SC in Review 2019 – Panel 3 Long Brief

Panel 3: Religion and Faith

Panellists:

• Hon’ble Mr. Justice Ashok Bangreppa Hinchigeri
• Jayna Kothari, Senior Advocate, High Court of Karnataka and Supreme Court of India
• Sidharth Chauhan, Assistant Professor, NALSAR

In 2019 the Supreme Court of India confronted longstanding questions pertaining to the role of religion and faith in a secular democracy. In the Ayodhya title dispute, the Court had to delineate the role of faith in a property dispute. A central issue in the case revolved around the evidentiary weight of belief and religious scripture. In the Sabarimala Review Petitions, the Court assessed whether there were grounds to reverse its 2018 judgment, wherein it had declared unconstitutional the Sabarimala Temple’s practice of excluding women of certain age categories. The 2018 judgment had held that the religious custom violated the fundamental right to equality of female worshippers.

On November 9th, the Court delivered its judgment and disposed of the Ayodhya appeals, bringing an end to another chapter in the more than century old dispute. It awarded the disputed site to Shri Ram Virajman, while guaranteeing the U.P. Sunni Waqf Board an alternate site at Ayodhya. On the other hand, the Court has kept the Sabarimala Review Petitions pending, while it settles broader questions relating to women’s access to public religious spaces.

Ayodhya Title Dispute: Since at least the mid-19th century, various parties have been staking competing claims over the site of a 16th century mosque located in Ayodhya, Uttar Pradesh, commonly called Babri Masjid. A large number of Hindus believe it to be the birthplace of Lord Ram – the Shri Ram Janmabhoomi.

The current legal dispute arose out of incidents that took place on the night of December 22nd 1949. A set of Hindu idols were placed under the central dome of Babri Masjid. To control the resultant law and order situation, a Faizabad District Court placed the site under the custodial responsibility of the State on December 29th 1949. The Chairman of the Faizabad Municipal Board took the site under receivership.

Following the 1949 order, three key parties filed suits challenging it:

• In 1959, a Hindu ascetic order called the Nirmohi Akhara filed a suit claiming the order had deprived it of ‘management and charge’ of the disputed site. It claims to have managed the site since as early as the 1400s.
• In 1961, the Uttar Pradesh Sunni Central Board of Waqfs filed its suit claiming that the order wrongfully denied Muslims from realizing their right to pray at the mosque. Further, it claimed exclusive ownership of Babri Masjid.
• In 1989, retired judge Deoki Nandan Agarwala filed a suit on behalf of Sri Ram Virajman (idol) and Sri Ram Janmabhoomi (birthplace), as their legal guardian. The suit adopted a two pronged approach: on the one hand, the litigants claimed exclusive possession, while on the other they asserted that the site itself is a deity with legal rights and hence, cannot be owned by others.

Two years later, some miscreants demolished the Babri Masjid. Despite these incidents, the suits remained pending before the Allahabad High Court for roughly another two decades. Then in September 2010, the High Court delivered its judgment wherein it equally divided the disputed title among the Nirmohi Akhara, the U.P. Sunni Waqf Board and Shri Ram Virajman. The parties immediately appealed the judgment to the Supreme Court.

On August 6th 2019, the Bench comprising Chief Justice Ranjan Gogoi and Justices Sharad Bobde, D.Y. Chandrachud, Ashok Bhushan and Abdul Nazeer began hearing final arguments in the dispute. After a record-setting forty days of oral arguments, the Bench overturned the Allahabad High Court’s 2010 verdict.

In a unanimous per curiam judgment, the Supreme Court awarded the disputed title to the deity Shri Ram Virajman on November 9th 2019. However, it directed possession of the site to temporarily remain with the State receiver, until the Union Government forms a trust to manage the construction of a new Lord Ram temple at the site. The Court also directed the Union to give adequate representation to the Nirmohi Akhara in the trust. Finally, it ordered that the U.P. Sunni Waqf Board be allotted an alternate five-acre site in Ayodhya for the construction of a mosque.

Somewhat in contrast to the Allahabad High Court’s judgment, the Supreme Court’s judgment placed more emphasis on resolving the dispute strictly as a property dispute, namely by adjudicating the issues strictly on the basis of evidence and legal principles. However, this was no easy task, as central to the dispute were arguments founded in faith and belief. Ultimately, in granting reliefs, the Court resorted to its expansive powers under Article 142 to do “complete justice”.

Sabarimala Review Petitions: The Sabarimala Temple is devoted to Lord Ayyappa and located in Pathanamthitta district of Kerala. It prohibits the entry of women in their ‘menstruating years’ (between the ages of 10 and 50 years). Last year on September 28th, a 4:1 majority of the Supreme Court declared this custom unconstitutional. Siding with the Petitioners, the Court held that the custom violated the fundamental rights to equality and freedom of religion of female worshippers.

Following the judgment, widespread protest erupted in the State of Kerala. Soon over 50 review petitions were filed challenging the judgment. Unusually, the Court held hearings in open-court over whether to admit these review petitions. After two days of oral arguments, the Court reserved judgment.

On November 14th 2019, by a narrow 3:2 majority, the Court decided to keep the review petitions pending and refer the overarching constitutional questions to a larger bench. In issuing the referral, the Court observed that benches in other key right to religion cases may in the future make such a referral. Implicit in its observation is the assumption that these other Supreme Court benches may disagree with the 2018 Sabarimala verdict.

Justice R.F. Nariman dissented against the majority opinion, on behalf of himself and Justice D.Y. Chandrachud. In his dissent, he held that the majority failed to stay within the narrow bounds of the Court’s review jurisdiction. Review petitions have very limited grounds and are generally intended to correct obvious factual or legal errors in a judgment. Justice Nariman held that issues pertaining to the future possibility of a referral went beyond the scope of a review petition. Further, he observed that the review petitioners had failed to establish any ground for review. Therefore, he concluded the review petitions ought to have been dismissed.

While the review petitions remain pending, the operation of the 2018 verdict will stay in effect. Women of all ages have the legal right to enter the Sabarimala Temple. However, the Kerala Government has decided against offering protection to women of the prohibited age categories seeking to enter the temple till the review petitions are decided. So, while legally there is no bar against women from entering the temple, in many ways an effective stay is in placed on the verdict.