21 judgment puts spotlight back on title suit COURT VERDICT VINDICATES OUR STAND: SUNNI WAQF BOARD
DISSENTING VOICE Justice Nazeer says the 1994 observation that a mosque was not an essential part of Islam was in a limited context. ‘Essential practice can only be determined after thorough examination’
NEWDELHI: In a strongly-worded dissent, justice SA Nazeer on Thursday called for a re-look of the 1994 Ismail Faruqui judgement that observed that a mosque is not an essential part of Islam and Muslims could offer prayers anywhere, even in the open.
Justice Nazeer was part of a three-judge bench led by Chief Justice Dipak Misra, which, by a 2:1 verdict, ruled the Faruqui decision didn’t require reconsideration by a larger bench and that the observation related to the mosque was in a limited context of acquisition of land where a religious structure stands. CJI Misra and j ustice Ashok Bhushan held the majority view.
The contention over the 1994 judgment arose while the special bench was hearing the Ramjanmabhoomi-babri Masjid title dispute. Lawyers for the Muslim parties pressed for a hearing before a larger bench of seven judges, as Faruqui was decided by a five-judge bench, arguing the 1994 judgment had a bearing on the Allahabad HC 2010 verdict that trifurcated the disputed land. Appeals against the HC verdict are pending before the top court since 2010.
Justice Nazeer differed with the majority view as he felt the observation in the 1994 judgment did permeate the HC judgement. Considering the constitutional importance and significance, the matter should be referred to a larger bench, the judge held.
What an essential practice is can only be determined after a thorough examination, the judge said. His view was that the 1994 case fell afoul of this principle. Also, the comment on the essentiality of offering prayers in a mosque has to be re-examined in the background of the constitutional right that allows propagation of religion, he said.
Earlier decisions of the SC make it clear that the doctrine, tenets and beliefs of a religion need to be considered while ascertaining if a particular practice is essential or integral to the religion. The 2010 HC judgment has been “affected by the questionable observations (of 1994),” justice Nazeer held.
“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,” he said.
In 42 pages, the judge referred to three cases where reference was made to larger benches for adjudication. The first being the petition challenging the practice of polygamy, the second on whether religious activities can be allowed in public parks and the third against female genital mutilation. Faruqui needed a re-look because it took a different approach regarding the application of essential or integral test, he held. Babri Masjid is built The first recorded incident of violent communal conflict over a dispute that the mosque was built over a temple.
An idol of Ram Lala mysteriously appears inside the mosque. Hindus begin offering prayers. Local Muslims protest and both parties file civil suits. The city magistrate attaches the property and locks the gates but prayers continue.
Faizabad sessions judge allows Hindus to worship at the site.
Prime Minister Rajiv Gandhi allows shilanyas at an “undisputed site”. BJP president L K Advani goes on a rath yatra and is arrested at Samastipur, Bihar. Thousands of kar sevaks gather in Ayodhya. The mosque is partially damaged and 30 are killed in police firing.
The Babri Masjid is demolished. Rioting breaks out all over India, leaving 1,200 people dead.
Three Allahabad high court judges begin hearings.
The Archaeological Survey of India claims to have found evidence of a temple beneath the mosque.
The Liberhan Commission submits report to then PM
Manmohan Singh,
17 years after its formation. Allahabad high court rules that the site should be trifurcated between Hindus, Muslims and the Nirmohi Akhara. Control of the main disputed section, where the mosque was torn down, is given to Hindus.
The Supreme Court suspends the high court ruling.
Supreme Court calls for an out of court settlement.
Supreme Court says senior BJP leaders LK Advani, Murli Manohar Joshi, Uma Bharti and others will be tried for allegedly conspiring to demolish Babri Masjid.
The Supreme Court decides to hear appeals challenging the 2010 Allahabad High Court verdict LUCKNOW: Zafaryab Jilani, senior advocate and counsel for the Sunni Central Waqf Board, a party in the title suit of the Babri Masjid-ramjanmabhoomi case, said the Supreme Court verdict vindicates the body’s stand.
“The apex court has said that the ruling given in the Ismail Faruqui case in 1994 was limited to only the context in which it was given [immunity from acquisition],” said Jilani, who is also the convener of the Babri Masjid Action Committee (BMAC).
Denying that the verdict was in any way a setback, Jilani said it would have no bearing on the outcome of the title suit, on which hearing will begin on October 29.
“I have said this before...we are ready to abide by the verdict of the court. But a misconception was created as if the outcome in today’s case would have an impact on the title suit,” he said.
Reacting to allegations that the issue was raised merely to delay the outcome in the title suit, Jilani said the matter was not raised by them but by the apex court. “If the opposite parties were not interested, why did they agree when the court asked them whether the issue should be taken up or not?” he said.
Jilani said by restricting, and clarifying, that the observations made in para 52 of the Faruqui case on ”a mosque not being integral to Islam”, to that particular context, the SC removed apprehensions in the minds of Muslims that the ruling could be applied, in general, in other cases.
He said the Supreme Court has emphasised that the civil suit has to be decided on the basis of evidence and the previous verdict has no relevance to it, Jilani said.
CB Pandey, a legal expert and former legal adviser to the governor of Uttar Pradesh, said, “Yes, the SC’S verdict means the appeal against Allahabad high court’s order on the issue will be heard as a civil dispute. The court’s judgment will be on the basis of available evidence. It will now either uphold or dismiss the HC’S order. The court may also remand the issue to the HC to rehear the case or modify the HC’S order.”
The Ram Janmabhoomi Nyas, which has been at the forefront of the temple movement, welcomed the judgment. “Construction of the temple is just a matter of time. After the Supreme Court’s verdict, Muslims must set aside their opposition to Ram Mandir and become facilitators in temple construction,” said Nyas chief Mahant Nritya Gopal Das.
Purshottam Narain Singh, a member of central advisory board of the Vishwa Hindu Parishad (VHP), said it was not in the interest of Muslims to refer the birthplace of Hindu god Ram as disputed.