A three-judge Bench of the Supreme Court, in a majority opinion of 2:1 on Thursday, declined to refer the question if a “mosque as a place of prayer is an essential part of Islam” in the Ramjanmabhoomi-Babri Masjid appeals to a seven-judge Bench.
The majority view by Chief Justice Dipak Misra and Justice Ashok Bhushan ordered that the hearing in the main Ayodhya title suit appeals should resume in the week commencing from October 29. With Chief Justice Misra retiring on October 2, a new three-judge Bench would be constituted.
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The bone of contention here is an observation made by a Constitution Bench of the Supreme Court in the 1994 judgment in the Ismail Faruqui case. It had stated 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”.
Justice S. Abdul Nazeer, in a stinging dissent, observed that the question of what is essential or not in a religion cannot be hastily decided. He held that the question raised on the essentiality of offering prayers in mosques should indeed be examined by a seven-judge Bench before the Ayodhya suit appeals are heard.
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Justice Nazeer said the questions raised during the Ayodhya appeals’ hearing about the comment made in the Ismail Faruqui judgment require a “comprehensive examination” by a seven-judge Bench.
Fundamental rights
What is essential or not in a religion can be decided only after studying tenets, beliefs, and doctrines. Justice Nazeer held that the comment has to be examined in the background of the fundamental right against discrimination under Article 15 and the protection guaranteed to practice, profess and propagate religion in Articles 25 and 26 under the Constitution.
As the hearings progressed in the appeals, the Muslim appellants had pressed that the place of a mosque in Islam and the importance of the practice of offering prayers inside a mosque should be first decided by a five-judge Bench.
'1994 order in context of acquisition'
Speaking for the majority judgement of himself and the Chief Justice on the issue of referring the question “if a “mosque as a place of prayer is an essential part of Islam”, in the Ramjanmabhoomi-Babri Masjid appeals, to a seven-judge Bench, Justice Ashok Bhushan said references cannot be made to a larger Bench merely because of “questionable observations” made in an earlier judgment.
Such observations cannot be treated as “governing factors” for a reference, he said.
Justice Bhushan said the statement made in the 1994 Faruqui verdict was in the context of whether the mosque, which was acquired by the Ayodhya Act of 1993, had immunity from acquisition.
The statement meant that no place of worship, be it a temple, church or mosque, is immune from acquisition. It merely wanted to convey that mosques had “no special immunity from acquisition”. The context had nothing to do with the essentiality of the practice of offering prayers or namaz in a mosque, he said.
Acquisition, Justice Bhushan observed, is a sovereign power. The power of acquisition is available for a mosque like any other place of worship. Places of worship of all religions are liable to be acquired by the government under the Doctrine of Eminent Domain.
Senior advocate Rajeev Dhavan, for the Muslims appellants, had argued that the observation in the Ismail Farooqui judgment has affected the status of mosques in Islam. The majority view also dismissed Mr Dhavan’s exception to the observation made in the Faruqui judgment that Ayodhya, being the place of birth of Lord Rama, has “particular significance”.
“We have observed above that phrase ‘particular significance’ was used (in the Faruqui verdict) only in context of immunity from acquisition. What the court held was that if a religious place has a particular significance, the acquisition of it violates the right of religion under Articles 25 and 26. Hence the said place of worship has immunity from acquisition,” Justice Bhushan explained.