By MR Shamshad
Sep 28, 2018
In 1994, in the case of Dr Ismail Faruqui
vs Union of India, the Supreme Court made two serious observations. One, that a
mosque is not an essential part of Islam; and two, that the protection of law
to religious places can be tested on the basis of “particular significance”.
Of the three judges of the Allahabad high
court hearing the title suit at the time, two judges considered these
observations relevant for adjudication. In its 2010 judgment, the high court
quoted that portion of the SC verdict where the issue of “particular
significance” and “integral part of religion” with respect to the mosque was
mentioned in the Ismail Faruqui decision.
Ultimately, the high court decided Muslims
shall be entitled to only one third portion of the land, and that, too, not
where the mosque existed. The reason for arriving at that conclusion can be
safely understood that the Muslim right to claim the mosque appeared weak in
comparison to the Hindu right to the claimed birthplace of Lord Ram. There was
no option for the Muslim litigants but to take this issue to the Supreme Court
Now, the SC has said the observation in
Faruqui judgment was in the context of acquisition of land and non-availability
of immunity to mosques from the concept of eminent domain. But the apex court
has not clarified in clear terms whether the high court judgment, to the extent
that it relies on observations in the Faruqui case, shall be set aside or not.
The court has said that these civil appeals will be decided uninfluenced by the
This is not the first time that a
difference of opinion has cropped up between benches of equal strength of the
high court and the Supreme Court. Even otherwise, a larger question was raised
as to whether such observations can be made without undertaking the exercise of
the test of essentiality. Initially in 1954, five judges stated that essential
part of religion was to be ascertained with reference to the doctrine of that
religion itself. Later in 1964, it was stated that the court would enquire
whether the practice in question is religious in character and if it is,
whether it can be regarded as integral or essential part of that religion. In
ascertaining that, the court would depend upon evidence qua “tenets of its
religion” and “conscience of the community” concerned.
That being the reason, the minority view of
justice S Abdul Nazeer, is important where he says that the proposition in
Ismail Faruqui “needs to be brought in line with other judgments”.
The religious tenets and faith of Muslims
lead to the conclusion that mosque is essential part of Islamic faith and
practice. As far as the conscience of the Muslim community is concerned,
substantive majority feel that the mosque is essential to practice of namaaz,
essential for religious practice.
After this three judges’ judgment, the fact
remains that the said observation has its place in our law books which is
without discussion on religious practice, doctrine and belief of Muslims with
respect to the requirement of the mosque, as has been the established principle
so far. Such a finding or observation by the Supreme Court, the highest court
in our land, no matter what the context, cannot be based on intuitive
understanding and can only be the outcome of the judicial exercise of the test
of essentiality as laid down by this very court since 1954.
Equally, a strong reason for referring the
matter to a larger bench was because of the general importance of the matter.
On earlier occasions, cases have been referred to larger benches by simply
stating that the matter involved issues of “considerable importance” or general
For this dispute, the Supreme Court has
earlier stated that the act of demolition of the mosque was an act of “national
shame” and that it did not only demolish an ancient structure, but the faith of
the minorities in the sense of justice and fair play of the majority. In
contrast to the present judgement, two judges of the High Court in 2010 had
observed that the disputed land was a place where angels feared to tread and
also that it was the centre of the controversy between the two major communities
of the country. If this was not a fit case to refer to a larger bench on the
just the point of the matter being of importance, then in my considered view,
the Supreme Court shall have no occasion to refer any matter to a larger bench
on the ground of the importance of the matter. It must also be stated that
questions essential to the enjoyment of Constitutional Rights have been raised
by both parties.
Considering the fact that the present CJI
will be demitting office soon, and further considering that this litigation is
of national importance, the future CJI was to be given the opportunity to
adjust the roster and place the matter on an appropriate date for placing the
matter before the appropriate bench. In the recent past, we have witnessed the
controversy in national news regarding the prerogative of the CJI for roster
MR Shamshad is Advocate on Record in Supreme Court for Iqbal Ansari
that Masjid/Mosque is integral to Islam
(22:40) (They are) those who have been expelled from their
homes in defiance of right,- (for no cause) except that they say, "our
Lord is Allah". Did not Allah check one set of people by means of another,
there would surely have been pulled down monasteries, churches, synagogues, and
mosques, in which the name of Allah is commemorated in abundant
measure. Allah will certainly aid those who aid his (cause);- for verily Allah
is full of Strength, Exalted in Might, (able to enforce His Will).
The above verse says that “monasteries, churches,
synagogues, and mosques, in which the name of Allah is commemorated in
abundant measure” are not to be pulled down
(24:36) (Lit is such a Light) in houses, which Allah hath
permitted to be raised to honour; for the celebration, in them, of His name: In
them is He glorified in the mornings and in the evenings, (again and again),-
The house is the house of Allah or a masjid.
(2:187) ….but do not associate with your wives while ye are
in retreat in the mosques.
Retreating to a mosque during Ramadhan, is also an integral
part of practicing the faith
(2:43) And be
steadfast in prayer; practise regular charity; and bow down your heads with
those who bow down (in worship).
Where else can Muslims pray with others except in a mosque?
(17:1) Glory to (Allah) Who did take His servant for a
Journey by night from the Sacred Mosque to the farthest Mosque, whose precincts
We did bless,- in order that We might show him some of Our Signs: for He is the
One Who heareth and seeth (all things).
There numerous other references to the first mosque which is
also called the Sacred Mosque.