the neighbour. To many fundamentalists, secularism, seen as the denial of religious claims, is the enemy; to pluralists, secularism, seen as the separation of Government from the. domination of a single religion, is the essential concomitant of religious diversity and the protection of religious freedom". The present state may be summarised thus: "At present, the greatest religions tensions are not those between any one religion and another; they are the tensions between the fundamentalist arid the pluralist in each and every religious tradition". The spirit of universalism popular in the late 19th century was depicted by Max Muller who said, "The living kernel of religion can be found. I believe, in almost every creed, however much the husk may vary. And think what that means: It means that above and beneath and behind all religions there is one eternal, one universal religion.....
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....bove discussion, our conclusions, to be read with the discussion, are as follows :- (l)(a) Sub-section (3) of Section 4 of the. Act abates all pending suits and legal proceedings without providing for an alternative dispute resolution mechanism for resolution of the dispute between the parties thereto. This is an extinction of the judicial remedy for resolution of the dispute amounting to negation of rule of law. Sub-section (3) of Section 4 of the Act is, therefore, unconstitutional and invalid. (1)(b) The remaining provisions of the Act do not suffer from any invalidity on the construction made thereof by us. Sub-section (3) of Section 4 of the Act is severable from the remaining Act. Accordingly, the challenge to the constitutional validity of the remaining Act, except for Sub-section (3) of Section 4, is rejected. (2) Irrespective of the status of a mosque under the Muslim law applicable in the Islamic countries, the status of a mosque under the Mahomedan Law applicable in secular India is the same and equal to that of any other place of worship of any religion; and it does not enjoy any greater immunity from acquisition in exercise of the sovereign o....
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....has to be adjudicated in the suits and in respect of which the Central Government is merely the statutory receiver as indicated, with the duty to restore it to the owner in terms of the adjudication made in the suits. (9) The challenge to acquisition of any part of the adjacent area on the ground that it is unnecessary for achieving the professed objective of settling the long standing dispute cannot be examined at this stage. However, the area found to be superfluous on the exact area needed for the purpose being determined on adjudication of the dispute, must be restored to the undisputed owners. (10) Rejection of the challenge by the undisputed owners to acquisition of some religious properties in the vicinity of the disputed area, at this stage is with the liberty granted to, them to renew their challenge, if necessary at a later appropriate stage, in cases of continued retention by Central Government of their property in excess of the exact area determined to be needed on adjudication of the dispute. . (11) Consequently, the Special Reference No. 1 of 1993 made by the President of India under Article 143(1) of the Constitution of India is superfluous....
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....d by the High Court in April, 1955. On 1st February, 1986, the District Judge concerned ordered the opening of the locks upon the disputed structure and permitted puja by devotees. In 1959 a suit was filed claiming title to the disputed structure by the Nirmohi Akhara. In 1961 another suit was filed claiming title to the disputed structure by the Sunni Central Wakf Board. In 1989 Devki Nandan Agarwal as the next friend of the deity, that is to say, the said idols, filed a title suit in respect of the disputed structure. In 1989 the suits aforementioned were transferred to the Allahabad High Court and were ordered to be heard together. On 14th August, 1989, the High Court ordered the maintenance of status quo in respect of the disputed structure. (Appendix I to the White Paper.) "The controversy entered a new phase with the placing of idols in the disputed structure in December, 1949. The premises were attached under Section 145 of the CrPC. Civil suits were filed shortty thereafter. The interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December, 1949 till December, 1992 the structure had ....
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.... Government would ensure that the position existing prior to the promulgation of the Ordinance is maintained until such time as the Supreme Court gives its opinion in the matter. Thereafter the rights of the parties shall be determined in the light of the Court's opinion" 107-109. An Ordinance, which was replaced by the said Act, was issued on 7th January, 1993. The Reference under Article 143 was made on the same day. We shall refer to the provisions of the Act later. For the present, it is necessary to set out the Reference in full: WHEREAS a dispute has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, in the area in which the structure stood in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh; 2. AND WHEREAS the said area is located in Revenue Plot Nos. 159 and 160 in the said village Kot Ramachandra; 3. AND WHEREAS the said dispute has affected the maintenanc....
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....tructure be re-built? On 14th September, 1994, the learned Solicitor General made the following statement in response : Government stands by the policy of secularism and of even-handed treatment of all religious communities. The Acquisition of Certain Area at Ayodhya Act, 1993, as well as the Presidential Reference, have the objective of maintaining public order and promoting communal harmony and the spirit of common brotherhood amongst the people of India. Government is committed to the construction of a Ram temple and a mosque, but their actual location will be determined only after the Supreme Court renders its opinion in the Presidential Reference. Government will treat the finding of the Supreme Court on the question of fact referred under Article 143 of the Constitution as a verdict which is final and binding. In the light of the Supreme Court's opinion and consistent with it, Government will make efforts to resolve the controversy by a process of negotiations. Government is confident that the opinion of the Supreme Court will have a salutary effect on the attitudes of the communities and they will no longer take conflicting positions on the factual issue sett....
