On November 15, 2019, I wrote a piece for the Open Magazine titled “The Eternity of the Deity” critiquing the Supreme Court’s Ayodhya verdict specifically for the manner in which Roman and English jurisprudence was employed to vest a Hindu Deity with legal personage. I had argued in the piece that had the Court drawn from Indic legal thought, it would have arrived at a better-informed conclusion through indigenous and less convoluted means which would have done justice to the concept of personification of a Hindu Deity as well as to the adjudication of the rival title claims over the then disputed property in the case. I had also questioned the rationale behind recognising the juristic personality of the Deity and denying the same character to the Holy Site, which is believed to be the birthplace of the Deity and serves as His Abode.

A patient reading of the verdict may lead one to reasonably conclude that it appears to be directed at balancing rival sentiments to further the Court’s “commitment to secularism under the Indian Constitution”, instead of doing justice to rival claims on the rigorous anvils of facts, law and logic. This is evident from the verdict’s take on the Places of Worship (PoW) Act, 1991. What is the basis of this opinion? Let’s understand the context of the verdict.

The case before the Court was a batch of first appeals in a batch of title suits from the decree and judgement dated September 30, 2010 of a three-Judge Bench of the Allahabad High Court. In stark contrast, the PoW Act is a statute which is designed to, as the Preamble of the Act states, “prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947…”. This object is codified in Sections 3 and 4 of the Act subject to certain exceptions identified in Section 4. Broadly speaking, this legislation stands in the way of reclamation of religious sites of one community which, it believes, are occupied by another.

While the Act merits a detailed stand-alone analysis in a separate post or series of posts, what is evident from Section 5 is that it expressly provides that the legal proceedings in relation to the Shri Ramjanmabhoomi shall not be affected by any provision of the Act. The Court takes note of this at the fag end of Paragraph 80 of the judgement. Clearly, the legal consequence of the exception under Section 5 was to leave the then pending legal proceedings with respect to the Site at Ayodhya untouched and uninfluenced by the express provisions of the PoW Act or its purported “secular” import. In light of this, there was no need to discuss the Act in the context of Shri Ramjanmabhoomi since it was meant to be adjudicated on the basis of established legal principles which apply to title suits. And yet, the Court deemed it fit to discuss the Act in over ten pages with the central thrust being the Constitution’s commitment to “secularism”.

The ostensible reason for the Court’s discussion of the Act is captured in Paragraph 84 of the Judgement wherein the Court has extracted what it believes were the observations of Justice D. V. Sharma who was part of the three-Judge Bench which delivered the Allahabad HC’s verdict in 2010. Extracted below are the said so-called “observations” of Justice Sharma which the Supreme Court deemed fit to deal and differ with:

“1 (c). Section 9 is very wide. In absence of any ecclesiastical Courts any religious dispute is cognizable, except in very rare cases where the declaration sought may be what constitutes religious rite. Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognized before coming into force of the Act.”

The question that arises is whether these were indeed the observations of Justice Sharma. To be sure, I again went through Justice Sharma’s 1130-Page judgement in O.O.S.No.4 of 1989 titled The Sunni Central Board of Waqfs U.P., Lucknow and others Vs. Gopal Singh Visharad and others. Those who are interested in reading the judgements of each of the three Judges of the Allahabad High Court along with the annexures and documents referred to by them can access them here, a page created by the Allahabad HC exclusively for the 2010 verdict.

Coming back to Justice Sharma’s “observations”, the portion reproduced by the Supreme Court is indeed part of Justice Sharma’s discussion on the scope of suits of civil nature which may be entertained by Courts under Section 9 of the CPC. However, that specific portion which the Constitution Bench has reproduced was not delivered by Justice Sharma but was, in fact, an extract from an earlier Supreme Court judgement which Justice Sharma had relied upon and extracted. Here’s proof of that.

On Page 121 in Volume 4 of Justice Sharma’s judgement (link here), the issue which Justice Sharma examined was whether the fundamental rights of a community under Article 25 to protect and preserve the core of its faith can be asserted through civil suits under Section 9, which he answered in the affirmative. Justice Sharma specifically held as follows:

“The fact that Ram Janambhumi is an integral part of Hindu Religion and the right to worship there is a fundamental right of the Hindu religion and can be enforced through a suit can be clearly made out through a number of decisions of the Hon’ble Supreme Court.”

