TMI Blog1994 (10) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia are the questions for decision herein. The background in which these questions are to be answered is contained in the facts stated in the White Paper on Ayodhya, February 1993, issued by the Government of India. 4. Certain undisputed facts emerging at the hearing may also have relevance for this purpose. These questions are answered on this basis, eschewing facts which are in the area of controversy and have yet to be adjudicated. BACKGROUND 5. The Bill was introduced in Parliament leading to the above enactment and the said Reference to this Court was made in the historical background set out in the White Paper. Indeed, the two simultaneous acts are an indication of the legislative intent for enactment of the statute, the reference being made as a part of the same exercise with a view to effectuate the purpose of the enactment. This is how, they have to be viewed. 6. The Overview at the commencement of the White Paper in Chapter 1 states thus:- 1.1 Ayodhya situated in the north of India is a township in District Faizabad of Uttar Pradesh. It has long been a place of holy pilgrimage because of its mention in the epic Ramayana as the place of birth of Shri Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed, it was an act of national shame . What was demolished was not merely an ancient structure; but the faith of the minorities in the sense of justice and fair play of majority. It shook their faith in the rule of law and constitutional processes. A five hundred year old structure which was defenceless and whose safety was a sacred trust in the hands of the State Government was demolished. 8. After referring to the details on this tragedy, the White Paper in Chapter 1 on OVERVIEW concludes thus :- 1.35. The demolition of the Ram Janma Bhoomi-Babri Masjid structure at Ayodhya on 6th December, 1992 was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and the rule of law enshrined in our Constitution. In a move as sudden as it was shameful, a few thousand people managed to outrage the sentiments of millions of Indians of all communities who have reacted to this incident with anguish and dismay. 1.36 What happened on December 6, 1992 was not a failure of the system as a whole, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the next friend of the Deity filed a title suit in respect of the disputed structure. In 1989, the aforementioned suits were transferred to the Allahabad High Court and were ordered to be heard together. On 14th August, 1989. the High Court ordered the maintenance of status quo in respect of the disputed structure (Appendix-I to the White Paper). As earlier mentioned, it is stated in para 1.2 of the White Paper that: 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 December 6, 1992 the structure had not been used as a mosque. 11. Prior to December 1949 when the idols were shifted into the disputed structure from the Ram-chabutra, worship by Hindu devotees at the Ram-chabutra for a long time without any objection from Muslims is also beyond controversy. A controversy, however, is raised about use of the disputed structure as a mosque from 1934 to December 1949. One version is that after some disturbances in 1934, the use of the disputed structure as a mosque had been stopped from 1934 itself and not merely from December 1949. The other side disputes the alleged d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and AIBMAC. XXX XXX XXX 2.12 The historical debate has thus remained inconclusive although much progress has been made in identifying the areas of agreement and difference. Conclusive findings can be obtained only by way of reference to a competent authority. However, as brought out elsewhere in this Paper the negotiations were disrupted at a crucial phase. Now, the entire evidence has disappeared along with the disputed structure. It is tragic and ironical that the Ram-chabutra and Kaushalya Rasoi, which continued as places of worship during periods of Muslim and British rule have disappeared along with the RJB-BM structure at the hands of people professing to be 'devotees' of Lord Ram. PLACING OF IDOLS IN THE DISPUTED STRUCTURE 2.13 As has been mentioned above, Hindu structures of worship already existed in the outer courtyard of the RJB-BM structure. On the night of 22nd/23rd December, 1949, however, Hindu idols were placed under the central dome of the main structure. Worship of these idols was started on a big scale from the next morning. As this was likel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The last two decisions were further elaborated on 27th December as follows: The Government has decided to acquire all areas in dispute in the suits pending in the Allahabad High Court. It has also been decided to acquire suitable adjacent area. The acquired area excluding the area on which the disputed structure stood would be made available to two Trusts which would be set up for construction of a Ram Temple and a Mosque respectively and for planned development of the area. The Government of India has also decided to request the President to seek the opinion of the Supreme Court on the question whether there was a Hindu temple existing on the site where the disputed structure stood. The Government has also decided to abide by the opinion of the Supreme Court and to take appropriate steps to enforce the Court's opinion. Notwithstanding the acquisition of the disputed area, the Government would ensure that the position existing prior to the promulgation of the Ordinance is maintained until such time as the Supreme Court gives its opinion in the matter. Thereafter the rights of the parties shall be determined in the light of the Court's opinion. In pursuance of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid Ordinance. S. B. CHAVAN. NEW DELHI, The 9th March, 1993. SPECIAL REFERENCE WHEREAS a dispute has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, in the area in which the structure stood in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh; 2. AND WHEREAS the said area is located in Revenue Plot Nos. 159 and 160 in the said village Kot Ramchandra; 3. AND WHEREAS the said dispute has affected the maintenance of public order and harmony between different communities in the country; 4. AND WHEREAS the aforesaid area vests in the Central Government by virtue of the Acquisition of Certain Area at Ayodhya Ordinance, 1993; 5. AND WHEREAS notwithstanding the vesting of the aforesaid area in the Central Government under the said Ordinance the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India and in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) authorised person means a person or body of persons or trustees of any trust authorised by the Central Government under Section 7; (c) Claims Commissioner means the Claims Commissioner appointed under Sub-section (2) of Section 8; (d) prescribed means prescribed by rules made under this Act. CHAPTER II ACQUISITION OF THE AREA IN AYODHYA 3. Acquisition of rights in respect of certain area.- On and from the commencement of this Act, the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government. 4. General effect of vesting.