Mosques and the law: India
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Are mosques integral to Islam?
1994 verdict of SC
From: AmitAnand Choudhary, Is mosque integral to Islam? Query may delay Babri case, March 24, 2018: The Times of India
Court May Re-Examine 1994 Decision
Adjudication of the politically sensitive Ayodhya land dispute case will be delayed as the Supreme Court said it will first decide whether the apex court’s 1994 decision that a “mosque is not an essential part of Islam” needs to be re-examined by a Constitution bench.
A bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer said it would examine whether a five-judge bench was required to go into the question of whether a mosque was integral to Islam, but they turned down the demand that the 70-year-old legal battle between Hindu and Muslim communities over ownership of the nearly 3 acres of Babri Masjid-Ram Janmabhoomi disputed land be also referred to a larger bench.
Senior advocate Rajeev Dhavan, representing one of the original plaintiffs, M Siddiq, now replaced by his legal heir after his death, said the entire case should be referred to a Constitution bench. “Why should only one part and not the entire case be referred to a Constitution bench,” he asked. Lawyers appearing for those who have claimed the Ayodhya site for construction of a Ram temple objected to reopening of the ‘Ismail Faruqui case’ of 1994 and said there was no need to refer any issue to a larger bench.
Dhavan: Mosques don’t lose significance even if demolished
The present three-judge bench should proceed with the Ayodhya dispute case, they contended.
However, the bench said it was necessary to examine the plea raised by the Muslim community contending mosque as a place of worship was a fundamental feature of Islam. “First, we must put the controversy (over whether mosque is essential to Islam) to an end,” said the bench, which had earlier referred to the decades-old legal battle as a mere “land dispute.”
The SC had said in its ‘Ismail Faruqui case’ of 1994, “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 the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India.”
Dhavan, in his two-hourlong argument, contended that the Faruqui case was wrongly decided by the apex court and the verdict contradicted an earlier SC judgment. “A mosque is forever. It does not lose its significance and it remains a place of worship even if it is demolished,” Dhavan said.
A 2018 explanation of the 2014 remark
‘Observation Need Not Be Read Broadly, No Need For Controversy’
A three-judge Supreme Court bench by 2-1 majority said an unnecessary controversy was being sought to be created by broadly interpreting the 1994 Ismail Faruqui judgment which had remarked that “a mosque is not an essential part of the practice of religion of Islam and namaz by Muslims can be offered anywhere, even in the open”.
While rejecting strenuous pleas for reference of this controversial, off-the-cuff remark in the Faruqui case for re-adjudication by a five-judge bench, CJI Misra and Justice Ashok Bhushan said the SC in 1994 had made the comment to dispel the argument that mosques enjoyed immunity from acquisition of land by the government.
Justice Bhushan, writing the majority judgment, said no religious structure, be it temple, mosque or church, enjoyed immunity from acquisition under the sovereign power of the government, which was exercised in 1993 to acquire the disputed land following demolition of the disputed structure on December 6, 1992. He said the observation in Faruqui case came while upholding acquisition of the disputed land by the central government.
The majority judgment said that the the Faruqui verdict was considering whether mosque was an essential part of Islam and whether acquisition of a mosque violated the fundamental right to religion. “Thus, the statement that a mosque is not an essential part of the practice of religion of Islam is in the context of the issue whether the mosque, which was acquired under Acquisition of Certain Areas at Ayodhya Act, 1993, had immunity from acquisition,” CJI Misra and Justice Bhushan said.
“The court held (in Faruqui case) that if the place where offering of namaz is a place of particular significance, acquisition of which may lead to the extinction of the right to practice of the religion, only in that condition the acquisition is not permissible and, subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. Thus, the observation... was made in reference to the argument of the petitioners regarding immunity of mosque from acquisition,” the bench said.
“No arguments having been raised before the constitution bench that Ram Janmabhoomi-Babri Masjid is a mosque of a particular significance, acquisition of which shall extinct the right of practice of the religion, the court had come to the conclusion that by acquisition of the mosque, rights under Articles 25 and 26 are not infringed,” Justice Bhushan said.
“The observation (in Faruqui case) need not be read broadly to hold that a mosque can never be an essential part of the practice of the religion of Islam,” the court said.
Justice Bhushan said, “The HC has held that judgment in Ismail Faruqui case does not decide any of the issues which are subject matter of the suit...”
A The Times of India editorial
In Faruqui’s Shade, September 28, 2018: The Times of India
Ayodhya title dispute and the Ismail Faruqui verdict need closure
Supreme Court has dismissed the 1994 Ismail Faruqui judgment’s observation that “a mosque is not an essential part of the practice of Islam and namaz” as having no bearing on the Babri Masjid-Ramjanmabhoomi title suit. The order paves way for hearings in the title dispute to resume by interpreting the observations in Faruqui in the specific context of government acquiring 67 acres in and around the disputed mosque, which it said “need not be read broadly”. But beyond Ayodhya, this observation in Faruqui is at variance with a secular republic’s mandate to preserve the sanctity of religious places.
Ideally, a seven-judge constitutional bench should review the Faruqui judgment because it gives political oxygen to other historical disputes related to religious structures and raises the possibility of more Ayodhya-like cleavages. Justice Bharucha’s minority view in Faruqui had termed the Ayodhya land acquisition on grounds of preserving public order as constitutionally impermissible. He noted that when adherents of the majority religion used force of numbers to assail the place of worship of another religion and disrupt public order, it was the duty of the state to protect the place of worship, not acquire it to preserve public order.
Justice Abdul Nazeer’s dissenting verdict on Thursday found that Faruqui influenced the 2010 Allahabad high court verdict portioning the land three ways. He asks whether an essential religious practice can be determined without detailed examination of religious tenets, as was the case in the 1994 verdict. In contrast to Faruqui, the Babri title suit must scrupulously strive to stay away from religious arguments and go strictly by property documents and civil laws. The title suit could also be heard by a larger bench, to benefit from more judicial minds applying themselves to the vexed dispute. Matters of religion must not distract from India’s great civilisational project of material and spiritual uplift. The ball is in SC’s court.
