Summary
By a 2:1 majority, the Supreme Court declined to refer Ismail Faruqui for reconsideration in the pending Ayodhya title appeals. The majority confined the questioned observations about mosques and religious significance to land acquisition, holding them irrelevant to determination of the suits and appeals. It rejected the res judicata objection and directed further hearing of the appeals. Justice S. Abdul Nazeer agreed on res judicata but dissented on reference, considering the essential-practice questions constitutionally significant and the High Court judgment affected by the observations. The title appeals were not decided by this order.
Issues
- Whether the observations in Ismail Faruqui concerning mosques and religious significance required reference for reconsideration.
- Whether res judicata barred the request in the pending title appeals.
- Whether the importance of the litigation required a Constitution Bench reference.
- What remained for determination on the merits of the appeals.
Provisions considered
- Section 11, including Explanation VI, Code of Civil Procedure, 1908The res judicata objection failed because the issues directly and substantially arising in the title suits differed from the acquisition-validity issues in Ismail Faruqui. The dissent agreed with this conclusion. (¶¶ Bhushan J., 63–75, Nazeer J., 1)
Held
- Majority: a judgment must be read as a whole in its factual and legal context. Isolated expressions cannot be treated as a complete statement of law extending beyond the questions actually decided. (¶ Bhushan J., 22–26)
- Majority: the questioned observations in paragraphs 78 and 82 of Ismail Faruqui concerned the claimed immunity of a mosque from compulsory acquisition. They did not establish that a mosque could never be essential to the practice of Islam. The acquisition principle remained qualified where destruction of a place of particular religious significance would extinguish the protected right of worship. (¶ Bhushan J., 34–42, 54–59)
- Majority: the expressions concerning comparative and particular significance were explained in the acquisition context, including the response to the allegation that the acquisition statute favoured one community. They furnished no basis for reconsideration in these title appeals. (¶ Bhushan J., 60–62, 119–120)
- Res judicata: the issues in the title suits were not directly and substantially the issues adjudicated in the earlier constitutional challenge. Only writ petitions had been transferred for decision with the presidential reference; the title suits themselves had not been transferred, and the earlier judgment was not a judgment in those suits. Nazeer J. expressly concurred on this issue. (¶¶ Bhushan J., 65–75, Nazeer J., 1)
- Majority: the questioned observations were irrelevant to deciding the suits and appeals. Whether the High Court’s actual reliance required clarification or correction, and the grounds raised by the parties on the merits, remained matters for hearing in the pending appeals. This reference order did not adjudicate title or dispose of those appeals. (¶ Bhushan J., 92–95, 119, 122)
- Majority: under the Article 145(3) proviso, a reference required a substantial constitutional-interpretation question whose determination was necessary to dispose of the appeal. The importance of the dispute and the cited reference orders did not establish the asserted need for a Constitution Bench to reconsider Ismail Faruqui; these important civil appeals were already before three judges. (¶ Bhushan J., 98–112, 120)
- Nazeer J., dissenting: essentiality required detailed examination of the faith’s doctrines, tenets and beliefs. The challenged conclusion about mosques had been reached without that examination, and the cited passages showed that the observations had permeated the High Court judgment. Reference was warranted to align the approach with Shirur Mutt and the related authorities. (¶ Nazeer J., 12–21, 23–27)
- Nazeer J., dissenting: a larger Bench should consider the required inquiry into religious belief, the relationship between essentiality and integrality, whether Article 25 protects only practices of particular significance and whether constitutional equality and religious freedom permit comparison of faiths’ significance. His proposed placement before the Chief Justice did not constitute the majority direction. (¶ Nazeer J., 28–33)
Result
Reference for reconsideration declined by majority; title appeals directed to be listed for hearing in the week commencing 29 October 2018. Nazeer J. dissented on reference while agreeing that the res judicata objection failed.