- (1) The area shall be deemed to include all assets, rights, leaseholds, powers, authority and privileges and all property, movable and immovable, including lands, buildings, structures, shops of whatever nature or other properties and all other rights and interests in, or arising out of, such properties as were immediately before the commencement of this Act in the ownership, possession, power or control of any person or the State Government of Uttar Pradesh, as the case may be, and all registers, maps, plans, drawings and other documents of whatever nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght, title and interest in relation to the area or part thereof vest in the authority or body or trustees referred to in Sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall, on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees of that trust. (3) The provisions of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or trustees as they apply in relation to the Central Government and for this purpose references therein to the Central Government shall be construed as references to such authority or body or trustees. CHAPTER III MANAGEMENT AND ADMINISTRATION OF PROPERTY 7. Management of property by Government.- (1) Notwithstanding anything contained in any contract or instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of this Act, the property vested in the Central Government under Section 3 shall be managed by the Central Government or by a person or body of persons of trustees of any trust authorised by that Government in this behalf. (2) In managing the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay extend to three years or with fine which may extend to ten thousand rupees, or with both. 11. Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against the Central Government or the authorised person or any of the officers or other employees of that Government or the authorised person for anything which is in good faith done or intended to be done under this Act. 12. Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the sessions immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia was asked to clarify the stand of the Central Government on this point. Initially, it was stated by the learned Solicitor General that the answer to the question would provide the basis for further negotiations between the different groups to settle the controversy and the Central Government would then be able to decide the effective course available to it for resolving the controversy. On being asked to further clarify the stand of the Central Government about the purpose of the Special Reference, the learned Solicitor General made a statement in writing on behalf of the Union of India on 14th September, 1994 as under:- Government stands by the policy of secularism and of even-handed treatment of all religious communities. The Acquisition of Certain Area at Ayodhya Act, 1993, as well as the Presidential Reference, have the objective of maintaining public order and promoting communal harmony and the spirit of common brotherhood amongst the people of India. Government is committed to the construction of a Ram temple and a mosque, but their actual location will be determined only after the Supreme Court renders its opinion in the Presidential Reference. Government will tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a mosque being a place of religious worship by the Muslims, independently of whether the acquisition did affect the right to practise religion, is wholly immune from the State's power of acquisition and the statute is, therefore, unconstitutional as violative of Articles 25 and 26 of the Constitution of India for this reason alone. The others, however, limited this argument of immunity from acquisition only to places of special significance, forming an essential and integral part of the right to practise the religion, the acquisition of which would result in the estimation of the right to freedom of religion itself. It was also contended that the purpose of acquisition in the present case does not bring the statute within the ambit of Entry 42, List III but is referable to Entry 1, List II and, therefore, the Parliament did not have the competence to enact the same. It was then urged by learned Counsel canvassing the Muslim interest that the legislation is tilted heavily in favour of the Hindu interests and, therefore, suffers from the vice of non-secularism and discrimination in addition to violation of the right to freedom of religion of the Muslim community. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o retain any part of the excess area which was not necessary for a proper resolution of the dispute or to effectuate the purpose of the acquisition, it was submitted that an assurance of communal harmony throughout the country was a prime constitutional purpose and avoidance of escalation of the dispute in the wake of the incident at Ayodhya on 6th December, 1992 was an essential step in that direction, which undoubtedly promotes the creed of secularism instead of impairing it. It was submitted that the charge leveled against the Central Government of discrimination against any religious community or of anti-secularism is wholly unwarranted. 19. Another argument advanced on behalf of the Muslim community was that the defences open to the minority community in the suits filed by the other side including that of adverse possession by virtue of long possession of the disputed site for over 400 years since its construction in 1528 A. D. have also been extinguished by the acquisition, giving an unfair advantage to the other side. It was also urged that the core question in the dispute between the parties was not the Subject-matter of the Special Reference made under Article 143(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held : Is such a construction of 'vesting' in two different senses in the same section, sound? Yes. It is, because 'vesting' is a word of slippery import and has many meanings. The context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions. The meaning of vest in Section 3 and in Section 6 is of significance in the context of the constitutional validity of the statute. It can vary in different parts of the statute or even the same Section, depending on the context of its use. 22. Section 4 then provides the general effect of vesting. Obviously, the effect of vesting will depend on the meaning of the word vest used in Section 3 and the kind of vesting in the present context. Sub-section (1) of Section 4 provides that the area shall be deemed to include all assets, rights, etc. specified therein of whatever nature relating thereto. Sub-section (2) further says that all properties aforesaid which have vested in the Central Government under Section 3 shall, by force of such vesting, be freed and discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing contained in Sections 3, 4, 5 and 7, direct by notification in the Official Gazette, that the right, title and interest or any of them in relation to the area or any part thereof, instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust from the specified date, if it is satisfied that the same is willing to comply with such terms and conditions as the Central Government may think fit to impose. In short, Sub-section (1) empowers the Central Government to transfer its right, title and interest or any of them in the area or any part thereof to any authority or other body or trustees of any trust on such terms and conditions as it may think fit to impose, instead of continuing to retain the same itself. Sub-section (2) provides