Demolition of mosques: Arbitrary state action and judicial approval

In the past few months, I have come across three final judgments of our constitutional courts: one by the Supreme Court of India and two by Division Benches of High Courts, against which the Supreme Court did not entertain appeals.

All of these, in my respectful view, seriously affect the fundamental freedom of religion and practice guaranteed to the Muslim community under the Constitution. Let me briefly put the facts of those cases.

The first, a final order of the Supreme Court, is a cryptic and unreasoned order stating that “the structure existing in the form of a mosque, being sufficiently old, shall not be demolished,” but it “shall not be used by anyone for any religious purpose.” The Court also permitted the State to take action if anyone attempted to enter the mosque. Experience tells us how such liberty granted by the courts are used by the State mechanism. The result: an old mosque continues to be a mosque, but Muslims have been stopped from their religious practices, reducing a living religious space to a hollow monument.

The second, from the Madhya Pradesh High Court, is no less disturbing. A 200-year-old mosque, duly notified as waqf property in 1985, was demolished by the State on January 11, 2025. The State justified its action on the ground that the land was required for expanding the parking facilities of the Mahakal (Temple) Lok Corridor, Ujjain. It claimed to have followed due procedure of land acquisition by paying compensation to the residents of “Masjid Colony,” who in fact were not the owners of the land. Shockingly, this demolition took place even while a suit concerning the property was pending, as reflected in the High Court order.

To defend its action, the State relied on a 1978 Allahabad High Court judgment to argue that Muslims could offer namaz elsewhere, even at home, and that the loss of one mosque does not infringe the constitutional guarantee under Article 25. What kind of argument is this? Can the State demolish a notified waqf property and then tell the namazi to go to alternative spaces for prayer? Even more shockingly, the High Court placed its judicial stamp of approval on this reasoning, dismissing petitions filed by those who had regularly offered namaz there. Thereafter, the Supreme Court also confirmed the view taken by the High Court.

The third instance comes from the Madras High Court. A mosque that had been functional since 1877 in a cantonment area was closed to the public during the COVID-19 pandemic and the Army administration thereafter decided not to reopen it. From 1877 until 1960, public offering of namaz had never been an issue. Restrictions began only after 1960, when the Army gradually curtailed public access and started intervening and taking over aspects of maintenance. Even then, through various court interventions, congregational namaz continued, albeit with regulations.

COVID-19, however, became the turning point. After the pandemic, the Army took the position that reopening the mosque would pose a “security concern” within the cantonment. On this basis, it refused to permit resumption of prayers and this stance was upheld by all three courts in the judicial hierarchy, including the Supreme Court.

Notably, the mosque had never been a site of security concerns in the past. Yet, the unexamined invocation of “security” became the decisive factor in denying the reopening of a place of worship that had operated peacefully for nearly a century-and-a-half.

These recent court orders remind us of the events and judgments around the Babri Masjid case. A week after the demolition of the Babri Masjid on December 6, 1992, a Full Bench of the Allahabad High Court, while quashing the acquisition of 2.77 acres around the site, observed:

“It is unfortunate that in the last decade of this century, not only the secular character of the Indian Constitution has been challenged, but also the democratic principles of equality of every citizen before law and the rule of law, which the Constitution has structured.”

The Bench noted that the “religion factor” had influenced the State’s discriminatory actions. Yet, no effective contempt action was ever taken against those responsible for violating solemn undertakings given to the Court.

Next came the Supreme Court’s 1994 judgment in M Ismail Faruqui v. Union of India, where a five-judge Constitution Bench (by a 3:2 majority) upheld the acquisition of 67 acres of land - including the site of the demolished mosque and adjoining the qabristan. The majority opinion, authored by Justice JS Verma, introduced the problematic notion of “comparative significance” of religious places, implicitly ranking faiths by perceived importance. Worse, it held that “a mosque is not an essential part of the practice of the religion of Islam, and namaz may be offered anywhere.” This observation, made without examining the doctrine of “essential religious practice,” was both jurisprudentially erroneous and deeply insensitive. It has since been weaponised by State authorities to justify arbitrary actions against mosques, waqf lands and Islamic institutions.

In 2018, Senior Advocate Dr Rajeev Dhavan, appearing for Muslim parties in the Babri Masjid case, urged a three-judge Bench of the Supreme Court to reconsider Ismail Faruqui’s erroneous proposition. The Court, however, declined to do so, again by a majority of two.

Today, we are witnessing the cumulative consequences of those judicial pronouncements. Across India, several mosques have come under threat of demolition, sealing, or administrative closure. State authorities understand that the principles in the Faruqui case will defend arbitrary State action by invoking acquisition laws on religious places of Muslims.

This has left Muslims in a state of constitutional suffocation, as it appears that the rule of law does not work if the issue relates to an identified area of constitutional protection afforded to a certain section of Indian citizens. In all the three above-quoted instances, States’ discriminatory and religiously prejudiced actions have become final, and the Muslim citizen has no further remedy to avail. The courts must recognise that State actions targeting mosques or restricting religious practice strike at the very heart of Articles 25 and 26. The demolition or closure of a mosque cannot be brushed aside as a matter of “alternative convenience”, or on notions of ‘public order’ or ‘planned development’.

Faith, for any community, is not a matter of geography or property; it is a matter of dignity. The Constitution demands that this dignity be preserved not bartered away. It is time for our courts to take a different approach to ensure that no arbitrary State action, however dressed, is allowed to bear the stamp of judicial approval.

MR Shamshad is a Senior Advocate practicing before the Supreme Court of India.