Ayodhya: Is prayer at Mosque essential? SC refuses to refer question to larger Bench

New Delhi, Sep 27: The Supreme Court has refused to refer to a larger Bench a question of law that said Mosque is not integral to Islam. The court said that the 1994 ruling in the Ismail Faruqui case was in the context of peculiar facts.

It was only in the context of peculiar facts that the observation was made. The 1994 judgement said Mosque is not an integral part of Islam only to hold that Mosques are not immune from acquisition, the Bench observed.

Justice Ashok Bhushan while reading out the verdict said that a place of particular significance for practising religion has a different place in law. The acquisition under the 1993 act has already been upheld, he added.

The court also said that the Faruqui judgment does not decide any matter involved in these suits and that the suits must be decided on the basis of their own evidence. The court also said that the observations in the Faruqui case are not relevant for deciding suits or appeals.

The law is not always logical and each judgment is in context of its known facts. All temples, mosques, churches are equally relevant, the court also said. The bench ordered the main Ram Temple case for October 29 and the same will be heard by a three judge Bench.

Justice Abdul Nazeer however dissented in his verdict and said that he did not agree with the orders of the Chief Justice of India, Dipak Misra and Justice Ashok Bhushan. Justice Nazeer said that the question needed to be heard by a 7 judge Bench. The majority should not have dismissed the plea for the larger Bench like this.

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.