Petitioner

a. Whether the Supreme Court, in a Writ Jurisdiction can decide disputed questions of facts.

Natuere and scope of writ jurisdiction

But the same discretion is not available with the Supreme Court under Art. 32 as far as the violation
of fundamental rights are concerned. Therefore once the Supreme Court is moved on account of
violation of fundamental rights, it cannot refuse to entertain the writ petition and the same is likely
to be disposed of on merits.

Kavalappara Kottarathil ... vs The State Of Madras And Others(And ... on 4 March, 1959

Clause (2) of Art. 32 confers power on this Court to issue directions or orders or writs of
various kinds referred to therein. This Court may say that any particular writ asked for is
or is not appropriate or it may say that the petitioner has not established any
fundamental right or any breach thereof and accordingly dismiss the petition. In both
cases this Court decides the petition on merits. But we do not countenance the
proposition that, on an application under Art. 32, this Court may decline to entertain the
same on the simple ground that it involves the determination
of disputed questions of fact or on any other ground. If we were to accede to the
aforesaid contention of learned counsel, we would be failing in our duty as the custodian
and protector of the fundamental rights. We are not unmindful of the fact that the view
thKaat this Court is bound to entertain a petition under Art. 32 and to decide the same
on merits may encourage litigants to file many petitions under Art. 32 instead of
proceeding by way of a suit. But that consideration cannot, by itself, be a cogent
reason for denying the fundamental right of a person to approach this Court for the
enforcement of his fundamental right which may, prima facie, appear to have been
infringed. 'Further, questions of fact can and very often are dealt with on affidavits. In
Chiranjitlal Chowdhuri's case (1) this Court did not reject the petition in limine on the
ground that it required the determination of disputed questions of fact as to there
being other companies equally guilty of mismangement. It went into the facts on the
affidavits and held, inter alia, that the petitioner had not discharged the onus that lay on
him to establish his charge of denial of equal protection of the laws. That decision was
clearly one on merits and is entirely different from a refusal to entertain the petition at
all. In Kathi Raning Rawat v. The State of Saurashtra (2) the application was adjourned in
order to give the respondent in that case an opportunity to adduce evidence before this
Court in the form of an affidavit. An affidavit was filed by the respondent setting
out facts and figures relating to an increasing number of incidents of looting, robbery,
dacoity, nose cutting and murder by marauding gangs of dacoits in certain areas of the
State in support of the claim of the respondent State that " the security of the State and
public peace were jeopardised and that it became impossible to deal with the offences
that were committed in different places in separate courts of law expeditiously ". This
Court found no difficulty in dealing with that application on evidence adduced by
affidavit and in upholding the validity of the Act then under challenge. That was also a
decision on merits although there were disputed questions of fact regarding the
circumstances in which the impugned Act came to be passed. There
were disputed questions of fact also in the case of Ramkrishna Dalmia v. Shri Justice S.
R. Tendolkar (3). The respondent State relied on the affidavit of the Principal Secretary
to the Finance Ministry setting out in detail the circumstances which lead to the issue of
the impugned notification and the matters (1) [1950] S.C.R. 869, 900. (2) [1952] S.C.R.
435. (3) [1959] S.C.R. 279.

Smt. Ujjam Bai vs State Of Uttar Pradesh on 28 April, 1961

In short, this decision recognized the comprehensive jurisdiction of this Court under Art.
32 of the Constitution and gave it full effect without putting any artificial limitations
thereon.
 Whatever may be the stage at which this Court is approached this Court may in its
discretion, if the question involved is one of jurisdiction or a cons- truction of a
provision, decide the question and enforce the right without waiting till the procedure
prescribed by a law is exhausted; but if it finds that questions of fact or mixed questions
of fact and law are involved, it may give an opportunity to the party, if he agrees, to
renew the application after he has exhausted his remedies under the Act, or, if he does
not agree, to adjourn the petition till after the remedies are exhausted.

