M. SIDDIQ (D) THR. LRS. versus MAHANT SURESH DAS AND OTHERS ETC.
[2018] 11 S.C.R. 175, Supreme Court of India, 2018
Outcome: Directions issued
Segment: Issues
are considered integral by the community itself.  Though not
conclusive, this is also one of the facets to be noticed. The practice
in question is religious in character and whether it could be
regarded as an integral and essential part of the religion and if the
court finds upon evidence adduced before it that it is an integral
or essential part of the religion, Article 25 accords protection to
it….”
   (Emphasis supplied)
21. As mentioned above, parties have produced various texts in
Islam in support of their respective contentions.  For the present, we are
concerned with the approach of the Court in concluding questionable
observations without examining the doctrine, tenets and beliefs of the
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religion. The conclusion in paragraph 82 of Ismail Faruqui that “A
mosque is not an essential part of the practice of the religion of Islam
and namaz (prayer) by Muslims can be offered anywhere, even in open”
has been arrived at without undertaking comprehensive examination.
22. Now, the question is whether the impugned judgment has been
affected by the questionable observations in Ismail Faruqui.  A perusal
of the impugned judgment shows that learned advocates appearing for
the parties have repeatedly quoted various paragraphs of Ismail Faruqui
while arguing the case and have also placed strong reliance on the
questionable observations made in Ismail Faruqui.
23. A few paragraphs mentioned at page Nos. 3038-3039, 3061,
3392, 3429 and 3439 of the impugned judgment delivered by Justice
D.V Sharma wherein Ismail Faruqui is quoted have been reproduced
as under:
“ISSUE NO. 19 (d): Whether the building in question could not be
a mosque under the Islamic Law in view of the admitted position
that it did not have minarets?
FINDINGS:
On behalf of defendants it is contended that the building in
question was not a mosque under the Islamic Law. It is not disputed
that the structure has already been demolished on 6.12.1992.
According to Dr. M. Ismail Faruqui and others v. Union of
India and others, case, 1994 (6) SCC 360, the Hon’ble Apex
Court held at para 70 that the sacred character of the mosque
can also be lost. According to the tenets of Islam, minarets are
required to give Azan. There cannot be a public place of worship
in mosque in which Provision of Azan is not available, hence the
disputed structure cannot be deemed to be a mosque.
According to Islamic tenets, there cannot be a mosque without
place of Wazoo and surrounded by a graveyard on three sides.
Thus, in view of the above discussions, there is a strong
circumstance that without any minaret there cannot be any
mosque.  Issue No. 19(d) is decided accordingly, against the
plaintiffs and in favour of the defendants.”
  [Printed volume of the judgment at
  page Nos. 3038-3039]
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [S. ABDUL NAZEER, J.]
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“Defendants further claim that the property in suit was not in
exclusive possession of Muslims right from 1858. It is further
submitted that in view of the possession of Hindus from 1858 and
onwards which is evident from Ext. 15, 16, 18, 19, 20, 27 and 31,
the outer Courtyard was exclusively in possession of Hindus and
the inner Courtyard was not exclusively in possession of Muslims
but also in joint possession of Hindus and Muslims till 1934. Muslims
were dispossessed from the inner Courtyard also in 1934 and
plaintiffs admit that Muslims were dispossessed on 22/
23December 1949 from the inner Courtyard. Thus, on the basis
of Islamic tenets the Muslims claim that the property shall be
construed as a Mosque. In this reference the controversy has
already been set at rest by the Privy Council in the decision of
Masjid Shahid Ganj v. Shiromani Gurudwara Prabandhak
Committee, Amritsar, AIR 1940 PC 116. The aforesaid view has
been approved in Dr. M. Ismail Faruqui v. Union Of India, 1994
(6) SCC 360, Para 70 of the ruling is relevant which reads as
under……”
                             [Printed volume of the judgment at
     page Nos. 3061]
“Sri Jain has relied upon para 78 of Dr. M. Ismail Faruqui and
others v. Union of India and others 1994(6) SCC 360, which is
reproduced as under :
“While offer of prayer or worship is are religious practice, its
offering at every location where such prayers can be offered
would not be
an essential or integral part of such religious
practice unless the place has a particular significance for that
religion so as to form an essential or integral part thereof. Places
of worship of any religion having particular significance for
that religion, to make it an essential or integral part of the religion,
stand on a different footing and have to be treated differently
and move reverentially.”