for the consequences of the action taken under Sub-section (1) giving recognition to the statutory transfer effected by the Central Government to effectuate the purpose of such transfer by the Central Government by declaring that the transferee would then step into the shoes of the Central Government acquiring the same right, title and interest in the area or part thereof which by virtue of the enactm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is maintained. This means that the power of management of the Central Government or the authorised person under Sub-section (1) of Section 7 is coupled with the duty contained in the mandate given by Sub-section (2). The mandate is that in managing the property so vested in the Central Government, the Central Government or the authorised person shall ensure maintenance of the status quo in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, stood . There was some debate as to the meaning of the word area in this context. One construction suggested was that the word area used in this expression has the same meaning as in the definition contained in Section 2(a), that is, the entire area specified in the Schedule to the Act. Section 2 itself says that the definitions therein give the meaning of the words defined unless the context otherwise requires . The context in which the word area is used in the expression in Section 7(2) gives the clear indication that its meaning is not the same as in Section 2(a) to mean the entire area specified in the Schedule since the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid. LEGISLATIVE COMPETENCE 28. The legislative competence is traceable to Entry 42, List III and the State of Uttar Pradesh being under President's rule at the relevant time, the legislative competence of the Parliament, in the circumstances, cannot be doubted. That apart, the pith and substance of the legislation is acquisition of property and that falls squarely within the ambit of Entry 42, List III. Competing entry set up is Entry 1, List II relating to public order . Acquisition of property and not public order is the pith and substance of the statute. 29. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga , it was pointed out that where the dominant purpose of the act was that of transference to the State of the interests of the proprietors and tenure holders of the land, the pith and substance of the legislation was the transference of ownership to the State Government and it was an acquisition Act. In Dy. Commr. and Collector, Kamrup v. Durga Nath Sarma , Bachawat, J. pointed out that a law for permanent acquisition of property is not a law for promotion of public health etc. since only the taking of temporary possession of privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule of law. It is urged that the Special Reference under Article 143(1) of the Constitution to this Court by the President of India is not of the core question, the answer to which would automatically resolve the dispute but only of a vague and hypothetical issue, the answer to which would not help in the resolution of the dispute as a legal issue. It is also urged that Section 6 enables transfer of the acquired property including the disputed area to any authority, body or trust by the Central Government without reference to the real title over the disputed site. It is further contended that Section 7 perpetuates the mischief of the demolition of the mosque by directing maintenance of the status quo as on 7th January, 1993 which enables the Hindus to exercise the right of worship of some kind in the disputed site keeping the Muslims totally excluded from that area and this discrimination can be perpetuated to any length of time by the Central Government. The provision in Section 7, it is urged, has the potential of perpetuating this mischief. Reference was also made to Section 8 to suggest that it is meaningless since the question of ownership over the disputed site remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ideal, therefore, of a secular State in the sense of a State which treats all religions alike and displays a benevolent neutrality towards them is in a way more suited to the Indian environment and climate than that of a truly secular State. Secularism, in the Indian context, must be given the widest possible content. It should connote the eradication of all attitudes and practices derived from or connected with religion which impede our development and retard our growth into an integrated nation. A concerted and earnest endeavour, both by the State and citizen, towards secularisation in accordance with this wide concept alone lead to the stabilisation of our democratic state and the establishment of a true and cohesive Indian nationhood. 34. A reference to the Address of the President of India, Dr. Shanker Dayal Sharma, as the then Vice-President of India, on Secularism in the Indian Ethos while, delivering Dr. Zakir Hussain Memorial Lecture of Vishva-Bharati, Shantiniketan, on 29th April, 1989 is useful. Therein, he referred to the difference between our understanding of the word secular and that in the West or its dictionary meaning, and said :- We in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cob, Moses mentioned in the Old Testament of the Christian faith, and Jasus, A1-Fatiha or Fatiha Tu Alfatha which is also referred to as Ummul Quran or the essence of the Quran refers to 'Allah' as Rab-ul-Alamin or Lord of the entire universe, it does not confine him to Muslims alone. The Second Surah in the Quran, titled Al-Baqurah gives a warning, which is repeated throughout the Quran, that it is not mere professing of one's creed, but righteous conduct, that is true religion. Verses 44, 81 and 82 from this Surah make this absolutely clear. 37. Dr. Sharma also adverted to the contribution made to growth of secularism by Akbar who founded Din-e-illahi and the support he was given by Abdul Rahim Khane Khana in addition to the secularism of Dara Shikoh. Impact of Muslim mysticism on Hinduism and contribution of Kabir to the Indian ethos has been lasting. Secular ideals led to formation of the Sikh faith and the Gurus have made a lasting contribution to it. He said: Guru Gobind Singh further magnified the secular ideal of the Sikh faith. The following lines composed by Guru Govind Singh come to mind. Mandir or Mosque, Puja or Namaz, Puran or Quran have no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety, Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guarantee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the democratic form of Government. There can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faith flying at each other's throats. The secular Government should negate the attempt and bring order in the society. Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non-material and non-secular life. (at page 163) (of SCC) : (at p. 3080 of AIR). it would thus be clear that Constitution made demarcation between religious part personal to the individual and secular part thereof. The State does not extend patronage to any particular r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Constitution in 1976 by the 42nd Amendment, the concept of secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit...(at page 77) (of SCC): (at p. 2992 of AIR). 