 G. Nageswara Rao v. A. P. S. K. T. Corporation, 1959 Supp (1) SCR 319: AIR 1959 SC 308, 
The argument ab-inconvenienti does not appeal to me. As it is the duty of this Court to
enforce a fundamental right of a party if any authority has infringed his right,
considerations based upon inconvenience are, of no relevance. it is suggested that if the
jurisdiction of this Court is not restricted in the manner indicated, this Court will be
flooded with innumerable petitions. Apart from the fact that this is not a relevant
circumstance, a liberal interpretation of Art. 32 has not had that effect during the ten
years of this Court's existence, and I do not see any justification for such an
apprehension in the future. It is further said that if a wider interpretation is given
namely, that if this Court has to ascertain in each case Whether a. statutory authority
has infringed a, fundamental right or not, it will have to decide complicated questions of
fact involving, oral and documentary evidence, and the machinery provided under Art.
32 of the Constitution is not adequate to discharge that duty satisfactory. This again is
an attempt to cloud the issue. If the jurisdiction is there and there are difficulties in the
way, this Court will have to evolve by convention or otherwise some procedure to avoid
the difficulties. A similar argument of inconvenience was raised in Kavalappara
Kottarathil Kochuani Moopil Nayar v. State of Madras (1) and was negatived by this
Court. This Court evolved a procedure to meet some of the difficult situations that might
arise in particular cases. That apart, this Court also may evolve or mould further rules of
practice to suit different contingencies. If a party comes to this Court for enforcement of
a fundamental right the existence whereof depends upon proof of facts and the said
party has not exhausted the remedies available to him by going through the hierarchy of
tribunal created by a particular Act, this Court, if the party agrees, may allow him to
withdraw the petition with liberty to file it at a later stage, or, if the party does not
agree, may adjourn it Sine die till after the remedies are exhausted. If, on the other hand
the party comes here after exhausting his remedies and after the tribunals have given
their finding's of fact, this Court may ordinarily accept the findings of fact as is does in
appeals under Art. 136 of the Constitution. If the party complains that the order made
against him by a tribunal is based upon a wrong construction of the provisions of a
statute, this Court may ascertain whether on a correct interpretation of . the statute, the
petitioner's fundamental right has been violated. There may be many other situations,
but I have no doubt (1) [1959] Supp.

Gulabdas & Company & Anr vs Assistant Collector Of Customs AIR 1957 SC
733, 737
This petition involves question of enforncement of fundamental rights for which purpose the
petitioners have the guaranteed right to move this court by appropriate proceedings
under Art. 32 of the Constitution.
The contention that the impugned orders are manifestly erroneous, because 'crayons'
have been treated as 'coloured pencils' is not a contention which can be gone into on an
application under Art. 32 of the Constitution. It has no. bearing on the question of the
enforcement of a fundamental right, nor can the question be decided without first
determining what constitutes the distinction between a 'coloured pencil' and as 'crayon'
a distinction which must require an investigation into disputed facts and materials.

Kailash Nath & Anr vs State Of U.P. & Ors on 22 February, 1957 AIR 1957 SC
790, 792
It has to be mentioned that it is only on facts admitted or taken as proved that the
question of the violation of a fundamental right can be decided by this Court
under Article 32, because when facts are in dispute, the matter has to be enquired into
and decided by proper legal proceedings.

 In Narendra Kumar v. The Union of India (1), Das Gupta, J., observed:

(1) [1960] 2 S.C.R. 375.

" It is reasonable to think that the makers of the Constitution considered the word
'restriction' to be sufficiently wide to save laws ' inconsistent' with Art. 19(1), or ' taking
away the rights' conferred by the Article, provided this inconsistency or taking away was
reasonable in the interests of the different matters mentioned in the clause. There can be
no doubt therefore that they intended the word 'restriction ' to include cases of '
prohibition' also. The contention that a law prohibiting the exercise of a fundamental right
is in no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that
when, as in the present case, the restriction reaches the stage of prohibition special care
has to be taken by the Court to see that the test of reasonableness is satisfied. The greater
the restriction, the more the need for strict scrutiny by the Court. " If so, the State can
establish that a law, though it purports to deprive the petitioner of his fundamental right,
under certain circumstances amounts to a reasonable restriction within the meaning of cl.
(5) of Art. 19 of the Constitution.

In Premier Automobiles Ltd. & Anr. ... vs Union Of India on 24 November,

1971 the supreme court constituted a committee to formulate the fair price
of the vehicles under a petition under article 32 as the fixed price infringed
there fiundamnetal right
 In Board of Trustees, Ayurvedic etc. v. State of Delhi, (1962) Supp 1 SCR 156, 163-
164, from a perusal of the affidavits and the documents filed, it appeared to the
Court that the question (whether the members had paid their subscription in time
and the Board as a Board ceased to exist) being one of disputed facts could not be
satisfactorily decided on materials placed before the Supreme Court, hence the
Court did not adjudicate thereon.