Sri H.S. Jain, Advocate has further argued that since birth place
of Lord Ram was considered as a place of worship which was
integral part of religious practice of Hindu from times immemorial.
It is deity and it stands on a different footing and have to be treated
reverentially. Sri Jain has further urged that in view of the
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constitutional mandate as provided under Article 25 of the
Constitution this place which was all the time being worshipped
has be treated by this Court as a place of worship because of the
belief of the Hindu based on religious book and religious practice
to be birth place of Lord Ram as the temple was constructed in
the 12th century. It is expedient to say that prior to 12th century
there is evidence that earlier temples were also constructed at
the site. Thus, according to Sri H.S. Jain, Advocate there is
overwhelming evidence to establish the site of Ram Janambhumi
and the Court has to recognize the same. Thus, the suit of the
plaintiffs which causes hindrance for worship of Hindu is liable to
be dismissed on this count as no relief can be granted under Section
42 of the Specific Relief Act, 1877, now Section 34 of the Specific
Relief Act, 1963.”
                                            [Printed volume of the judgment at
      page Nos. 3392]
“LORD RAM AS THE AVATAR OF VISHNU HAVING BEEN
BORN AT AYODHYA AT THE JANMASTHAN IS
ADMITTEDLY THE CORE PART OF HINDU BELIEF AND
FAITH WHICH IS IN EXISTENCE AND PRACTICED FOR
THE LAST THOUSANDS OF YEARS.  THE HINDU
SCRIPTURES ALSOS SANCTIFY IT.  ARTICLE 25 OF THE
CONSTITUTION BEING A FUNDAMENTAL RIGHT
ENSUES ITS PRESERVATION AND NO RELIEF CAN BE
TAKEN BY THE COURT WHICH SEEKS TO RESTRICT
OR ALTOGETHER EXTINGUISH THIS RIGHT.
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.”
                                           [Printed volume of the judgment at
                                                     page Nos. 3429]
“THE RELIGIOUS RIGHT OF HINDUS TO WORSHIP RAM
LALA AT THE JANMASTHAN BECAME CONCRETISED
BEFORE THE CONSTITUTION CAME INTO BEING AND
THE SAME REQUIRES TO BE PROTECTED.
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [S. ABDUL NAZEER, J.]
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It is well-known that the Constitution of India was enacted, i.e.
given to ourselves, w.e.f. 26th January, 1950.  Before it, the right
of Hindus to worship was duly sanctified and recognized by judicial
orders.
In fact, the Supreme Court records in the Ismail Faruqui case
above the contention in paragraph 1.2 of the White Paper of the
Government of India as recorded in Paragraph 9, Page 380, of
the said judgment.  It reads as follows: “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.”
It is further very significant to note that the Muslims for the first
time, after 1949, assert their right howsoever unsustainable, only
in 18th December, 1961.
Therefore, the right of the Hindus to worship at the Rama Janma
Bhumi, continuing since times immemorial as an integral part of
their religious right and faith was also sanctified by judicial orders
from 1949 continuously.  This right has concretised and remains
an integral part of Hindu religion and has to be protected.”
     [Printed volume of the judgment at
     page Nos. 3439]
24. Similarly, in the judgment rendered by Justice Sudhir Agarwal,
Ismail Faruqui has been quoted at page No. 2015 in the printed volume
of the judgment, which is as under:
“3501. Sri Prasad argued that belief of Hindus that Lord
Ram as
incarnation of Vishnu having born at Ayodhya forms an integral
part of Hindu religion which cannot be denied to be practised,
observed and performed by them and refers to Commissioner of
Police & others v. Acharya Jagadishwarananda Avadhuta&
another, (2004) 12 SCC 770 (para 9) and Sri Adi Visheshwara of
Kashi Vishwanath Temple, Varanasi (supra). In order to show
what constitutes public order under Article 25 of the Constitution,
he also placed reliance on Dalbir Singh & others v. State of
Punjab, AIR 1962 SC 1106 (para 8).
