Is a Mosque essential for Islam and Namaz: De-coding the 1994 SC verdict

New Delhi, Sep 24: In his final week in office, Chief Justice of India, Dipak Misra would pronounce an important verdict relating to the Ram Temple issue. It must be clarified here that the verdict is not relating to the title suit, but regarding a point of law that arose out of the Dr. Ismail Faruqui verdict of the Supreme Court in 1994.

The point of contention is whether a Mosque is an essential part of Islam. This point came up when the Bench comprising CJI Misra and Justices Ashok Bhushan and Abdul Nazeer were hearing a batch of appeals arising out of the 2010 verdict of the Allahabad High Court in the Ram Janmabhumi case.

The Dr Faruqui verdict:

Under challenge before a Bench comprising Justices M V Verma, G Ray and S Bharucha in 1994 was the constitutional validity of the Acquisition of Certain Area at Ayodhya Act of 1993.

While delivering the verdict, the Bench had gone into the aspect, whether a Mosque is an essential part of Islam. The Bench while summarising this aspect said that under the Mohammedan Law applicable in India, title to a Mosque can be lost by adverse possession.

"If that is the position in law, there can be no reason to hold that a Mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State."

"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.

Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such."

"Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right," the three judge Bench had observed while disposing of the petitions.

Under challenge:

Senior counsel Rajeev Dhawan arguing for the Sunni Waqf Board pressed for a reference to the 1994 verdict as it observed that Mosque is not an essential part of Islam and that namaz can be offered even in the open. He said that these comments are questionable and had infiltrated into the judgment of the trial court.

Dhawan said that what is invoked now is a pure question of law as to what essential practises are and how they are to be proved. He said that where the decision is on a pure question of law, then res judicata does not preclude a court from deciding such question differently.

Legal experts say that although the current Bench is not adjudicating on the title suit, the interpreting or answering the question of law could have a bearing on the original appeals. The Bench could either uphold the contention in the 1994 verdict, interpret it or totally strike it down, experts also say.

Once this question of law is answered, the matter would then be referred to a Constitution Bench, which would finally decide on the title suit as a result of which it would become clear whether a Ram Temple can be constructed in Ayodhya or not.