A three-judge Bench of the Supreme Court, in a majority opinion of 3:1 on Thursday, declined to refer the question whether 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 of INdia Dipak Misra and Justice Ashok Bhushan ordered that the hearing in the main Ayodhya title suit appeals should resume from October 29.
With Chief Justice Mr. Misra retiring on October 2, a new three-judge Bench would be constituted.
Justice S. Abdul Nazeer, in a stinging dissent, observed that the question of what is essential and what is not in a religion cannot be hastily decided as is being done by the majority on the Bench now.
He held that the question raised on the essentiality of offering prayers in mosques should indeed be first examined by a seven-judge Bench before the Ayodhya suit appeals are gone into.
Justice Mr. Nazeer said the questions raised during the Ayodhya appeals hearing about the comment made by the Supreme Court in the Ismail Faruqui judgment, about the essentiality of offering prayers in a mosque and that Muslims can even pray in the open, need a “comprehensive examination” by a seven-judge Bench.
Justice Mr. Nazeer held that the comment in the Faruqui judgment on the essentiality of offering prayers in a mosque has to be examined by a seven-judge Bench in the background of the fundamental right against discrimination under Article 15 and the protection guaranteed to practice and propagate religion in Articles 25 and 26 under the Constitution.
The bone of contention
The bone of contention here is an observation made in a 1994 judgment of the Supreme Court in the Ismail Faruqui case 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”.
As the hearings progressed in the appeals, the Muslim appellants 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. They said this question should be answered before the court goes into the main title dispute.
Speaking for himself and the Chief Justice, Justice Mr. Bhushan said references cannot be made to a larger Bench because of such “questionable observations” in an earlier judgment. Such observations cannot be treated as “governing factors” for a reference to a seven-judge Bench.
Context of the comment
Justice Mr. Bhushan said the comment was made in the context of government acquisition of places of worship. The observation came in the context of the court saying that no place of worship, whether temple, church or mosque, can be 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.
Acquisition, Justice Mr. Bhushan observed, is a sovereign power. Places of worship of all religions are liable to be acquired under the government’s power 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.
“If congregation part of Islam is taken away, a large part of Islam goes worthless. Mosques are meant for congregation and prayer,” Mr. Dhavan had argued on why mosques are “essential”.
Senior advocate C.S. Vaidyanathan, for one of the contesting Hindu bodies, had countered that the observation in the 1994 judgment, read in its entirety, only points to the fact that all places of worship are equally susceptible for government acquisition.
In fact, the particular paragraph in the judgment reads 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. 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”.