3502. Next he submits that applying the doctrine of Eminent
Domain, the place in dispute, having special significance for
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Hindus, cannot be touched at all either by any particular person or
even by State and the provisions of even acquisition would not
apply to it though with respect to the alleged mosque, it has been
already held and observed by the Apex Court that the disputed
building could not be shown to be of any special significance to
Muslims. He refers to Dr. M. Ismail Faruqui and others v. Union
of India & others, (1994) 6 SCC 360 (para 65, 72, 75 and 96);
Acharya Maharajshri Narendra Prasadji Anand prasadji
Maharaj and others v. State of Gujarat & others, (1975) 1
SCC 11. The relief sought by the plaintiff (Suit-4) is barred by
Section 34 Specific Reliefs Act, 1963 and reliance is placed on
Executive Committee of Vaish Degree College, Shamli and
others v. Lakshmi Narain and others, (1976) 2 SCC 58 (para
20 and 27); American Express Bank Ltd. v. Calcutta Steel Co.
and others, (1993) 2 SCC 199(para 22).”
25. After considering Ismail Faruqui, Justice Sudhir Agarwal in
paragraphs 2722 to 2725 has opined as under:
“2722. The Fourth angle: It is a deity which has filed the present
suit for enforcement of its rights. The religious endowment in the
case in hand so far as Hindus are concerned, as they have pleaded
in general, is a place of a peculiar and unique significance for
them and there cannot be any other place like this. In case this
place is allowed to extinguish/extinct by application of a provision
of statutes, may be of limitation or otherwise, the fundamental
right of practicing religion shall stand denied to the Hindus
permanently since the very endowment or the place of religion
will disappear for all times to come and this kind of place cannot
be created elsewhere.
2723. In Ismail Farooqui (supra), Supreme Court has considered
the plea of validity of acquisition of land under Land Acquisition
Act that once a waqf of mosque is created, the property vests in
almighty and it always remain a waqf hence such a property cannot
be acquired. While negativing this plea, the Apex Court said that
a plea in regard to general religious purposes cannot be said to be
an integral part of religion which will deprive the worshippers of
the right of worship at any other place and therefore, such a
property can be acquired by the State. However, the position would
be otherwise if the religious property would have been of special
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [S. ABDUL NAZEER, J.]
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significance and cannot be one of several such kind of properties.
It will be useful to reproduce the relevant observation in this regard:
“78. It appears from various decisions rendered by this Court,
referred later, that subject to the protection under Articles 25
and 26 of the Constitution, places of religious worship like
mosques, churches, temples etc. can be acquired under the
State’s sovereign power of acquisition. Such acquisition per se
does not violate either Article 25 or Article 26 of the Constitution.
The decisions relating to taking over of the management have
no bearing on the sovereign power of the State to acquire
property.”
“82. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious
practice unless the place has a particular significance for that
religion so as to form an essential or integral part thereof. Places
of worship of any religion having particular significance for
that religion, to make it an essential or integral part of the religion,
stand on a different footing and have to be treated differently
and more reverentially.”
2724. The above observations show if the religious endowment is
of such nature, which is of specific significance or peculiar in
nature, could not have been found elsewhere, the acquisition of
such property by the Government will have the
effect of depriving
the worshippers their right of worship under Article 25 of the
Constitution and such an acquisition even under the statutory
provision, cannot be permitted. We find sufficient justification to
extend this plea to the statute of limitation also, inasmuch as, if the
statute pertaining to acquisition cannot be extended to a religious
place of special significance which may have the effect of
destroying the right of worship at a particular place altogether,
otherwise the provision will be ultra vires, the same would apply
to the statute of limitation also and that be so, it has to be read that
the statute of limitation to this extent may not be availed where
the debutter’s property is of such a nature that it may have the
effect of extinction of the very right of worship on that place
which is of peculiar nature and specific significance. This will be
infringing the fundamental right under Article 25 of the Constitution.
