Ismail Faruqui Vs. Union of India [1994] INSC 547 (24 October 1994)
1994 Latest Caselaw 541 SC

Ismail Faruqui Vs. Union of India [1994] INSC 547 (24 October 1994)

Verma, Jagdish Saran (J) Verma, Jagdish Saran (J) Venkatachalliah, M.N.(Cj) Ahmadi, A.M. (J) Ray, G.N. (J) Bharucha S.P. (J)

CITATION: 1995 AIR 605 1994 SCC (6) 360 JT 1994 (6) 632 1994 SCALE (2)100

ACT:

HEAD NOTE:

The Judgments of the Court were delivered by J.S. VERMA, J. (for Venkatachaliah, C.J., himself and Ray, 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." This thought comes to mind as we contemplate the roots of this controversy. Genesis of this dispute is traceable to erosion of some fundamental values of the plural commitments of our polity.

2. The constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993) (hereinafter referred to as 'Act No. 33 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 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.

3. 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

4. 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.

5. 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 because of its mention in the epic Ramayana as the place of birth of Sri Ram.

The structure commonly known as Ram Janma Bhoomi-Babri Masjid was erected as a mosque by one Mir Baqi in Ayodhya in 1528 AD. It is claimed by some sections that it was built at the site believed to be the birthspot of Sri Ram where a temple had stood 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 attached 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 removing the idols or interfering with their worship. In 379 effect, therefore, from December 1949 till 6- 12-1992 the structure had not been used as a mosque."

6. The movement to construct a Ram Temple at the site of the disputed structure gathered momentum in recent years 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 involving the Vishwa Hindu Parishad (VHP) and the All India Babri 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 adjoining the disputed structure while leaving out the disputed structure itself from the acquisition. The focus of the temple construction movement from October 1991 was to start construction of the temple by way of kar sewa 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 6-12-1992 and the announcement made by the organisers was for a symbolic kar sewa without violation of the court orders including those made in the proceedings pending in this Court. In spite of initial reports from Ayodhya on 6-12-1992 indicating an air of normalcy, around midday a crowd addressed by leaders of BJP, VHP, etc., climbed the Ram Janma Bhumi-Babri Masjid (RJM-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 fairplay 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.

7. 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 6-12-1992 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.

1.36 What happened on 6-12-1992 was not a failure of the system as a whole, nor of the wisdom inherent in India's Constitution, nor yet of the power of tolerance, brotherhood and compassion that has so vividly informed the life of independent India. It was, the Supreme Court 380 observed on that day, 'a great pity that a constitutionally elected Government could not discharge its duties in a matter of this sensitiveness and magnitude'. Commitments to the Court and Constitution, pledges to Parliament and the people, were simply cast aside. Therein lay the failure, therein the betrayal.

1.37 Today India seeks to heal, and not reopen its wounds; to look forward with hope, and not backwards with fear; to reconcile reason with faith. Above all, India is determined to press ahead with the National Agenda, undeterred by aberrations."

8. It may be mentioned that a structure called the Ram Chabutra stood on the disputed site within the courtyard of the disputed structure. This structure also was demolished on 6-12-1992 (Appendix-V to the White Paper). Worship of the idols installed on the Ram Chabutra by Hindu devotees in general, it appears, had been performed for a considerable period of time without any objection by the Muslims to its worship at that place, prior to the shifting of the idols from the Ram Chabutra to the disputed structure in December 1949. As a result of demolition of Ram Chabutra also on 6- 12-1992, the worship by Hindus in general even at that place was interrupted. Thereafter, the worship of idols is being performed only by a priest nominated for the purpose without access to the public.

9. A brief reference to certain suits in this connection may now be made. In 1950, two suits were filed by some Hindus; in one of these suits in January 1950, the trial court passed interim orders whereby the idols remained at the place where they were installed in December 1949 and their puja by the Hindus continued. The interim order was confirmed by the High Court in April 1955. On 1-2-1986, 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 and permitted puja by the Hindu devotees.

In 1959, a suit was filed by the Nirmohi Akhara claiming title to the disputed structure. In 1981, another suit was filed claiming title to the disputed structure by the Sunni Central Wakf Board. In 1989, Deoki Nandan Agarwal, 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 14-8-1989, the High Court ordered the maintenance of status quo in respect of the disputed structure (Appendix-1 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 6-12-1992 the structure had not been used as a mosque."