Subsequently, Justice Sharma went on to cite relevant case law, one of which was as follows

“RELEVANT CASE LAW

(i) 1995 Supplementary (4) SCC, Page 286 – Most Rev. P.M.A. Metropolitan and Others Vs. Moran Mar Marthoma and Another, Para 43 at Page 327 and Para 89, Page 361 – the Civil Courts have jurisdiction to entertain the suits for violation of rights guaranteed under Article 25 and 26 of the Constitution of India. The expression ‘civil nature” used in Section IX of the Civil Procedure Code is wider than even Civil Proceedings and thus extends to such religious matters which have civil consequences.

43. In reading Section 9 widely and construing it expansively the jurisdiction to entertain a suit for declaration whether the Church was episcopal or congregational and whether the appellants could have been ordained by the Patriarch when it was contrary to the earlier decision given by this Court that the ordination was required to be approved by Synod, the court is not being asked to adjudicate on faith but whether the exercise of right in respect of faith was valid. The Grace no doubt comes from Patriarch and on that there is no dispute but whether the Grace came in accordance with the Canon or the Constitution is certainly a matter which would fall within Section 9 C.P.C. Status and office are no doubt different but what was challenged is not the status or faith in Patriarch but the exercise of right by Patriarch which interfered with the Office of Cathelico held validly. Apart from it, as stated earlier, after coming into force of the Constitution Article 25 guarantees a fundamental right to every citizen of his conscience, faith and belief, irrespective of cast, creed and sex, the infringement of which is enforceable in a court of law and such court can be none else except the civil courts. It would be travesty of justice to say that the fundamental right guaranteed by the constitution is incapable of enforcement as there is no court which can take cognisance of it. There is yet another aspect of the matters that Section 9 debars only those suits which are expressly or impliedly barred. No such statutory bar could be pointed out. Therefore, the objection that the suit under Section 9 C.P.C. was not maintainable cannot be accepted.

89. The conclusions thus reached are: 1. (a) The civil courts have jurisdiction to entertain the suits for violation of fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India.

(b) The expression ‘civil nature’ used in Section 9 of the Civil Procedure Code is wider than even civil proceedings, and thus extends to such religious matters which have civil consequence.

(c) Section 9 is very wide. In absence of any ecclesiastical courts any religious dispute is cognizable, except in very rare cases where the declaration sought may be what constitutes religious rite. Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognised before coming into force of the Act.

3. The following findings in Moran Mar Basselious (supra) have become final and operate as res judicata:-

(a). The Catholicate of the East was created in Malankara in 1912.

(b). The Constitution framed in 1934 by Malankara Association is valid.

(c). The Catholicos werenot heretics nor they had established separate church.

(d). The meeting held by Patriarch Group in 1935 was invalid.

4 (a). The effect of the two judgments rendered by the Appellate Court of the Royal Court and in Moran Mar Basselios (supra) by this Court is that both Catholicos and Patriarch Group continue to be members of the Syrian Orthodox church.

(b) The Patriarch of Antioch has no temporal powers over the churches.

(c) Effect of the creation of Catholicate at Malankara and 1934 Constitution is that the patriarch can exercise spiritual powers subject to the Constitution.

(d) The spiritual powers of the patriarch of Antioch can be exercised by the Catholico in accordance with the Constitution.

5. (a) The Hudaya Canon produced by the Patriarch is not the authentic version.

(b) There is no power in the Hudaya Canon to excommunicate Catholicos.

6. The ex-communication of the Catholicos by the Patriarch was invalid.

7. All churches, except those which are of Evangelistic Association or Simhasna or St. Mary are under spiritual and temporal control of the Malankara Association in accordance with 1934 Constitution.”

The following facts emerge from the above:

1. The portion attributed to Justice Sharma by the Constitution Bench was, in fact, an extract from Paragraph 89 of a 1995 Supreme Court judgement in Most Rev. P.M.A. Metropolitan and Others Vs. Moran Mar Marthoma and Another, which the Constitution Bench has erroneously attributed to Justice Sharma;
2. Importantly, the thrust of Justice Sharma’s analysis was the scope of Section 9 of the CPC and not the Places of Worship (Special Provisions) Act, 1991.

This is something that could have been easily verified and addressed by the Constitution Bench, which takes us to the following questions:

1. What was the Constitution Bench’s intention behind a discussion on the Places of Worship Act (Special Provisions) Act, 1991 in the context of the Shri Ramjanmabhoomi case when the Act expressly states that it does not apply to the dispute? Was the intention behind the Bench’s discussion to shield the Act from potential challenges on grounds of unconstitutionality?
2. Does the Bench’s discussion on the Act have any legally binding character? In other words, is it part of the Court’s ratio decidendi or is it obiter dicta?
3. Is the Bench’s discussion on the Act legally and constitutionally tenable?

I will try and address these questions in the next few posts.