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2725. In fact this reason could have been available to the plaintiffs
(Suit-4) also had it been shown by them that the mosque in question
for them was a place of special significance but this has already
been observed by the Apex Court in respect to this particular
mosque that like others it is one of the several mosques and by
acquisition of the place it will not have the effect of depriving
such fundamental right of Muslims. It is always open to them to
offer prayer at any other place like they could have done here but
Hindus are not placed on similar footing. According to Hindus,
this is a place of birth of lord Rama and that be so, there cannot
be any other place for which such belief persists since time
immemorial. Once this land is allowed to be lost due to the acts of
persons other than Hindus, the very right of this Section of people,
as protected by Article 25, shall stand destroyed. This is another
reason for not attracting the provisions of limitation in the present
case.”
26. Similarly, Justice D.V. Sharma has stated thus:
“A SOVEREIGN GOVERNMENT EVEN BY EXERCISING
THE POWER OF EMINENT DOMAN CANNOT EXERCISE
THE POWER OF ACQUISITION OF LAND OR PROPERTY
WHICH EXTINGUISHES THE CORE OF THE FAITH OR
THE PLACE OR THE INSTITUTION WHICH IS HELD TO
BE SACRED.
What clearly follows is that a sovereign Government cannot
extinguish the core of the Hindu religion which is the Ram
Janambhumi, let alone the same be extinguished through a suit, by
transferring
the same to some other party in this case the plaintiff
thereby ensuring that the said fundamental right to worship at the
Ram Janambhumi is extinguished forever.
RELEVANT CASE LAW…
 (b) Dr. M. Ismail Faruqui and Others v. Union of India &
Others, 1994 (6) SCC Para 76, Page 416 – Acharya Maharajshri
Narendra Prasadji Anand Prasadji Maharaj v. State of
Gujarat, (1976) 2 SCR 317 at pages 327-328: (AIR 1974 SC
2098 at p. 2103), has held :
“One thing is, however, clear that Article 26 guarantees inter
alia the right to own and acquire movable and immovable
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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property for managing religious affairs. This right, however,
cannot take away the right of the State to compulsorily acquire
property ......If, on the other hand, acquisition of property of a
religious denomination by the State can be proved to be such
as to destroy or completely negative its right to own and acquire
movable and immovable property for even the survival of a
religious institution the question may have to be examined in a
different light.”
Para 82 - A mosque is not an essential part of the practice of
religion of Islam and Namaz by Muslims can be offered anywhere,
even in the open. Accordingly, its acquisition is not prohibited by
the provisions in the Constitution of India. Obviously, the acquisition
of any religious place is to be made only in unusual and
extraordinary situations for a larger national purpose. Keeping in
view that such acquisition should not result in extinction of the
right to practice the religion if the significance of that place be
such.
Note (i) Ram Janmasthan in Ayodhya where Ram Lala is Virajman
is a place of religious significance as described in the above
judgment. If the sovereign authority, under the power of eminent
domain, cannot acquire it, can a plea at the instance of plaintiffs
who are private persons in Suit No. 4 be entertained, upholding of
which would lead to denial of such sacred place altogether to the
Hindus.
Note (ii) At page 413, Para 65 of Ismail Faruqui –
No argument
made about a mosque of special significance which forms an
essential part of Islam. Hence, no question raised about Baburi
Mosque as integral to Islam and it has not been raised in the plaint
here or evidence laid or any contention ever made that the said
mosque was of any significance to the practice of Islam as a
religion…….”
                             [Printed volume of the judgment at
     page Nos.3438-3439]
“FINDINGS ….. Hon’ble Apex Court upheld the validity of
provisions of Acquisition of Certain Area at Ayodhya, 1993 in Dr.
Ismail Faruqui case (supra) and held that the Central Government
can acquire any place of worship. At para- 78 Apex Court held
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that the place of birth has a particular significance for Hindus and
it should be treated on different footing, which reads as under:-
“78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially.”