10. 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 381 disputed structure as a mosque from 1934 to December 1949.

One version is that after some disturbance in 1934, the use of the disputed structure as a mosque had been stopped from 1934 itself and not merely from December 1949. The other side disputes the alleged disuse of the mosque for prayers prior to December 1949. The stand of the Uttar Pradesh Government in the suits was that the place was used as a mosque till 1949.

11. As a result of the incidents at Ayodhya on 6-12-1992, the President of India issued a proclamation under Article 356 of the Constitution of India assuming to himself all the functions of the Government of Uttar Pradesh, dissolving the U.P. Vidhan Sabha. The White Paper in Chapter 11 mentions the 'Background' and therein it is stated as under:

"2.1 At the centre of the RJB-BM dispute is the demand voiced by Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration of a site said to be the birthplace of Sri Ram in Ayodhya. Till 6-12- 1992 this site was occupied by the structure erected in 1528 by 'Mir Baqi' who claimed to have built it on orders of the first Mughal Emperor Babar. This structure has been described in the old government records as Masjid Janmasthan. It is now commonly referred to as Ram Janma Bhumi-Babri Masjid.

2.2 The VHP and its allied organisations base their demand on the assertion that this site is the birthplace of Sri Ram and a Hindu temple commemorating this site stood here till it was destroyed on Babar's command and a Masjid was erected in its place. The demand of the VHP has found support from the Bhartiya Janata Party (BJP). The construction of a Ram temple at the disputed site, after removal or relocation of the existing structure, was a major plank in BJP's campaign during elections held in 1989 and 1991. Other major political parties, however, had generally opposed this demand and had taken the stand that while a temple should be built, the issues in dispute should be resolved either by negotiations or by orders of the Court.

2.8 During the negotiations aimed at finding an amicable solution to the dispute, one issue which came to the fore was whether a Hindu temple had existed on the site occupied by the disputed structure and whether it was demolished on Babar's orders for the construction of the Masjid. It was stated on behalf of the Muslim organisations, as well as by certain eminent historians, that there was no evidence in favour of either of these two assertions. It was 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.

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 382 to a competent authority. However, as brought out elsewhere in this Paper the negotiations were disrupted at a crucial phase. Now, th e 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 22/23-12-1949, however, Hindu idols were placed under the central dome of the main structure. Worship of these idols was started on a big scale from the next morning. As this was likely to disturb the public peace, the civil administration attached the premises under Section 145 of the Code of Criminal Procedure. This was the starting point of a whole chain of events which ultimately led to the demolition of the structure. The main events of this chain have been summarised in Appendix-1.

2.14 Soon after the installation of the idols two civil suits were filed by Hindu plaintiffs seeking to restrain the Administration from removing the idols from the disputed structure or placing any restrictions in the way of devotees intending to offer worship. Interim injunctions were issued by the civil court to this effect. These injunctions were confirmed by the Allahabad High Court in 1955.

2.15 The Hindu idols thus continued inside the disputed structure since 1949. Worship of these idols by Hindus also continued without interruption since 1949 and the structure was not used by the Muslims for offering prayers since then. The controversy remained at a low ebb till 1986 when the District Court of Faizabad ordered opening of the lock placed on a grill leading to the sanctum sanctorum of the shrine. An Organisation called the Babri Masjid Action Committee (BMAC), seeking restoration of the disputed shrine to the Muslims came into being and launched a protest movement. The Hindu organisations, on the other hand, stepped up their activities to mobilise public opinion for the construction of a Ram temple at the disputed site."

12. After the imposition of President's rule in the State of Uttar Pradesh as a consequence of the events at Ayodhya on 6-12-1992, action taken by the Central Government is detailed in Chapter VIII of the White Paper with reference to the communal situation in the country which deteriorated sharply following the demolition of the RJB-BM structure on 6-12-1992 and spread of communal violence in several other

States. Para 8.11 in Chapter VIII relating to the "ACTION

TAKEN BY THE CENTRAL GOVERNMENT" is as under:

"8.11 Mention has been made above (Overview) of the decisions taken on 7th December by the Government to ban communal 383 organisations, to take strong action for prosecution of the offences connected with the demolition, to fix responsibilities of various authorities for their lapses relating to the events of December 8, 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 the Supreme Court gives its opinion in the matter. Thereafter the rights of the parties shall be determined in the light to the Court's opinion.' In pursuance of these decisions an ordinance named 'Acquisition of Certain Area at Ayodhya Ordinance' was issued on 7-1-1993 for acquisition of 67.703 acres of land in the Ram Janma Bhoomi-Babri Masjid complex. A Reference to the Supreme Court under Article 143 of the Constitution was also made on the same day. Copy of the Ordinance is at Appendix-XV and of the Reference at Appendix- XVI."