40. It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasising that there is no religion of the State itself. The Preamble of the Constitution read in particular with Articles 25 to 28 emphasises this aspect and indicates that it is in this manner the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of the Constitution. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution. 41. It is useful in this context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to the provisions of the enactment. 43. It is necessary to first construe the provisions of Act No. 33 of 1993 with reference to which the grounds of challenge have to be examined. 44. The meaning of the word vest as earlier stated has different shades taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration. Thus the meaning of vest used in Section 3 has to be determined in the light of the text of the statute and the purpose of its use. If the vesting be absolute being unlimited in any manner, there can be no limitation on the right to transfer or manage the acquired property. In the event of absolute vesting, there is no need for a provision enabling the making of transfer after acquisition of the property, right to transfer being a necessary incident of absolute title. Enactment of Section 6 in the same statute as a part of the scheme of acquisition of the property vesting it in the Central Government is, therefore, contra indication of the vesting under Section 3 in the Central Government bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46. It is, therefore, clear that for ascertaining the true meaning of the word vest used in Section 3 we must first consider the validity of Sections 6 and 7 of the Act on which it largely depends. If Sections 6 and 7 of the Act, which limit the title of the Central Government cannot be sustained, the limitation read in Section 3 to the title acquired by the Central Government under the Act through this mode would disappear. For this reason, we proceed to examine the validity of Sections 6 and 7. 47. Between Sections 6 and 7, it is Section 7 which impose a greater restriction on the power of Central Government. It gives the mandate that in management of the area over which the disputed structure stood, it has to maintain status quo as it existed at the time of acquisition on 7th January, 1993. Such a limitation is clearly inconsistent with the acquisition of absolute ownership of the property. The validity of Section 7(2) of the Act must, therefore, be considered. 48. Section 7 as we read it, is a transitory provision, intended to maintain status quo in the disputed area, till transfer of the property is made by the Central Government on resolution of the dispute. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood on the disputed site within the courtyard of the disputed structure had been performed without any objection by the Muslims even prior to the shifting of those idols from the Ram chabutra into the disputed structure in December 1949; in one of the suits filed in January 1950, the trial court passed interim orders whereby the idols remained at the place where they were installed in 1949 and worship of the idols there by the Hindu devotees continued this interim order was confirmed by the High Court in April 1955; the District Judge ordered the opening of the lock placed on a grill leading to the sanctum-sanctorum of the shrine in the disputed structure on 1st February, 1986 and permitted worship of the idols there to Hindu devotees; and this situation continued till demolition of the structure on 6th December, 1992 when Ram chabutra also was demolished. It was only as a result of the act of demolition on 6th December, 1992 that the worship by the Hindu devotees in general of the idols at that place was interrupted. Since the time of demolition, worship of the idols by a Pujari alone is continuing. This is how the right of worship of the idols practised by Hindu devotees for a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper enjoyment of the fruits of success on the final outcome of the adjudication. It is clear that one of the purposes of the acquisition of the adjacent properties is the ensurement of the effective enjoyment of the disputed site by the Muslim community in the event of its success in the litigation; and acquisition of the adjacent area is incidental to the main purpose and cannot be termed unreasonable. The Manas Bhawan and Sita ki Rasoi , both belonging to the Hindus, are buildings which closely overlook the disputed site and are acquired because they are strategic in locations in relation to the disputed area. The necessity of acquiring adjacent temples or religious buildings in view of their proximity to the disputed structure area, which forms a unique class by itself, is permissible. (See M. Padmanabha Iyengar v. Govt. of Andhra Pradesh AIR 1990 Andh Pra 357 and Akhara Shri Braham Buta, Amritsar v. State of Punjab AIR 1989 Punj Har 1981. We approve the principle stated in these decisions since it serves a larger purpose. 53. However, at a later stage when the exact area acquired which is needed , for achieving the professed purpose of acquisition, can be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to conferment on them of a larger right of worship in the disputed site than that practised till 6th December, 1992. Maintenance of status quo as on 7th January, 1993 does not, therefore, confer or have the effect of granting to the Hindu community any further benefit thereby. It is also pertinent to bear in mind that the persons responsible for demolition of the mosque on 6th December, 1992 were some miscreants who cannot be identified and equated with the entire Hindu community and, therefore, the act of vandalism so perpetrated by the miscreants cannot be treated as an act of the entire Hindu community for the purpose of adjudging the constitutionality of the enactment. Strong reaction against, and condemnation by the Hindus of the demolition of the structure in general bears eloquent testimony to this fact. Rejection of Bhartiya Janata Party at the hosting in the subsequent elections in Uttar Pradesh is another circumstance to that effect. The miscreants who demolished the mosque had no religion, caste or creed except the character of a criminal and the mere incident of birth of such a person in any particular community cannot attach the stigma of his crime to the community ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Parliament and are not material for adjudging the constitutional validity of the enactment. The validity of the statute has to be determined on the touchstone of the Constitution and not any statements made prior to it. We have therefore no doubt that Section 7 does not suffer from the infirmity of being anti-secular or discriminatory to render it unconstitutional. 