21 judgment puts spotlight back on title suit
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’
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 justice 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.