13. The Acquisition of Certain Area at Ayodhya Ordinance, 1993 (No. 8 of 1993) has been replaced by the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993), the constitutional validity of which has to be examined by us.

14. The said Ordinance, later replaced by Act No. 33 of 1993 and the Special Reference under Article 143(1) of the Constitution of India were made simultaneously the same day on 7-1-1993. It would be appropriate at this stage to quote, in extenso, the Statement of Objects and Reasons for this enactment, the said Act No. 33 of 1993 and the Special Reference under Article 143(1) of the Constitution.

"STATEMENT OF OBJECTS AND REASONS There has been a long-standing dispute relating to the erstwhile Ram Janma Bhumi- Babri Masjid structure in Ayodhya which led to communal tension and violence from time to time and ultimately led to the destruction of the disputed structure on 6-12-1992. This was 384 followed by widespread communal violence which resulted in large number of deaths, injuries and destruction of property in various parts of the country. The said dispute has thus affected the maintenance of public order and harmony between different communities in the country. As it is necessary to maintain communal harmony and the spirit of common brotherhood amongst the people of India, 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.

2. The Acquisition of Certain Area at Ayodhya Ordinance, 1993 was accordingly promulgated by the President on 7-1-1993. By virtue of the said Ordinance the right, title and interest 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 Ramchandra 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 notwithstanding the vesting of the aforesaid area in the Central Government under the said Ordinance the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India and in terms of the said opinion;

6. And whereas in view of what has been hereinbefore stated it appears to me that the question hereinafter set out has arisen and is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon;

7. Now, therefore, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, 1, Shanker Dayal 385 Sharma, President of India, hereby refer the following question to the Supreme Court of India for consideration and opinion thereon, namely:

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 structure) in the area on which the structure stood? Sd/- President of India New Delhi;

Dated 7th January, 1993."

"THE ACQUISITION OF CERTAINAREAAT AYODHYA ACT, 1993 (No. 33 OF 1993) [3rd April, 1993] An Act to provide for the acquisition of certain area at Ayodhya and for matters connected therewith or incidental thereto.

Whereas there has been a long-standing dispute relating to the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, situated in Village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh;

And whereas the said dispute has affected the maintenance of public order and harmony between different communities in the country;

And whereas it is necessary to maintain public order and to promote communal harmony and the spirit of common brotherhood amongst the people of India;

And whereas with a view to achieving the aforesaid objectives, it is necessary to acquire certain areas in Ayodhya;

Be it enacted by Parliament in the Forty- fourth Year of the Republic of India as follows:

CHAPTER I PRELIMINARY

1. Short title and commencement.-

(1) This Act may be called the Acquisition of Certain Area at Ayodhya Act, 1993.

(2) It shall 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;

386 (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 ACQUIOSITION 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 rights and interests in, or arising out of, such properties as were immediately before the commencement of this Act in the ownership, possession, power or control of any person or the State Government of Uttar Pradesh, as the case may be, and all registers, maps, plans, drawings and other documents of whatever nature relating thereto.

(2) All properties aforesaid which have vested in the Central Government under Section 3 shall, by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other encumbrances affecting them and any attachment, injunction, decree or order of any court or tribunal or other authority restricting the use of such properties in any manner or appointing any receiver in respect of the whole or any part of such properties shall cease to have any effect.

(3) If, on the commencement of this Act, any suit, appeal or other proceeding in respect of the right, title and interest relating to any property which has vested in the Central Government under Section 3, is pending before any court, tribunal or other authority, the same shall abate.

5. Duty of person or State Government in charge of the management of the area to deliver all assets, etc.- (1) The Central Government may take all necessary steps to secure possession of the area which is vested in that Government under Section 3.

(2) On the vesting of the area in the Central Government under Section 3, the person or State Government of Uttar Pradesh, as the case may be, in charge of the management of the area immediately before such vesting shall be bound to deliver to the Central Government or the authorised person, all assets, registers and other documents in their custody relating to such vesting or where it is not practicable to deliver such registers or documents, the copies of such registers or documents authenticated in the prescribed manner.

