‘Mosque not an essential part of Islam’ remarks need reconsideration: SC Judge Nazeer

Justice Nazeer for rethink on 1994 order

Updated - September 27, 2018 10:53 pm IST

Published - September 27, 2018 10:47 pm IST - NEW DELHI

The statement that “praying in a mosque is not an essential part of Islam and namaz by Muslims can be offered even in the open” by a Constitution Bench of the Supreme Court in a 1994 judgment played a role in the Allahabad High Court decision to partition the disputed Ram Janmabhoomi-Babri Masjid site, Justice S. Abdul Nazeer held on Thursday.

A three-judge Bench of the High Court had partitioned the disputed site among Hindus, Muslims and the Nirmohi Akhara in September 2010. It is this decision which is in appeal now in the Supreme Court.

In his stinging dissent, Justice Nazeer disagreed with the majority opinion of Chief Justice Dipak Misra and Justice Ashok Bhushan that the comment made in the 24-year-old Ismail Faruqui judgment of a Constitution Bench has no relevance in the present Ayodhya title suit appeals.

Justice Nazeer observed that the remark “permeated” the arguments of the lawyers who fought the Ayodhya title dispute before the High Court. Justice Nazeer gave extracts from the voluminous judgments of the High Court to show the impact made by the remark.

“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,” Justice Nazeer held.

The dissenting judge agreed with submissions made by senior advocate Rajeev Dhavan that the Supreme Court is “obliged to examine the faith to make this statement”.

Justice Nazeer said the comment cannot be brushed under, especially in the background of an issue as sensitive as the Ayodhya dispute.

In this regard, Justice Nazeer quoted one of the Allahabad High Court judges, Justice S.U. Khan, who gave the September 2010 verdict about the “risk” in deciding the Ayodhya case.

Justice Khan had famously said that “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”.

Justice Nazeer said the Ismail Faruqui judgment should be “brought in line”. The question of essentiality of offering prayers in a mosque should be referred to a seven-judge Bench, which should examine the issue in light of the beliefs, tenets and practice of the faith in question.

The seven-judge Bench should also answer questions whether offering prayers in places of worship of “particular significance” alone is protected under the right to freedom of religion under the Constitution.

The judge was addressing arguments that Babri Masjid was not a mosque with particular significance.

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