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.... 2.2 and 2.3 of the White Paper). 113. The Statement of Objects and Reasons for the Act states: It was considered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a complex which could be developed in a planned manner wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities can be set up. 114. The Act has been placed on the statute book to provide for the acquisition of "certain area at Ayodhya and for matters connected therewith or incidental thereto". The Act recites that there had "been a long standing dispute" relating to the structure aforementioned which had affected the maintenance of public order and harmony between different communities in the country. It was "necessary to maintain public order and promote communal harmony and the spirit of common brotherhood among the people of India". It was necessary to acquire certain areas in Ayodhya "with a view to achieve the aforesaid objectives". 115. The Act, by reason of Section 1(2), is deemed to have come into force on 7th January, 1993 (which is the date on which the Ordinance was passed). Section 2(a) defines "area" to....
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....art thereof, instead of continuing to vest in the Central Government, vest in that authority or body of trustees of that trust either on the date of the notification or on such later date as may be specified in the notification. (2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees referred to in Sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall, on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees of that trust, (3) The provisions of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to the Central Government and for this purpose references therein to the Central Government shall be construed as references to such authority or body or trustees. 119. Section 7 is the only section under the Chapter entitled "Management and Administration of Property", and it reads thus: (1) Notwithstanding anything contained in any contract or instrument or order of any Court, Tribunal or other authority to the contrary, on and from the commencement of this Act, the property vested in th....
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....ts and interests therein or arising thereout. The whole bundle of property and rights vests, by reason of Section 4(2), in the Central Government freed and discharged from all encumbrances. 123. Section 7(1) speaks of property vested in the Central Government under Section 3. It, therefore, speaks of the whole bundle of property and rights. These are to be managed by the Central Government or any person or body of persons or trustees of any trust so authorised. In managing the whole bundle of property and rights "the Central Government or the authorised person shall ensure that the position existing before the commencement of this Act in the area on which the structure (including the premises of the inner and outer courtyards) ...stood...is maintained". This provision in Section 7(2) relates only to that part of the area upon which the disputed structure stood (the disputed site). 124. Now, as to the "authorised person", Section 7(1) says that the whole bundle of property and rights shall be managed by the Central Government or by a person or body of persons or trustees of any trust authorised by the Central Government. This, as Section 7(2) shows, is the "authorised person" ....
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....ny of them" in relation to the whole bundle of property or rights or any part thereof, instead of continuing to vest in the Central Government, shall vest in that authority or body or trustees of that trust. Thereupon, by reason of Section 6(2), the rights of the Central Government in the whole bundle of property and rights or such part thereof as has been vested under Section 6(1) shall, on and from the date of such vesting, be deemed to have become the rights of the authority or body or trustees of that trust. In other words, when the vesting takes place in respect of the whole bundle of property and rights or of any part thereof, all the rights of the Central Government in the whole bundle of property and rights or such part thereof as has been vested, shall be deemed to be transferred to the authority or body or trust in which it is vested. 128. The provisions of Section 6 apply to the whole bundle of property and rights; that is to say, they apply also to the disputed site. The disputed site may also be vested in an authority or body or trust that is willing to comply with the terms and conditions that the Central Government might think fit to impose. Those terms and condit....
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....to be entertained by a Claims Commissioner to be appointed by the Central Government. For the purposes of establishing his claim, the owner would have to establish his title to the property that has been acquired. The suits in the Allahabd High Court which abate by reason of Section 4(3) relate to the title of the disputed site. In other words, the forum for the adjudication of the title to the disputed site is shifted from the Courts to the Claims Commissioner. 132. The above is an analysis of the Act by itself. It is necessary to read it also in the context of its Statement of Objects and Reasons and the Reference. 133. The Statement of Objects and Reasons states that the acquisition of the whole bundle of property and rights is necessary for setting up a planned complex housing "a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities". The authority or other body or trustees of any trust willing to comply with such terms arid conditions as the Central Government may think fit to impose would, under the provisions of Section 6, be vested with a part of the whole bundle of property and rights to construct and maintain a Ram temple and ....