387

6. Power of Central Government to direct vesting of the area in another authority or body or trust.- (1) Notwithstanding anything contained in Sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are willing to comply with such terms and conditions as that Government may think fit to impose, 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 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 or order of any court, tribunal or other authority to the contrary, on and from the commencement of this Act, the property vested in the Central Government under Section 3 shall be managed by the Central Government or by a person or body of persons or trustees of any trust authorised by that Government in this behalf.

(2) 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 structure (including the premises of the inner and outer courtyards of such structure), commonly known as Ram Janma Bhumi- Babri Masjid, stood in Village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in Teshil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained.

CHAPTER IV MISCELLANEOUS

8. Payment of amount.- (1) The owner of any land, building, structure or other property comprised in the area shall be given by the Central Government, for the transfer to and vesting in that Government under Section 3 of that land, building, structure or other property, in cash 388 an amount equivalent to the market value of the land, building, structure or other property.

(2) The Central Government shall, for the purpose of deciding the claim of the owner or any person having a claim against the owner under sub-section (1), by notification in the Official Gazette, appoint a Claims Commissioner.

(3) The Claims Commissioner shall regulate his own procedure for receiving and deciding the claims.

(4) The owner or any person having a claim against the owner may make a claim to the Claims Commissioner within a period of ninety days from the date of commencement of this Act:

Provided that if the Claims Commissioner is satisfied that the claimant was prevented by sufficient cause from preferring the claim within the said period of ninety days, the Claims Commissioner may entertain the claim within a further period of ninety days and not thereafter.

9. Act to override all other enactments.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act or any decree or order of any court, 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 comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that 389 any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

13. Repeal and saving.- (1) Subject to the provisions of sub-section (2), the Acquisition of Certain Area at Ayodhya Ordinance, 1993 (Ord. 8 of 1993), is hereby repealed.

(2) Notwithstanding anything contained in the said Ordinance,- (a) the right, title and interest in relation to plot No. 242 situated in Village Kot Ramchandra specified against SI. No. 1 of the Schedule to the said Ordinance shall be deemed never to have been transferred to, and vested in, the Central Government;

(b) any suit, appeal or other proceeding in respect of the right, title and interest relating to the said plot No. 242, pending before any court, tribunal or other authority, shall be deemed never to have abated and such suit, appeal or other proceeding (including the orders or interim orders of any court thereon) shall be deemed to have been restored to the position existing immediately before the commencement of the said Ordinance;

(c) any other action taken or thing done under that Ordinance in relation to the said plot No. 242 shall be deemed never to have been taken or done.

(3) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.

THE SCHEDULE [See Section 2(a)] Description of the Area

15. At the hearing, it was strenuously urged that the question of fact referred under Article 143(1) of the Constitution is vague, the answer to it is by itself not decisive of the real controversy since the core question has not been referred; and it also gives no definite indication of the manner in which the Central Government intends to act after the Special Reference is answered, to settle the dispute. It was urged that the question referred is, therefore, academic, apart from being vague, 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 the 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 390 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 14-9-1994 as under:

"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 commo n 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 (sic) 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 settled by the Supreme Court.

If efforts at a negotiated settlement as aforesaid do not succeed, Government is committed to enforce a solution in the light of the Supreme Court's opinion and consistent with it. Government's action in this regard will be even-handed in respect of both the communities. If the question referred is answered in the affirmative, namely, 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, on the other hand, the question is answered in the negative, namely, that no such Hindu temple/structure existed at the relevant time, then Government action will be in support of the wishes of the Muslim community." This statement in writing made by the learned Solicitor General on behalf of the Union of India forms a part of the record and has to be taken into account to indicate the purpose for which the Special Reference under Article 143(1) has been made to this Court.

16. The dispute and its background are mentioned in paras 2.1, 2.2 and 2.3 of Chapter 11 of the White Paper quoted earlier. This is the backdrop in which the constitutional validity of Act No. 33 of 1993 and the maintainability of the Special Reference made under Article 143(1) of the Constitution of India have to be examined.

