M R Shamshad

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 said observations.

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 importance.

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 allocation.

This article was published in The Hindustan Times on 28th September, 2018
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