From appeal of the affidavits and the documents filed it appeared to us that the .
question being one of disputed facts could not be satisfactorily decided on the materials
placed before us. us. We, therefore, thought it proper and convenient to consider the
legal points urged as regards the constitutional validity of the impugned Act and of the
action taken thereon.
Talk about article 142

It is submitted that the Supreme court can take un the question of fact under writ

b. Whether the Places of Worship (Special Provisions Act), 1991 is ultra vires the Constitution
and therefore, can it govern reconstruction of temple complex.

In the Ayodhya judgment, the Supreme Court remarked that there

are essentially two purposes the law seeks to fulfil.

“First, it prohibits the conversion of any place of worship. In doing

so, it speaks to the future by mandating that the character of a place
of public worship shall not be altered,” it said its 1,045-page verdict.

Section 3 of the Act, the court noted, bans the conversion of a place
of worship or even a section of it “into a place of worship of a
different religious denomination or of a different segment of the
same religious denomination”.

Section 6 mandates a three-year “imprisonment and a fine for

contravening the provisions of Section 3”.

The Supreme Court observed Saturday the Places of Worship Act

embodies the secular values of the Indian Constitution and strictly
prohibits retrogression. 

“The law is hence a legislative instrument designed to protect the

secular features of the Indian polity, which is one of the basic
features of the Constitution,” the court said.
“Non-retrogression is a foundational feature of the fundamental
constitutional principles of which secularism is a core component,”
the apex court added.

The govt at the time of passing this act presented it as a piece of legislation
protecting the secular fabric of the nation. But what it actually does is to bar
Hindus, Jains, Buddhists in India whose places of worship were desecrated,
destroyed and converted into mosques by Muslim invaders, from reclaiming
their dignity and honour. The act protects mosques in Kashi, Mathura and
innumerable other places in this country that were built on the ruins of Hindu
temples.

The second aspect, the court said, was that the law “seeks to
impose a positive obligation to maintain the religious
character of every place of worship as it existed on 15 August
1947 when India achieved independence from colonial rule”. 

restriction on right to approach Civil or High Court is against the basic principle of rule of law

contended the Act bars “power of remedy” of judicial review and violates the principle of secularism.

Do it here

The law has been enacted to fulfil two purposes. First, it prohibits the conversion of any place of
worship. In doing so, it speaks to the future by mandating that the character of a place of public
worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the
religious character of every place of worship as it existed on 15 August 1947 when India achieved
independence from colonial rule.

M. Siddiq (D) thr. L.Rs. vs. Mahant Suresh Das and Ors. (09.11.2019 - SC) : MANU/SC/1538/2019

The purpose of enacting the law was explained by the Union Minister of Home Affairs on the floor of
the Lok Sabha on 10 September 199132:

We see this Bill as a measure to provide and develop our glorious traditions of love, peace and
harmony. These traditions are part of a cultural heritage of which every Indian is justifiably proud.
Tolerance for all faiths has characterized our great civilization since time immemorial.
These traditions of amity, harmony and mutual respect came under severe strain during the pre-
independence period when the colonial power sought to actively create and encourage communal
divide in the country. After independence we have set about healing the wounds of the past and
endeavoured to restore our traditions of communal amity and goodwill to their past glory. By and
large we have succeeded, although there have been, it must be admitted, some unfortunate
setbacks. Rather than being discouraged by such setbacks, it is our duty and commitment to taken
lesson from them for the future.

(Emphasis supplied)

The Union Minister of Home Affairs indicated that the law which sought to prohibit the forcible
conversion of places of worship was not "to create new disputes and to rake up old controversies
which had long been forgotten by the people...but facilitate the object sought to be achieved"32.
Speaking in support of the cut-off date of 15 August 1947, one of the Members (Shrimati Malini
Bhattacharya) explained33:

But I think this August 15, 1947 is crucial because on that date we are supposed to have emerged as
a modern, democratic and sovereign State thrusting back such barbarity into the past once and for
all. From that date, we also distinguished ourselves...as State which has no official religion and which
gives equal rights to all the different religious denominations. So, whatever may have happened
before that, we all expected that from that date there should be no such retrogression into the past.