Validity of Act No. 33 of 1993

17. Broadly stated, the focus of challenge to the statute 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 391 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 extinction 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, List III but is referable to Entry 1, List II and, therefore, Parliament did not have the competence to enact the same. It was then urged by learned counsel canvassing the Muslim interest that the legislation is tilted heavily in favour of the Hindu interests and, therefore, suffers from the vice of non-secularism and discrimination in addition to violation of the right to freedom of religion of the Muslim community. It was also urged by them that the Central Government, after the Prime Minister's statement made on 7-12-1992, to rebuild the demolished structure (para 1.22 in Chapter 1 of the White Paper) resiled from the same and by incorporating certain provisions in the statute has sought to perpetuate the injustice done to the Muslim community by the act of vandalism of demolition of the structure at Ayodhya on 6-12- 1992. On behalf of the Muslim community, it is urged that the statute read in the context of the content of the question referred under Article 143(1) of the Constitution, as it must be, is a mere veiled concealment of a device adopted by the Central Government to perpetuate the consequences of the demolition of the mosque on 6-12-1992.

The grievance of the Hindu opponents is that the mischief and acts of vandalism committed by a few are being attributed to the entire Hindu community the majority of whom is equally hurt by, and critical of, the shameful act.

They urge that this disapproval by the majority community is evident from the result of the subsequent elections in which the Bhartiya Janata Party was rejected at the hustings by the Hindu majority. They also submit that the fact of demolition of Hindu structures like the Ram Chabutra and Kaushalya Rasoi which stood since ages in the disputed site resulting in interruption of even the undisputed right of worship of Hindus within that area is being ignored. It is also contended that there is no justification for acquisition of any property in excess of the disputed area and, therefore, the acquisition at least of the excess area belonging, admittedly, to Hindus is invalid.

18. On behalf of the Central Government, it is urged that in the existing situation and in view of the widespread communal flare-up throughout the country on account of the events at Ayodhya on 6-12-1992, the most appropriate course, in the opinion of the Central Government, was to make 392 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 6-12-1992 was an essential step in that direction, which undoubtedly promotes the creed of secularism instead of impairing it. It was submitted that the charge levelled 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 community in the suits filed by the other side including that of adverse possession by virtue of long possession of the disputed site for over 400 years since its construction in 1528 AD have also been extinguished by the acquisition, giving an unfair advantage to the other side. It was also urged that the core question in the dispute between the parties was not the subject-matter of the Special Reference made under Article 143(1) of the Constitution and, therefore, answer to the same would not result in a resolution of the dispute between the parties to the suits.

It was accordingly urged, there is deprivation of the judicial remedy for adjudication of the dispute without the substitution of an alternate dispute resolution mechanism, which is impermissible under the Constitution.

20. It is appropriate at this stage to refer to the provisions of the statute before we deal with the arguments challenging its constitutional validity. The Statement of Objects and Reasons says that there is a long-standing dispute relating to the disputed structure in Ayodhya which led to communal tension and violence from time to time and ultimately has led to the destruction of the disputed structure on 6-12-1992 followed by widespread communal violence resulting in loss of many lives and destruction of property throughout the country. The said dispute has thus affected the maintenance of public order and communal harmony in the country. Obviously, it is necessary to maintain and promote communal harmony and fraternity amongst the people of India. With this objective in view it was considered necessary to acquire the site of the disputed structure and the requisite adjacent area to be utilised in an appropriate manner to achieve this object. For this purpose, the Acquisition of Certain Area at Ayodhya Ordinance, 1993 was promulgated by the President on 7-1- 1993, and, simultaneously, on the same day, this Reference was also made by the President to this Court under Article 143(1) of the Constitution. The said Ordinance was replaced by the Acquisition of Certain Area at Ayodhya Act, 1993 (No.

33 of 1993) to the same effect, and Section 1(2) provides that the Act shall be deemed to 393 have come into force on the 7-1-1993. The provisions of the said Act are now considered.

21. Section 3 provides for acquisition of rights in relation to the 'area' defined 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 wellsettled 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 U. P1, it was held:

