Mosque integral part of Islam? Will matter be referred to Constitution Bench?

New Delhi, Sep 27: Is a Mosque an integral part of Islam? The Supreme Court will decide on this key question, which could have a bearing on the Ram Temple issue.

While hearing the appeals in the Ram Temple case, the Muslim appellants had pressed that the place fo a Mosque in Islam and the importance of the practise of offering prayers inside a Mosque should first be decided by a five-judge Bench. This should be first answered before the court goes into the title suit, the appellants had also said.

Today, the court would decide on whether to refer this question to a Constitution Bench or not.

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 original observation was made in 1994 in the Dr Ismail Faruqui judgment. 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."

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.