On behalf of Hindus it is urged that the plaintiffs are not entitled
for the relief claimed and as such the relief is barred by the
provisions of Section 42 of the Specific Relief Act, 1877 which is
at par with Section 34 of the Specific Relief Act,1963 on the ground
that they have superior fundamental rights. Contentions of Hindus
are as under:
“The Hindus have superior fundamental right than the Muslims
under articles 25 & 26 of the Constitution of India for the reasons
that performing customary rituals and offering service worship to
the lord of universe to acquire merit and to get salvation as such it
is integral part of Hindu Dharma & religion in view whereof it is
humbly submitted that the instant suit is liable to be dismissed with
exemplary cost: …
2. In M. Ismail Faruqui (Dr.)
v. Union of India, (1994) 6 SCC
360, the Hon’ble Supreme Court has held that the Right to Practise,
Profess and Propagate Religion guaranteed under Article 25 of
the Constitution does not extend to the Right of Worship at any
and every place of worship so that any hindrance to worship at a
particular place per se may infringe the religious freedom
guaranteed under Articles 25 and 26 of the Constitution of India.
The protection under Articles 25 and 26 is to religious practice
which forms integral part of practice of that religion. While offer
of prayer or worship is a religious practice, its offering at every
location where such prayers can be offered would not be an
essential or integral part of such religious practice unless the place
has a particular significance for that religion so as to form an
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [S. ABDUL NAZEER, J.]
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essential or integral part thereof. Places of worship of any religion
having particular significance of that religion to make it an essential
or integral part of the religion stand on a different footing and
have to be treated differently and more reverentially. Relying on
said judgment it is submitted that Sri Ramjanamsthan has particular
significance for the Hinduism as visiting and performing customary
rites confer merit and gives salvation it is firm belief of the Hindus
based on their sacred Divine Holy Scriptures which belief neither
can be scrutinized by any Court of Law nor can be challenged by
the persons having no faith in Hinduism as this is conscience of
the Hindus having special protection under Article 25 of the
Constitution of India. Relevant paragraph 77 and 78 of the said
judgment read as follows:
77. It may be noticed that Article 25 does not contain any
reference to property unlike Article 26 of the Constitution. The
right to practise, profess and propagate religion guaranteed
under Article 25 of the Constitution does not necessarily include
the right to acquire or own or possess property. Similarly this
right does not extend to the right of worship at any and every
place of worship so that any hindrance to worship at a particular
place per se may infringe the religious freedom guaranteed
under Articles 25 and 26 of the Constitution. The protection
under Articles 25 and 26 of the Constitution is to
religious
practice which forms an essential and integral part of the religion.
A practice may be a religious practice but not an essential and
integral part of practice of that religion.
78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious
practice unless the place has a particular significance for that
religion so as to form an essential or integral part thereof. Places
of worship of any religion having particular significance for
that religion, to make it an essential or integral part of the religion,
stand on a different footing and have to be treated differently
and more reverentially.
3. In M. Ismail Faruqui (Dr.) v. Union of India (supra) the
Hon’ble Supreme Court held that a mosque is not an essential
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part of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered any where even in open. The Right to
Worship is not at any and every place so long as it can be practised
effectively, unless the Right to Worship at a particular place is
itself an integral part of that right. Relying on said ratio of law it is
submitted that without offering prayer at Sri Ramjanamsthan
described as Babri mosque in the plaint it can be practised
somewhere else but offering prayer instead of Sri Ramjanamsthan
at any other place cannot be practised because the merit which is
obtained by worshiping at the birth place of Sri Ram cannot be
obtained by doing so at other places and it will be contrary to the
holy Divine Sacred Scripture of the Hindus and will cause extinction
of a most sacred shrine of the Hindus. Relevant paragraph Nos.