M. Siddiq (D) thr. L.Rs. vs. Mahant Suresh Das and Ors. (09.11.2019 - SC) : MANU/SC/1538/2019

The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the
fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of
thought, expression, belief, faith and worship. It emphasises human dignity and fraternity.
Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept
of fraternity.

M. Siddiq (D) thr. L.Rs. vs. Mahant Suresh Das and Ors. (09.11.2019 - SC) : MANU/SC/1538/2019

In providing a guarantee for the preservation of the religious character of places of public worship as
they existed on 15 August 1947 and against the conversion of places of public worship, Parliament
determined that independence from colonial Rule furnishes a constitutional basis for healing the
injustices of the past by providing the confidence to every religious community that their places of
worship will be preserved and that their character will not be altered. The law addresses itself to the
State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the
nation at every level. Those norms implement the Fundamental Duties Under Article 51A and are
hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a
constitutional commitment and operationalized its constitutional obligations to uphold the equality
of all religions and secularism which is a part of the basic features of the Constitution. The Places of
Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism
under the Indian Constitution. The law is hence a legislative instrument designed to protect the
secular features of the Indian polity, which is one of the basic features of the Constitution. Non-
retrogression is a foundational feature of the fundamental constitutional principles of which
secularism is a core component. The Places of Worship Act is thus a legislative intervention which
preserves non-retrogression as an essential feature of our secular values.

M. Siddiq (D) thr. L.Rs. vs. Mahant Suresh Das and Ors. (09.11.2019 - SC) : MANU/SC/1538/2019

The only demand of secularism, as mandated by the Indian Constitution, is that the State must treat
nil religious creeds and their respective adherents absolutely equally and without any discrimination
in all matters under its direct or indirect control Shodh ganag chapter 8

In the leading case of SR Bommai v Union of India (1994) 3 SCC 1 various judges of the Supreme
Court of India individually explained the significance and place of secularism under the Constitution
in very meaningful words sampled below: (i) The Constitution has chosen secularism as its vehicle to
establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of
the Indian political system. (ii) Notwithstanding the fact that the words 'Socialist' and 'Secular' were
added in the Preamble of the Constitution, the concept of secularism was very much embedded in
our constitutional philosophy from the very beginning. By this amendment what was implicit was
made explicit. (iii) Constitutional provisions prohibit the establishment of a theocratic State and
prevent the State from identifying itself with or otherwise favouring any particular religion (iv)
Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal
treatment of all religions. (v) When the State allows citizens to practice and profess their religion, it
does not either explicitly or implicitly allow them to introduce religion into non-religious and secular
activities of the State. The freedom and tolerance of religion is only to the extent of permitting
pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain
of the affairs of the State.

Despite the right to religious freedom, the State can pass laws providing for social welfare and
reform and also to regulate or restrict any secular activity - economic, financial, and political, etc. -
even though it may be traditionally associated with religion - Article 25(2)

To promot harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities - Article 51A(e). 2. To value and
preserve the rich heritage of our composite culture - Article 51A (f)

The right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they
are subject to reform on social welfare by appropriate legislation by the state. The Court therefore
while interpreting Article 25 and 26 strikes a careful balance between matters which are essential
and integral part and those which are not and the need for the State to regulate or control in the
interests of the community — AS Narayana Deeshitalyu v State of Andhrn Pradesh (1996) 9 SCC 548

Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature
of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian
democracy which the founding fathers considered should be the very basis of the Constitution -
Sardar Suedna Taiiir Saifiiddin v State of Bombay AIR 1962 SC 853.

The right to profess, practise and propagate religion does not extend to the right of worship at any
or every place of worship so that any hindrance to worship at a particular place per se will infringe
religious freedom - Ismail Paruqi v Union of India (1994) 6 SCC 360.

The fundamental rights enshrined in the Constitution are inherent and

cannot be extinguished by any constitutional or statutory provision, the
Supreme Court held on Wednesday.

Upholding the power to order a CBI probe without a State’s consent, a

five-judge Constitution Bench, headed by Chief Justice K.G.
Balakrishnan, said: “Any law that abrogates or abridges such rights would
be violative of the basic structure doctrine.”