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....uit, appeal or other proceedings in respect of the right, title and interest relating to any property which is vested in the Central Government under Section 3 which was pending before any Court, Tribunal or other authority on the date of the commencement of the Act "shall abate". By reason of Section 8 the owner of any land, building, structure or other property comprised in the "area" shall be given by the Central Government in cash an amount equivalent to the market value of the land, building, structure or other property that has been transferred to and vests in the Central Government under Section 3. Such claims are to be decided by a Claims Commissioner, who is entitled to regulate his own procedure. 136. As the White Paper shows, the demolished structure was built as a mosque in 1528. It was used as a mosque from 1528 until the night of 22nd/23rd December, 1949, when the idols were placed therein. The idols continue in the disputed structure by reason of the orders of the Courts. Under the orders of the Court passed in 1986 public worship of the idols was permitted. This state of affairs continued until 6th December, 1992, when the disputed structure was demolished. 13....
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....aforesaid and restrict the redress of their grievance in respect of the disputed site to the answer to 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 as against another. 139. That secularism is a part of the basic features of the Constitution, was held in Kesavananda Bharati v. State of Kerala. It was unanimously reaffirmed by the nine-Judge Bench of this Court in S.R. Bommai v. Union of India. Sawant, J. analysed the Preamble of the Constitution and various articles therein and held that these provisions, by implication, prohibited the establishment of a theocratic State and prevented the State from either identifying itself with or favouring any particular religion. The State was enjoined to accord equal treatment to all religions. K. Ramaswamy, J. quoted the words written by Gandhiji that are as apposite now as they were when he wrote them : "The Allah....
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....ustees of any trust". Section 7(2) states that "in managing the property vested in the Central Government under Section 3 the Central Government or the authorised person...shall ensure that the position existing before the commencement of this Act in the area on which" the disputed structure "stood ...is maintained ". It is relevant to note that "the position" is required to be maintained in the course of "managing the property". Before "the commencement of this Act" the disputed structure had been demolished, the idols had been placed on the disputed site and puja thereof had begun. Section 7(2), therefore, requires that the puja must continue so long as the management continues. For how long such management, to continue and on the happening on what event it will come to end is not indicated. Section 7(2), thus, perpetuates the performance of puja on the disputed site. No account is taken of the fact that the structure thereon had been destroyed in "a most reprehensible act. The perpetrators of this deed struck not only against a place of worship but at the principles of secularism, democracy and the rule of law ..."(White Paper, para 1.35). No account is taken of the fact that th....
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....erred by the provisions of the Places of Worship Act. 144. The Preamble to the Constitution of India proclaims that India is a Secular Democratic Republic. Article 15 in Part III of the Constitution, which provides for fundamental rights, debars the State from discriminating against any citizen on the ground of religion. Secularism is given pride of place in the Constitution. The object is to preserve and protect all religions, to place all religious communities on a 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 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 circumstances is to efface the principle of secularism from the Constitution. 145. We must add a caveat. I....
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....here shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(2) puts the requirement negatively: no citizen shall on the ground of religion be ineligible for or be discriminated against in respect of any employment or office under the State. Again, the obligation in this behalf is not subject to any restriction. The "hands-off" approach required of the State in matters of religion is illustrated also by Article 27, by reason whereof no person can be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion. Article 29(2) may also be noted for its absolute terms; no citizen can be denied admission into any educational institution maintained by the State or receiving aid out of State funds on the ground of religion. 149. This brings us to the Reference. The Act having been struck down, the suits as to the title of the disputed site in the Allahabad High Court revive and the purpose for which the Reference was made may be said to have become redundant. On the other hand, it may be said that the r....
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.... for the President to decide. The plain duty and functions of the Supreme Court under Article 143(1) of the Constitution is to consider the questions on which the President has made the reference and report to the President its opinion, provided of course the question is capable of being pronounced upon and falls within the power of the Court to decide. If, by reason of the manner in which the question is framed or for any other appropriate reason the Court considers it not proper or possible to answer the question it would be entitled to return the reference by pointing out the impediments in answering it. The right of this Court to decline to answer a reference does not flow merely out of the different phraseology used in Clauses (1) and (2) of Article 143, in the sense that Clause (1) provides that the Court "may" report to the President its opinion on the question referred to it, while Clause (2) provides that the Court "shall" report to the President its opinion on the question. Even in matters arising under Clause (2), though that question does not arise in this reference, the Court may be justified in returning the reference unanswered if it finds for a valid reason that the....
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....e and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, 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 this Court's credibility. 155. Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it. 156. No observation that we have made is a reflection on the referring authority. We have the highest respect for the office of the President of India and for its present incumbent; his secular credentials are well known. 157. Having regard to the construction that we have placed upon the Act and the Reference, it is neither necessary nor appropriate to discuss the other challenges to their validity and maintainability, respectively. It may, ho....