80 to 87 of the said judgment read as follows:
80. It has been contended that a mosque enjoys a particular
position in Muslim Law and once a mosque is established and
prayers are offered in such a mosque, the same remains for all
time to come a property of Allah and the same never reverts
back to the donor or founder of the mosque and any person
professing Islamic faith can offer prayer in such a mosque and
even if the structure is demolished, the place remains the same
where the namaz can be offered. As indicated hereinbefore,
in British India, no such protection was given to a mosque and
the mosque was subjected to the
provisions of statute of
limitation thereby extinguishing the right of Muslims to offer
prayers in a particular mosque lost by adverse possession over
that property.
81. Section 3(26) of the General Clauses Act comprehends
the categories of properties known to Indian Law. Article 367
of the Constitution adopts this secular concept of property for
purposes of our Constitution. A temple, church or mosque etc.
are essentially immovable properties and subject to protection
under Articles 25 and 26. Every immovable property is liable
to be acquired. Viewed in the proper perspective, a mosque
does not enjoy any additional protection which is not available
to religious places of worship of other religions.
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [S. ABDUL NAZEER, J.]
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82. The correct position may be summarised thus. Under the
Mahomedan Law applicable in India, title to a mosque can be
lost by adverse possession (See Mulla’s Principles of
Mahomedan Law, 19th Edn., by M. Hidayatullah — Section
217; and Shahid Ganj v. Shiromani Gurdwara. If that is the
position in law, 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
from acquisition by exercise of the sovereign or prerogative
power of the State. A mosque is not an essential part of the
practice of the religion of Islam and namaz (prayer) by Muslims
can be offered anywhere, even in open. Accordingly, its
acquisition is not prohibited by the provisions in the Constitution
of India. Irrespective of the status of a mosque in an Islamic
country for the purpose of immunity from acquisition by the
State in exercise of the sovereign power, its status and immunity
from acquisition in the secular ethos of India under the
Constitution is the same and equal to that of the places of
worship of the other religions, namely, church, temple etc. It is
neither more nor less than that of the places of worship of the
other religions. Obviously, the acquisition of any religious place
is to be made only in unusual and extraordinary situations for a
larger national purpose keeping in view that such acquisition
should not result in
extinction of the right to practise the religion,
if the significance of that place be such. Subject to this condition,
the power of acquisition is available for a mosque like any
other place of worship of any religion. The right to worship is
not at any and every place, so long as it can be practised
effectively, unless the right to worship at a particular place is
itself an integral part of that right…..”
                                           [Printed volume of the judgment at
     page Nos.3454-3458]
27. Hence, it is clear that the questionable observations in Ismail
Faruqui have certainly permeated the impugned judgment. Thus, the
impugned judgment can be claimed to be both expressly and inherently
affected by the questionable observations made in Ismail Faruqui.
Further, Ismail Faruqui prima facie leads a different approach regarding
the application of essential and/or integral test which also needs to be
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resolved as a matter of constitutional significance. In my view, Ismail
Faruqui needs to be brought in line with the authoritative pronouncements
in Shirur Mutt and other decisions referred to in paragraphs 14 to 18
and 20 of this judgment.
28. The importance and seriousness of the matter can be better
understood by the observations made by Justice S.U. Khan in the
impugned judgment itself, in the following words:-
“Here is a small piece of land (1500 square yards) where angels
fear to tread.  It is full of innumerable land mines.  We are required
to clear it.  Some very sane elements advised us not to attempt
that.  We do not propose to rush in like fools lest we are blown.
However, we have to take risk.  It is said that the greatest risk in
life is not daring to take risk when occasion for the same arises.
Once angels were made to bow before Man.  Sometimes he has
to justify the said honour.  This is one of those occasions.  We
have succeeded or failed?  No one can be a judge in his own
cause.
Accordingly, herein follows the judgment for which the entire
country is waiting with bated breath.”