The Bench was disposing of a batch of cases filed by the West Bengal
government and others, challenging CBI probe ordered by the High Courts
concerned. Since important questions of law were raised in these appeals,
the matter was referred to the Constitution Bench.

“The State has a duty to enforce the human rights of a citizen for fair and
impartial investigation against any person accused of commission of a
cognisable offence, which may include its own officers.

“The power of judicial review being an integral part of the basic structure
of the Constitution, no Act of Parliament can exclude or curtail the powers
of the constitutional courts with regard to the enforcement of fundamental
rights.

“In a federal Constitution, distribution of legislative powers between

Parliament and State Legislatures involves limitation on legislative powers
and, therefore, this requires an authority other than Parliament to ascertain
whether such limitations are transgressed.

“Judicial review acts as the final arbiter not only to give effect to
distribution of legislative powers between Parliament and State
legislatures, it is also necessary to show any transgression by each entity.”

The Bench noted that when the Delhi Special Police Establishment Act
says that subject to the consent by the State, the CBI can take up
 investigation in relation to the crime that was otherwise within the
jurisdiction of the State police, the court could also exercise its
constitutional power of judicial review and direct the CBI to take up the
investigation within the jurisdiction of the State.

The Bench held that the power of the High Court under Article 226 could
not be taken away, curtailed or diluted by Section 6 of the DSPE Act.
Irrespective of there being any statutory provision acting as a restriction on
the powers of the courts, the restriction imposed by Section 6 of the Act on
the powers of the Union could not be read as restriction on the powers of
the constitutional courts.

The Bench directed that all individual cases be placed before the
respective Benches for disposal in terms of this judgment.
On the first proposition: As the Supreme Court has held in a number of cases, such as The
Commissioner, Hindu Religious Endowments vs Lakshmindra Swamiar, Jagannath Ramanuj Das vs
State of Orissa and Sardar Saifuddin vs State of Bombay, the right to worship, and modes of
worship, are protected under Article 25 of the Constitution. Admittedly, it has also
been held that the right to worship doesn’t extend to any and every place. But in Ismail
Faruqui vs Union of India, while holding that a mosque was not an essential and integral part
of the practice of Islam, the Court also held that if a particular place had a “particular
significance for that religion”, access to that place for the purposes of worship would be
protected under Article 25. It is fairly well-established that the inner sanctum/tomb of a
dargah does bear special significance for the followers of the saint in question.
Consequently, the petitioners would have an Article 25 right to offer prayers at the tomb.

Even if the right to offer worship at a particular place does not have the status of a
constitutional right under Article 25, it remains – at the very least – a civil right, enforceable
by a suit. This was the stated position in Das Gupta J.’s judgment in Sardar Saifuddin vs
State of Bombay (pointed out above). According to the learned judge, in construing the
provisions of the Bombay excommunications legislation, “a right to office or property or to
worship in any religious place or a right to burial or cremation is included as a right legally
enforceable by suit.”

Therefore, on legal and constitutional grounds, the PIL should succeed. The petitioners have
a fundamental right to access the tomb and the inner sanctum of the dargah. The
respondents have no equivalent right to exclude them. Contrary to their claims, under the
existing position of law, the Court would not be “interfering in a religious matter” if it was to
order access. Consequently, the Court ought to direct the relevant State authorities to
ensure that the petitioners are allowed to exercise their fundamental rights, including the
right of access and prayer.
Subhramanyam swami
Hence the Ministry of Law should bring an amendment to this Act starting
that it is not applicable to those religious institutions where the question of
fundamental right and faith is claimed.

“I write this letter to seek your direction to the Ministry of Law to effect an
amendment to The Places of Worship (Special Provisions) Act, 1991 and in
particular Section 4 which is offensive and ultra vires of my fundamental
rights under Article 25 and 26 of the Constitution.  This Act was enacted by
the Congress Government headed by Mr. Narasimha Rao. Fundamental
Rights cannot be amended or modified by the Parliament or by any law
passed by Parliament. It cannot have the overriding effect of extinguishing
my fundamental right of freedom of worship under Article 25 and 26 as also
faith enshrined in the Preamble of the Constitution. This makes it a part of
the Basic Structure of the Constitution.