59. We would now examine the validity of Section 6. Sub-section (1) of Section 6 empowers the Central Government to direct vesting of the area acquired or any part thereof in another authority or body or trust. This power extends to the entire acquired area or any part thereof. This is notwithstanding anything contained in Sections 3, 4, 5 and 7. Section 3 provides for acquisition of the area and its vesting in the Central Government. It is, therefore, made clear by Sub-section (1) of Section 6 that the acquisition of the area and its vesting in the Central Government is not a hindrance to the same being vested thereafter by the Central Government in another authority or body or trust. Section 4 relates to the effect of vesting and Section 5 to the power of the Central Government to secure possession of the area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of any part of the property, since Section 7(2) is applicable only to the disputed area. The provision however does not countenance the dispute remaining unresolved or the situation continuing perpetually. The embargo on transfer till adjudication, and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found, to be unnecessary, as indicated. The meaning of the word vest in Sections 3 and 6 has to be so construed differently in relation to the disputed area and the excess area in its vicinity. 60. Acquisition of the adjacent undisputed area belonging to Hindus has been attacked on the ground that it was unnecessary since ownership of the same is undisputed. Reason for acquisition of the larger area adjacent to the disputed area has been indicated. It is, therefore, not unrelated to the resolution of the dispute which is the reason for the entire acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disputed area which were to be adjudicated in the pending suits can no longer be determined therein as a result of the abatement of the suits. This also results in extinction of the several defences raised by the Muslim community including that of adverse possession of the disputed area for over 400 years since construction of the mosque there in 1528 A.D. by Mir Baqi. Ostensibly, the alternate dispute resolution mechanism adopted is that of a simultaneous Reference made the same day under Article 143(1) of the Constitution to this Court for decision of the question referred. It is clear from the issues framed in those suits that the core question for determination in the suits is not covered by the Reference made, and it also does not include therein the defences raised by the Muslim community. It is also clear that the answer to the question referred, whatever it may be, will not lead to the answer of the core question for determination in the pending suits and it will not, by itself, resolve the long-standing dispute relating to the disputed area. Reference made under Article 143(1) cannot, therefore, be treated as an effective alternate dispute resolution mechanism in substi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining undisputed property. In the view we have taken that the vesting in the Central Government by virtue of Section 3 in relation to the disputed area is only as a statutory receiver, and Section 4(3) being declared invalid results in revival of the pending suits and legal proceedings, the application of Section 8 would present no difficulty, Section 8 is meant only for the property acquired absolutely, other than the disputed area, being adjacent to, and in the vicinity of the disputed area. The disputed area being taken-over by the Central Government only as a statutory receiver, there is no question of payment of compensation for the same as it is meant to be handed over to the successful party in the suits, in terms of the ultimate judicial verdict therein, for the faithful implementation of the judicial decision. The exercise of the power under Section 8, by the Central Government is to be made only then in respect of the disputed area. In accordance with the final judicial decision, preserving status quo therein in terms of Section 7(2) till then. No further discussion of this aspect is necessary. 67. A construction which the language of the statute can bear and prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter XV of the Indian Penal Code, 1860 was enacted. This Chapter exclusively deals with the offences relating to religion in Sections 295, 295A, 296, 297 and 298 of the Indian Penal Code. Lord Macaulay in drafting the Indian Penal Code, had indicated the principle on which it was desirable for all governments to act and the British Government in India could not depart from it without risking the disintegration of society. The danger of ignoring the religious sentiments of the people of India which could lead to spread of dissatisfaction throughout the country was also indicated. 71. In British India, the right to worship of Muslims in a mosque and Hindus in a temple had always been recognised as a civil right. Prior to 1950, the Indian Courts in British India had maintained the balance between the different communities or sects in respect of their right of worship. 72. Even prior to the guarantee of freedom of religion in the Constitution of India, Chief Justice Turner in Muthialu Chetti v. Bapun Saib (1880) ILR 2 Madras 140, had held that during the British Administration all religions were to be treated equally with the State maintaining neutrality having regard to public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Land Acquisition Act, 1894 is applicable uniformly to all properties including places of worship. Right of acquisition thereunder was guided by the express provisions of the Land Acquisition Act, 1894 and executive instructions were issued to regulate acquisition of places of worship. Clause 102 of the Manual of Land Acquisition of the State of Maharashtra which deals with the acquisition of religious places like churches, temples and mosques, is of significance in this context. 75. The power of acquisition is the sovereign or prerogative power of the State to acquire property. Such power exists independent of Article 300A of the Constitution or the earlier Article 31 of the Constitution which merely indicate the limitations on the power of acquisition by the State. The Supreme Court from the beginning has consistently upheld the sovereign power of the State to acquire property. B. K. Mukherjee, J. (as he then was) held in Chiranjitlal Chowdhuri v. Union of India as under: It is a right inherent in every sovereign to take and appropriate private property belonging to individual citizens for public use. This right, which is described as eminent domain in American law, is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, clear that Article 26 guarantees inter alia the right to own and acquire movable and immovable 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. (Emphasis supplied) 80. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right to practice, 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 85. 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 AIR 1940 PC 1.16). 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 immunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of the area left open by the provisions of the Act. The Central Government would be bound to take all necessary steps to implement the decision in the suits and other legal proceedings and to hand over the disputed area to the party found entitled to, the same on the final adjudication made in the suits. The parties to the suits would be entitled to amend their pleadings suitably in the light of our decision. 