(SCR p. 1081 : SCC pp. 164-65, para 16) "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 on the meaning of the word 'vest' used in Section 3 and the kind of vesting in the present context. Sub-section (1) of Section 4 provides that the area shall be deemed to include all assets, rights, etc., specified therein of whatever nature relating thereto. Sub-section (2) further says that all properties aforesaid which have vested in the Central Government under Section 3 shall, by force of such vesting, be freed and discharged from all encumbrances affecting them and any attachment, injunction, decree or order of any court or tribunal or other authority restricting the use of such properties in any manner or appointing any receiver in respect of the whole or any part of the property shall cease to have effect. In other words, the effect of such vesting is to free all properties aforesaid which have vested in the Central Government under Section 3 of all encumbrances and the consequence of any order of any court or tribunal of any kind restricting their user in any manner. Sub-section (3) of Section 4 provides for abatement of all pending suits and legal proceedings. The meaning of the word 'vest' in Section 3 has a bearing on the validity of this provision since the consequence of abatement of suits etc. provided therein is relatable only to absolute vesting of the disputed area which is the subject matter of the suits and not to a situation where the vesting under Section 3 is of a limited nature for a particular purpose, and is of limited duration till the happening of a future event. Section 5 indicates the duty of the person or State Government in charge of the management of the area to deliver all assets etc. to the Central Government on such vesting. Sub-section (1) 1 (1977) 1 SCC 155 :(1977) 1 SCR 1072 394 empowers the Central Government to take all necessary steps to secure possession of the area which is vested in the Central Government under Section 3. Sub-section (2) obliges the person or State Government of Uttar Pradesh, as the case may be, in charge of the management of the area immediately before such vesting to deliver to the Central Government or the authorised person all assets etc. in their custody relating to such vesting. In short, Section 5 provides the consequential action to be taken by the Central Government with the corresponding obligation of the person or State Government in charge of the management of the area to deliver possession of the area, together with its management, to the Central Government, on such vesting.

23. Then comes Section 6 which is the last section in Chapter 11, 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 itself.

Sub-section (2) provides for the consequences of the action taken under sub-section (1) giving recognition to the statutory transfer effected by the Central Government to effectuate the purpose of such transfer by the Central Government by declaring that the transferee would then step into the shoes of the Central Government acquiring the same right, title and interest in the area or part thereof which by virtue of the enactment had earlier vested in the Central Government, Sub-section (3) is another consequence of the action taken under sub-section (1) and provides that Sections 4, 5, 7 and 11, so far as may be, would apply to such transferee as they apply in relation to the Central Government. It may here be recalled that Section 4 relates to the effect of vesting under Section 3; Section 5 to the duty of the person or State in charge of the management of the area to deliver possession etc. to the Central Government or the authorised person; Section 7 to the management and the administration of property by the Central Government on its vesting; and Section 11 gives protection to action taken in good faith by the Central Government or the authorised person or anyone acting on its behalf under this Act.

24. Chapter III contains Section 7 alone which would be considered at length later in view of the serious challenge made to its constitutional validity. This section deals with the management and administration of the 395 property by the Central Government, on its vesting. Sub- section (1) provides for management of the property vested in the Central Government under Section 3 by the Central Government or by any authorised person, on such vesting, notwithstanding anything to the contrary contained in any contract or instrument or order of any court, tribunal or other authority. In other words, in spite of any contrary provision in any contract or instrument or order of any court, tribunal or other authority, from the commencement of this Act, the management of the property vested in the Central Government under Section 3 shall be by the Central Government or by an authorised person, so authorised by the Government on its behalf and none else. This provision expressly supersedes any earlier provision relating to the management of the property so vested in the Central Government. Sub-section (2) then provides for the manner of the management of the property 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 contained in Section 2(a), that is, the entire area specified in the Schedule to the Act. Section 2 itself says that the definitions therein give the meaning of the words defined "unless the context otherwise requires". The context in which the word 'area' is used in the expression in Section 7(2) gives the clear indication 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 is undoubtedly smaller and within "the area specified in the Schedule".

25. Chapter IV contains the miscellaneous provisions.

Therein Section 8 provides for payment of amount equivalent to the market value of the land, building, structure or other property by the Central Government for the transfer to, and vesting of the property in, the Government under Section 3, to its owner. Remaining part of Section 8 contains the machinery provisions 7 for payment of the amount. Section 9 gives the overriding effect of the provisions of this Act on any other law or decree or order of any court, 396 tribunal or other authority. Section 10 provides for penalties. It says that any person who is in charge of the management of the area and fails to deliver to the Central Government or the authorised person the possession etc.

required under this Act shall be punishable in the manner provided. Section 11 gives protection to the Central Government or the authorised person or anyone acting on its behalf for anything done or intended to be done under this Act in good faith. Section 12 contains the rule-making power of the Central Government to carry out the provisions of this Act and the manner in which the rules are to be made. Section 13 is the last section of the Act providing for repeal of the earlier Ordinance and savings.