Seldom has one come across a layered perspective from the opponents of the
Temple which strikes a balance between the rights of adherents of faiths
which are indigenous to the civilization and the legitimate interest in
preserving communal harmony.

 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
statute does appear to be neutrally worded on the face if it, the backdrop of its
passing and the exception it carves out make it abundantly clear that it forcibly
forecloses the fundamental rights of indigenous communities at the altar of
“secularism”. The only exception to the application of the statute is expressly
identified in Section 5, namely the hitherto pending legal dispute surrounding
the ownership of the Shri Ramjanmabhoomi in Ayodhya, which ultimately
resulted in a final verdict dated November 9, 2019 of the Supreme Court in
favour of the proponents of the Temple after decades of protracted legal
battles.
However, in the said verdict, for some reason the Supreme Court deemed it fit
to discuss the provisions of the PoW Act despite the non-application of the Act
to the Shri Ramjanmabhoomi dispute. In fact, the Court has taken note of this
legislative fact in Paragraph 80 of its judgement. Clearly, the legal
consequence of the exception under Section 5 was to leave the then pending
legal proceedings with respect to the site in Ayodhya untouched and
uninfluenced by the express provisions of the PoW Act or its purported
“secular” import. In other words, there was no need for the Supreme Court to
discuss the Act in the context of the Shri Ramjanmabhoomi case since it was
meant to be adjudicated on the basis of established legal principles which
apply to property disputes. And yet, the Court discussed the Act in over ten
pages with the central thrust being the Constitution’s commitment to
“secularism”.
This author has demonstrated elsewhere that the Court’s discussion of the statute
and principles of secularism were superfluous to the Shri Ramjanmbhoomi dispute
and therefore lack any precedential value. This naturally takes us to the question of
the intent behind the Court’s discussion of the PoW Act and its purpose, because a
Court of law is not an academic forum and it is not expected to answer questions
which do not arise before it for its adjudication.

Perhaps, it could be argued that the intent behind the Court’s discussion was to
dissuade any future constitutional challenge to the PoW Act given the impediment it
poses to a just and legal reversion of occupied religious sites which belong to
indigenous faiths and their adherents. If so, would it not be fair and reasonable to
conclude that coloniality has made its presence felt even in recognition and
enforcement of valid legal and fundamental rights? Simply put, the embargo under
the PoW Act on one’s exercise of rights to reclaim one’s place of worship is directly
at loggerheads with rights guaranteed under Articles 25 and 26. Even if a lone
individual asserts the right of reclamation and the rest of the community has either
forgiven, or worse, forgotten, no canon of secularism or principle of fairness or
justice in any civilized jurisdiction can mandate that an individual or a community
must sacrifice her or its right to legally reclaim the nerve centers of civilizational
identity.

Finally, in the backdrop of the ongoing movement against coloniality in various

parts of the world, it must not be forgotten that both the Indian Constitution
and decoloniality put a premium on social justice and there can be no social
justice at the expense of the truth, nor is lasting peace possible until the truth
is demonstrably established, acknowledged and accounted for.

On what was the reference sought? In the 1994 Ismail Faruqui judgment,

Justice Verma (for 3 to 2) made a somewhat strange statement at paragraph
85 that if a mosque can lose title by adverse possession (limitation) or
acquisition, then

“…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 for acquisition by exercise of sovereign or
prerogative power of the state.”

3) never have essential practices been decided on this basis because it was
made clear by a judgment in the Shirur Math case, which said that an
examination of essential practices has to be done in the context of the belief
and practices of that faith;
Deciding essential practice

Since the doctrine of essential practice is directly linked to the extent of

constitutional protection, it is of fundamental importance. The seven-
judge Shirur Math case verdict, followed by several other cases, explains
how an essential practice is determined by courts.

… The learned Attorney-General lays stress upon clause (2)(a) of the

article and his contention is that all secular activities, which may be
associated with religion but do not really constitute an essential part of it,
are amenable to State regulation.

The contention formulated in such broad terms cannot, we think, be

supported. In the first place, what constitutes the essential part of a religion
is primarily to be ascertained with reference to the doctrines of that religion
itself. If the tenets of any religious sect of the Hindus prescribe that
offerings of food should be given to the idol at particular hours of the day,
that periodical ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of sacred texts or
oblations to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or employment of
priests and servants or the use of marketable commodities would not make
them secular activities partaking of a commercial or economic character;
all of them are religious practices and should be regarded as matters of
religion…(subject to public order, health or morality).