88. Before we end, we would like to indicate the consequence if the entire Act had been held to be invalid and then we had declined to answer the Reference on that conclusion. It would then result in revival of the abated suits along with all the interim orders made therein. It would also then result automatically in revival of the worship of the idols by Hindu devotees, which too has been stopped from December 1992, with all its ramifications without granting any benefit to the Muslim community whose practice of worship in the mosque (demolished on 6th December, 1992) had come to a stop, for whatever reason, since at least December, 1949. This situation, unless altered subsequently by any court order in the revived suits, would, therefore, continue during the penden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderable industry in the highest traditions of the Bar. Shri Deoki Nandan Agarwal, one of the parties in a suit as the next friend of the Deity appeared in person and argued with complete detachment. Dr. M. Ismail Faruqui also appeared in person. It was particularly heartening to find that the cause of the Muslim community was forcefully advocated essentially by the members of the Bar belonging to other communities. Their commitment to the cause is evident from the fact that Shri Abdul Mannan who appeared for the Sunni Central Wakf Board endorsed the arguments on behalf of the Muslim community. The reciprocal gesture or. Shri Mannan was equally heartening and indicative of mutual trust. The congenial atmosphere in which the entire hearing took place was a true manifestation of secularism in practice. 92. The hearing left us wondering why the dispute cannot be resolved in the same manner and in the same spirit in which the matter was argued, particularly when some of the participants are common and are in a position to negotiate and resolve the dispute. We do hope this hearing has been commencement of that process which will ensure an amicable resolution of the dispute and it wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the. domination of a single religion, is the essential concomitant of religious diversity and the protection of religious freedom . The present state may be summarised thus: At present, the greatest religions tensions are not those between any one religion and another; they are the tensions between the fundamentalist arid the pluralist in each and every religious tradition . The spirit of universalism popular in the late 19th century was depicted by Max Muller who said, The living kernel of religion can be found. I believe, in almost every creed, however much the husk may vary. And think what that means: It means that above and beneath and behind all religions there is one eternal, one universal religion. 94. The year 1993 has been described as the Year of Inter-religious Understanding and Co-operation . Is that century old spirit of conciliation and co-operation reflected in reactions of the protagonists of different religious faith to justify 1993 being called the Year of Inter-religious Understanding and Co-operation ? ( Reflections on Religious Diversity by Diana L. ECK in SPAN September, 1994). It is this hope which has to be realised in the future. 95. A neutral pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and invalid. (1)(b) The remaining provisions of the Act do not suffer from any invalidity on the construction made thereof by us. Sub-section (3) of Section 4 of the Act is severable from the remaining Act. Accordingly, the challenge to the constitutional validity of the remaining Act, except for Sub-section (3) of Section 4, is rejected. (2) Irrespective of the status of a mosque under the Muslim law applicable in the Islamic countries, the status of a mosque under the Mahomedan Law applicable in secular India is the same and equal to that of any other place of worship of any religion; and it does not enjoy any greater immunity from acquisition in exercise of the sovereign or prerogative power of the State, than that of the places of worship of the other religions. (3) The pending suits and other proceedings relating to the disputed area within which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Makjid, stood, stand revived for adjudication of the dispute therein, together with the interim orders made, except to the extent the interim orders stand modified by the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the dispute, must be restored to the undisputed owners. (10) Rejection of the challenge by the undisputed owners to acquisition of some religious properties in the vicinity of the disputed area, at this stage is with the liberty granted to, them to renew their challenge, if necessary at a later appropriate stage, in cases of continued retention by Central Government of their property in excess of the exact area determined to be needed on adjudication of the dispute. . (11) Consequently, the Special Reference No. 1 of 1993 made by the President of India under Article 143(1) of the Constitution of India is superfluous and unnecessary and does not require to be answered. For this reason, we very respectfully decline to answer it and return the same. (12) The questions relating to the constitutional validity of the said Act and maintainability of the Special Reference are decided in these terms. 99. These matters are disposed of, accordingly, in the manner stated above. BHARUCHA, J. (for himself and on behalf of A. M. Ahmadi, J.) (Minority View) : 100. We have had the benefit of reading the erudite judgment of our learned brother, Verma, J. We are unable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred to the Allahabad High Court and were ordered to be heard together. On 14th August, 1989, the High Court ordered the maintenance of status quo in respect of the disputed structure. (Appendix I to the White Paper.) The controversy entered a new phase with the placing of idols in the disputed structure in December, 1949. The premises were attached under Section 145 of the CrPC. Civil suits were filed shortty thereafter. The 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 December, 1992 the structure had not been used as a mosque . (Para 1.2). On 6th December, 1992, the disputed structure was demolished. The demolition...was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship but also at the principles of secularism, democracy and the rule of law.... (Para 1.35). At 6.45 p.m. on that day the idols were replaced where the disputed structure had stood and by 7.30 p.m. work had started on the construction of a temporary structure for them (Para 1.20). At about 9.10 p.m. the President of India issued a proclamation un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, in the area in which the structure stood in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh; 2. AND WHEREAS the said area is located in Revenue Plot Nos. 159 and 160 in the said village Kot Ramachandra; 3. AND WHEREAS the said dispute has affected the maintenance of public order and harmony between different communities in the country; 4. AND WHEREAS the aforesaid area vests in the Central Government by virtue of the Acquisition of Certain Area at Ayodhya Ordinance, 1993; 5. AND WHEREAS notwithstanding the vesting of the aforesaid area in the Central Government under the said Ordinance the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India and in terms of the said opinion; 6. AND WHEREAS in view of what has been hereinbefore stated it appears to me that the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court renders its opinion in the Presidential Reference. Government will treat the finding of the Supreme Court on the question of fact referred under Article 143 of the Constitution as a verdict which is final and binding. In the light of the Supreme Court's opinion and consistent with it, Government will make efforts to resolve