26. The foregoing is a brief resume of the provisions of Act No. 33 of 1993, the constitutional validity of which has to be examined in the light of the grounds of challenge.

The meaning of the word 'vest' in Section 3 and the kind of vesting contemplated thereby, the effect of vesting including abatement of all pending suits and legal proceedings, according to Section 4, the power of Central Government to direct vesting of the area or any part thereof in another 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 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 Darbhanga2 it was pointed out that where the dominant purpose of the Act was that of transference to the State of the interests of the proprietors and tenure-holders of the land, the pith and substance of the legislation was the transference of ownership to the State Government and it was an ,acquisition" Act. In Deputy Commissioner and Collector v. Durga Nath Sarma3 Bachawat, J. pointed out that a law for permanent acquisition of property is not a law for promotion of public health etc. since only the taking of temporary possession of private properties can be regarded as a law for promotion of public health.

2 1952 SCR 889: AIR 1952 SC 252 3 (1968) 1 SCR 561 : AIR 1968 SC 394 397

30. It is significant to bear in mind that Entry 42, List III, as it now exists, was substituted by the Constitution (Seventh Amendment) Act to read as under:

"Acquisition and requisitioning of property." Before the Constitution (Seventh Amendment) Act, the relevant entries read as follows:

List I, Entry 33:

"33. Acquisition or requisitioning of property for the purposes of the Union." List II, Entry 36:

"36. Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of Entry 42 of List Ill." List III, Entry 42:

"42. Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose, is to be determined, and the form and the manner in which such compensation is to be given." By the amendment so made, Entry 42, List III reads as extracted earlier while Entry 33, List I and Entry 36, List 11 have been omitted. The comprehensive Entry 42 in List III as a result of the Constitution (Seventh Amendment) Act leaves no doubt that an acquisition Act of this kind falls clearly within the ambit of this entry and, therefore, the legislative competence of Parliament to enact this legislation cannot be doubted. This ground of challenge is, therefore, rejected.

Secularism, Right to Freedom of Religion and Right to Equality

31. It would be appropriate now to consider the attack based on secularism which is a basic feature of the Constitution, with the two attendant rights. The argument is that the Act read as a whole is anti-secular being slanted in favour of the Hindu community and against the Muslim minority since it seeks to perpetuate demolition of the mosque which stood on the disputed site instead of providing for the logical just action of rebuilding it, appropriate in the circumstances. It is urged that Section 4(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 Section 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 398 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 7-1-1993 which enables the Hindus to exercise the right of worship of some kind in the disputed site keeping the Muslims totally excluded from that area and this discrimination can be perpetuated to any length of time by the Central Government. The provision in Section 7, it is urged, has the potential of perpetuating this mischief.

Reference was also made to Section 8 to suggest that it is meaningless since the question of ownership over the disputed site remains to be decided and with the abatement of all pending suits and legal proceedings, there is no mechanism by which it can be adjudicated. The objection to Section 8 is obviously in the context of the disputed area over which the title is in dispute and not to the remaining area specified in the Schedule to the Act, ownership of which is not disputed. The validity of acquisition is also challenged by others including those who own some of the acquired properties and in whose case the title is not disputed. Their contention is that acquisition of their property, title to which is undisputed, is unnecessary.

Parties to the pending suits which have abated, other than the Sunni Central Wakf Board, have also challenged the validity of the Act, even though on other grounds.

Violation of Articles 14, 25 and 26 also is alleged on these grounds. This discussion, therefore, covers these grounds.

32. For a proper consideration of the challenge based on the ground of secularism, it is appropriate to refer to the concept of secularism and the duty of the courts in construing a statute in this context.

33. The polity assured to the people of India by the Constitution is described in the Preamble wherein the word 'secular' was added by the 42nd Amendment. It highlights the fundamental rights guaranteed in Articles 25 to 29 that the State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion of their own choice. In brief, this is the concept of secularism as a basic feature of the Constitution of India and the way of life adopted by the people of India as their abiding faith and creed. M.C. Setalvad in Patel Memorial Lectures 1965, on secularism, referring to the Indian concept of secularism, stated thus:

"The coming of the partition emphasised the great importance of secularism.

Notwithstanding the partition, a large Muslim 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 fo r independent India, under which all religions could enjoy equal freedom and all citizens equal rights, and which could weld together into one nation the different religious communities, became inevitable.

(at pages 481-82) 399 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 truly secular State. (at page 485) 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 ret