The requirement of examining essential practice is mandatory. So much so,

that in the Devaru Temple Case that dealt with untouchability, the court
decided that while Dalits can enter the premises to pray, entry to the inner
sanctum is prohibited because of essential practices which allow only
Gowda Saraswath Brahmins in certain locations of the temple.

It is not disputed that in Faruqui, Justice Verma made no attempt to

examine Islamic beliefs or practices but simply pronounced the status of a
mosque in Islam on his own, as an asserion without proof.  In the reference
case, essential practice was not even examined. Never in the history of the
Supreme Court was an examination of essential practices so shoddily
treated. In his dissent, Justice Nazeer clearly held that this issue of mosques
and essential practice was arrived at “without undertaking comprehensive
examination” – in fact without undertaking any examination at all. When
either side tried to show Islamic tenets for the reference, the Chief Justice
ruled that this argument can be made when (and I assume if) the reference
was made to a larger bench. But no reference was made, so this question
will never be decided.

There are well known religions in India like Buddhism and Jainism, which do not believe in
God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of
beliefs or doctrines that are regarded by those who profess that religion as conducive to their
spiritual well being, but it would not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for its followers
to accept, it might prescribe rituals and observances, ceremonies and modes of worship which
are regarded as integral parts of religion, and these forms and observances might extend even
to matters of food and dress.12 This passage, which has been frequently quoted by judges and
jurists, broadened the protection guaranteed in the Constitution ‘to practice religion’ as given
in article 25

In the Shri Lakshmindra and the Ratilal cases, the Supreme Court of India has given a liberal
approach to the meaning of religion which includes not only faith, belief, doctrines, code of
ethical rules but also rituals, ceremonies and observances done in pursuance of religious
belief, which are regarded conducive to spiritual well being

It is held that the Directive principles are, nevertheless, important. Their importance consists,
as commented by M.C. Setalvad, a former Attorney-General of India, that ”they appear to be
like an instrument of instructions, or general recommendations addressed to all the authorities
in the Union reminding them of the basic principles of the new social and economic order,
which the Constitution aims at building.”22 V. D. Mahajan, Constitutional Law of India,
op.cit. pp p. 301.

Mohammad Hanif Quareshi v. State of Bihar, the The Constitution of India has certain
Directives to the States that they expect to keep in view in the conduct of their policies.

As follow-up to these Directives, some State Governments25 have enacted legislation

banning the slaughter of cows. They claimed that cow sacrifice was customary among Indian
Muslims on Bakr-Id day and the practice was “certainly sanctioned by their religion.”28

He said: We have, however, no material on the record before us which will enable us to say,
in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt
act for a Mussalman to exhibit his religious belief and idea.3

Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638.

. In deciding the question as to whether a given religious practice is an integral part of the
religion or not, the test always would be whether it is regarded as such by the community
following the religion or not. This formula may in some cases present difficulties in its
operation. Take the case of a practice in relation to food or dress. If in a given proceeding,
one section of the community claims that while performing certain rites white dress is an
integral part of the religion itself, whereas another section contends that yellow dress and not
the white dress is the essential part of the religion, how is the court going to decide the
question? Similar disputes may arise in regard to food. In cases where evidence is produced
in respect of rival contentions as to the competing religious practices the court may not be
able to resolve the dispute by a blind application of the formula that the community decides
which practice is an integral part of its religion, because the community may speak with more
than one voice and the formula would, therefore, break down. This question will always have
to be decided by the court and in doing so, the court may have to enquire whether the practice
in question is religious in character and if it is, whether it can be regarded as an integral or
essential part of the religion, and the finding of the court on such an issue will always depend
upon the evidence adduced before it as to the conscience of the community and the tenets of
its religion.49

High court influenced

c. Whether title to the temple complex can be claimed on the basis of religious beliefs.

Respondent

a. Whether the Supreme Court, in a Writ Jurisdiction can decide disputed questions of facts.

b. Whether the Places of Worship (Special Provisions Act), 1991 is ultra vires the Constitution and
therefore, can it govern reconstruction of temple complex.
c. Whether title to the temple complex can be claimed on the basis of religious beliefs.