the controversy by a process of negotiations. Government is confident that the opinion of the Supreme Court will have a salutary effect on the attitudes of the communities and they will no longer take conflicting positions on the factual issue settled by the Supreme Court. If efforts at a negotiated settlement as aforesaid do not succeed, Government is committed to enforce a solution in the light of the Supreme Court's opinion and consistent with it, Government's action in this regard will be even-handed in respect of both the communities. If the question referred is answered in the affirmative, namely, that a Hindu temple/structure did exist prior to the construction of the demolished structure, Government action will be in support of the wishes of the Hindu community. If, on the other hand, the question is answered in the negative, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding dispute relating to the structure aforementioned which had affected the maintenance of public order and harmony between different communities in the country. It was necessary to maintain public order and promote communal harmony and the spirit of common brotherhood among the people of India . It was necessary to acquire certain areas in Ayodhya with a view to achieve the aforesaid objectives . 115. The Act, by reason of Section 1(2), is deemed to have come into force on 7th January, 1993 (which is the date on which the Ordinance was passed). Section 2(a) defines area to mean the area specified in the Schedule to the Act, including the buildings, structures or other properties comprised therein. Section 2(b) defines authorised person to mean a person or body of persons or trustees of any trust authorised by the Central Government under Section 7 . 116. By reason of Section 3, on and from the commencement of the Act, the right, title and interest in relation to the area stands transferred to and vests in the Central Government. 117. Section 4(1) states that the area shall be deemed to include all assets, rights, leaseholds, powers, authority and privileges and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to the Central Government and for this purpose references therein to the Central Government shall be construed as references to such authority or body or trustees. 119. Section 7 is the only section under the Chapter entitled Management and Administration of Property , and it reads thus: (1) Notwithstanding anything contained in any contract or instrument or order of any Court, Tribunal or other authority to the contrary, on and from the commencement of this Act, the property vested in the Central Government under Section 3 shall be managed by the Central Government or by a person or body of persons or trustees of any trust authorised by that Government in this behalf. (2) In managing the property vested in the Central Government under Section 3, the Central Government or the authorised person shall ensure that the position existing before the commencement of this Act in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, stood in village Kot Ramachandra in Ayodhya, in Pargana Haveli Avadh, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act in the area on which the structure (including the premises of the inner and outer courtyards) ...stood...is maintained . This provision in Section 7(2) relates only to that part of the area upon which the disputed structure stood (the disputed site). 124. Now, as to the authorised person , Section 7(1) says that the whole bundle of property and rights shall be managed by the Central Government or by a person or body of persons or trustees of any trust authorised by the Central Government. This, as Section 7(2) shows, is the authorised person under Section 2(b). He or it may not be the authority or other body or trustees referred to in Section 6(1). In other words; the power to manage the whole bundle of property and rights may be conferred upon any person or body of persons or trustees of any trust even though he or they are not required to comply with the terms and conditions that the Central Government may deem fit to impose under Section 6(1). 125. In managing the property vested in the Central Government under Section 3 (which, read with Section 4(1), means the whole bundle of property and rights) the Central Government or the authorised person shall ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof, all the rights of the Central Government in the whole bundle of property and rights or such part thereof as has been vested, shall be deemed to be transferred to the authority or body or trust in which it is vested. 128. The provisions of Section 6 apply to the whole bundle of property and rights; that is to say, they apply also to the disputed site. The disputed site may also be vested in an authority or body or trust that is willing to comply with the terms and conditions that the Central Government might think fit to impose. Those terms and conditions are not specified in the Act, nor is there any indication in that behalf available. The only restriction imposed upon such authority or body or trust, apart from the terms and conditions that the Central Government may think fit to impose, are those provided in Section 7. This is set out in Section 6(3). The provisions of Sections 4, 5 and 11 which are also mentioned in Section 6(3) are provisions that empower and protect the authority or body or trust. 129. Section 7 relates to the management and administration of the whole bundle of property and rights. Section 7(1) states that it shall be managed by the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Statement of Objects and Reasons states that the acquisition of the whole bundle of property and rights is necessary for setting up a planned complex housing a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities . The authority or other body or trustees of any trust willing to comply with such terms arid conditions as the Central Government may think fit to impose would, under the provisions of Section 6, be vested with a part of the whole bundle of property and rights to construct and maintain a Ram temple and concomitant amenities. Another authority or body or trust so willing would be vested with another part of the whole bundle of property and rights to construct and maintain a mosque and concomitant facilities. So read, the provisions relating to the management and administration of the whole bundle of property and rights contained in Section 7 are interim provisions, to operate until vesting under Section 6 has taken place. 134. Having regard to the provisions of Section 6, the Statement of Objects and Reasons and the Reference; the acquisition of the disputed site and surrounding land is to hold the same pending the resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by a Claims Commissioner, who is entitled to regulate his own procedure. 136. As the White Paper shows, the demolished structure was built as a mosque in 1528. It was used as a mosque from 1528 until the night of 22nd/23rd December, 1949, when the idols were placed therein. The idols continue in the disputed structure by reason of the orders of the Courts. Under the orders of the Court passed in 1986 public worship of the idols was permitted. This state of affairs continued until 6th December, 1992, when the disputed structure was demolished. 