29. It is relevant here to state that by an order dated 26.3.2018 a
three-Judge Bench of this Court in Sameena Begum v. Union of India
& Ors. [Writ Petition (Civil) No. 222 of 2018] has referred the matter
relating to polygamy including Nikah Halala; Nikha Mutah; and Nikah
Misya to a Constitution Bench.  The order of reference in the said case
reads as under:
“It
is submitted by learned counsel for the petitioners that the
challenge in these writ petitions pertains to the prevalent practice
of polygamy including Nikah Halala; Nikah Mutah; and Nikah
Misyar as they are unconstitutional.  Various grounds have been
urged in support of the stand as to how these practices, which
come within the domain of personal law, are not immune from
judicial review under the Constitution.  It is urged by them that the
majority opinion of the Constitution Bench in the case of Shayara
Bano etc. v. Union of India & Ors. etc. (2017) 9 SCC 1 has not
dealt with these aspects.  They have drawn our attention to various
paragraphs of the judgment to buttress the point that the said issues
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [S. ABDUL NAZEER, J.]
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have not been really addressed as there has been no delineation
on these aspects.
On a perusal of the judgment, we find the submission of the
learned counsel for the parties/petitioners is correct that these
concepts have not been decided by the Constitution Bench.
xxx
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At this juncture, a submission has been advanced at the
Bar that keeping in view the importance of the issue, the
matter should be placed before the Constitution Bench.
Accepting the said submission, it is directed that the matter
be placed before Hon’ble the Chief Justice of India for
constitution of appropriate Constitution Bench for dwelling
upon the issues which may arise for consideration from the
writ petitions.”
                           (Emphasis supplied)
30. Moreover, a two-Judge Bench of this Court on 6.7.2018 in
Jyoti Jagran Mandal v. NDMC & Anr. [Civil Appeal No. 5820 of
2018] has referred the matter in relation to the policy decision permitting
Ram Leela and Puja once in a year in public parks to a Constitution
Bench holding as under:
“Application seeking exemption from filing certified copy of the
impugned order is allowed.
Appeal admitted.
The order of the National Green Tribunal, Principal Bench, New
Delhi has rejected an application made by the appellant to have
what is known as “Mata-ki-Chowki” in a public park. The appellant
has expressly relied upon earlier orders, including a policy decision,
which permits Ram
Leela and Puja to be allowed once in a year
in such public parks.
The appeal raises a question of great constitutional
importance as to whether such activities can be allowed in
state owned premises in view of our Constitution being
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secular in nature. The Hon’ble Chief Justice is, therefore,
requested to constitute an appropriate Bench to hear the
aforesaid matter.”
                           (Emphasis supplied)
31. In Sunita Tiwari v. Union of India & Ors. {Writ Petition
(Civil) No. 286 of 2017} a Three-Judge Bench of this Court was
considering the question relating to banning the practice of Female Genital
Mutilation (FGM) or Khatna or Female Circumcision (FC) or Khafd.  It
was submitted by the senior counsel appearing for the contesting
respondent that the matter should be referred to a larger Bench for an
authoritative pronouncement because the practice is an essential and
integral practice of the religious sect.  Learned Attorney General for
India also submitted that it deserves to be referred to a larger Bench.
By Order dated 24.09.2018, the matter was referred to a larger Bench,
the relevant portion of which is as under:
“Regard being had to the nature of the case, the impact on
the religious sect and many other concomitant factors, we
think it apposite not to frame questions which shall be
addressed to by the larger Bench. We also think it
appropriate that the larger Bench may consider the issue
in its entirety from all perspectives.
In view of the aforesaid, we are of the view that the matter should
be placed before a larger Bench. The Registry is directed to place
the papers of the instant matter before the Hon’ble Chief Justice
of India for obtaining appropriate directions
in this regard.”
   (Emphasis supplied)
32. Considering the Constitutional importance and significance of
the issues involved, the following need to be referred to a larger Bench:
(a) Whether in the light of Shirur Mutt and other aforementioned
cases, an essential practice can be decided without a detailed
examination of the beliefs, tenets and practice of the faith in
question?
(b) Whether the test for determining the essential practice is both
essentiality and integrality?
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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(c) Does Article 25, only protect belief and practices of particular
significance of a faith or all practices regarded by the faith as
essential?
(d) Do Articles 15, 25 and 26 (read with Article 14) allow the
comparative significance of faiths to be undertaken?
33. The Registry is directed to place this matter before the Hon’ble
Chief Justice of India for appropriate orders.
Devika Gujral
            Directions for further listing