137. The effect of Section 4 of the Act is that the Sunni Wakf Board, which administered the mosque that was housed in the disputed structure, and the Muslim community lose their right to plead adverse possession of the disputed site from 1528 until 1949, if not up-to-date, considering that the idols remained in the disputed structure only under the orders of the courts. Instead of judicial determination of the title to the disputed site on the basis of the law, the disputed site, along with surrounding land, has been acquired and a complex with a mosque and a temple thereon is; planned. What is to happen to the disputed site is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unanimously reaffirmed by the nine-Judge Bench of this Court in S.R. Bommai v. Union of India. Sawant, J. analysed the Preamble of the Constitution and various articles therein and held that these provisions, by implication, prohibited the establishment of a theocratic State and prevented the State from either identifying itself with or favouring any particular religion. The State was enjoined to accord equal treatment to all religions. K. Ramaswamy, J. quoted the words written by Gandhiji that are as apposite now as they were when he wrote them : The Allah of Muslims is the same as the God of Christians and Ishwara of Hindus . B. P. Jeevan Reddy, J. said (at p. 3152 of AIR): While the citizens of this country are free to profess, practice and propagate- such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable treatment of all other rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puja must continue so long as the management continues. For how long such management, to continue and on the happening on what event it will come to end is not indicated. Section 7(2), thus, perpetuates the performance of puja on the disputed site. No account is taken of the fact that the structure thereon had been destroyed in a most reprehensible act. The perpetrators of this deed struck not only against a place of worship but at the principles of secularism, democracy and the rule of law ... (White Paper, para 1.35). No account is taken of the fact that there is a dispute in respect of the site on which puja is to be performed; that, as stated in the White Paper, until the night of 22nd/23rd December, 1949, when the idols were placed in the disputed structure, the disputed structure was being used as a mosque; and that the Muslim community has a claim to offer namaaz thereon. 143. Reference was made in the course of the proceedings to the provisions of the Places of Worship Special Provisions Act, 1991. It is a statute to prohibit the 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 15th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dint of numbers, create conditions that are conducive to public disorder, it is the constitutional obligation of the State to protect that place of worship and to preserve public order, using for the purpose such means and forces of law and order as are required. It is impermissible under the provisions of the Constitution for the State to acquire that place of worship to preserve public order. To condone the acquisition of a place of worship in such circumstances is to efface the principle of secularism from the Constitution. 145. We must add a caveat. If the title to the place of worship is in dispute in a Court of law and public order is jeopardised, two courses are open to the Central Government. It may apply to the concerned Court to be appointed Receiver of the place of worship, to hold it secure pending the final adjudication of its title, or it may enact legislation that makes it statutory Receiver of the place of worship pending the adjudication of its title by the concerned Court. In either event, the Central Government would bind itself to hand over the place of worship to the party in whose favour its title is found. 146. The learned Solicitor General submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he promotion or maintenance of any particular religion. Article 29(2) may also be noted for its absolute terms; no citizen can be denied admission into any educational institution maintained by the State or receiving aid out of State funds on the ground of religion. 149. This brings us to the Reference. The Act having been struck down, the suits as to the title of the disputed site in the Allahabad High Court revive and the purpose for which the Reference was made may be said to have become redundant. On the other hand, it may be said that the revival of the suits does not debar the Central Government from negotiating to bring an amicable solution to the dispute at Ayodhya and such negotiations depend upon the answer given to the question posed by the Reference. We shall, therefore, deal with the Reference, and proceed upon the basis that it is maintainable under the provisions of Article 143. 150. In Special Reference No. 1 of 1964, this Court held : It is quite true that under Article 143(1) even if questions are referred to this Court for its advisory opinion, this Court is not bound to give such advisory opinion in every case. Article 143(1) provides that after the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a reference does not flow merely out of the different phraseology used in Clauses (1) and (2) of Article 143, in the sense that Clause (1) provides that the Court may report to the President its opinion on the question referred to it, while Clause (2) provides that the Court shall report to the President its opinion on the question. Even in matters arising under Clause (2), though that question does not arise in this reference, the Court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered. With these preliminary observations we will consider the contentions set forth above. This Court is, therefore, entitled to decline to answer a question posed to it under Article 143 if it considers that it is not proper or possible to do so, but it must indicate its reasons. 151. In our view, the Reference must not be answered, for the following reasons. 152. The Act and the Reference, as stated hereinabove, favour one religious community and disfavour another; the purpose of the Reference is, therefore, opposed to secularism and is unconstitutional. Besides, the Reference does not serve a constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass. The dignity and honour of the Supreme Court cannot be compromised because of it. 156. No observation that we have made is a reflection on the referring authority. We have the highest respect for the office of the President of India and for its present incumbent; his secular credentials are well known. 157. Having regard to the construction that we have placed upon the Act and the Reference, it is neither necessary nor appropriate to discuss the other challenges to their validity and maintainability, respectively. It may, however, be said that we found the argument that the Act was public order legislation and, therefore, beyond the competence of Parliament very plausible. 158. We are indebted to the learned Attorney General for the assistance that he has rendered to the Court. We are indebted to counsel who have appeared in these matters; if we single out Mr. R.K. Garg, it is because of his untimely demise. 159. Before we pass final orders, some observations of a general nature appear to be in order. Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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