New Delhi: The Supreme Court on Thursday said that the 1994 ruling, which said “a mosque is not an essential aspect of Islam and namaz by Muslims can be offered anywhere, even in the open”, does not require reconsideration by a Constitution Bench.
A bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and Abdul Nazeer, by a majority of 2:1, held that there was no need for referring the matter to a five-judge Constitution Bench and the title suits could be decided by a three-judge bench itself.
On the “questionable observations” made by a Constitution Bench in 1994, Justice Bhushan, who wrote for himself and the CJI, held that the “questionable observations were made in the context of immunity from acquisition of a mosque”.
The bench rejected the arguments that the observations made by the Constitution Bench in 1994 had influenced the decisions made by the Lucknow bench of the Allahabad high court in 2010 while allocating two-thirds share of the disputed site to Hindus and one-third to the Sunni Waqf Board.
The bench said the questionable observations came to be made in the conclusion that places of religious worship like mosques, churches, temples, etc can be acquired under the State’s sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution.
It pointed out that the Constitution Bench in 1994 had unequivocally laid down that every immovable property — be it a temple, church or mosque — is liable to be acquired, and a mosque does not enjoy any additional protection, which is not available to places of worship of other religions.
The bench said the issues, which have arisen in these appeals, are no doubt important issues, which have to be heard and decided. Normally, appeals arising out of suits are placed before a bench of two judges, but looking to the importance of the matter, these appeals had already been placed before a three-judge bench. The questionable observations were made in the context of land acquisition. The observations were neither relevant for deciding the suits nor relevant for deciding these appeals, the bench held, and directed that the appeals will be decided for hearing on October 29.
In a dissenting verdict, Justice Nazeer said the question on whether a particular religious practice is an essential or integral part of the religion is a question that should be decided by considering the doctrine, tenets and beliefs of that religion.
The observation that a mosque is “not an essential part of the practice of Islam and that namaz by Muslims can be offered anywhere, even in the open” has been arrived at without undertaking a comprehensive examination, he felt. It was clear that the questionable observations had certainly permeated the high court’s judgment in the title suits. Further, the observations lead to a different approach regarding application of the essential and/or integral test, which also needs to be resolved as a matter of constitutional significance. Thus, he said a five-judge Constitution Bench should hear the matter.
The appeals will now be heard on October 29. Those who filed the appeals include the Sunni Central Waqf Board of Uttar Pradesh, the Nirmohi Akhara; the All-India Hindu Mahasabha and the Bhagwan Shri Ram Virajman. There are voluminous records, scripts and documents in seven languages — Sanskrit, Pali, Hindi, Persian, Arabic, Punjabi and Urdu — which are to be translated into English.
On behalf of Hindus, it was argued that having accepted that the disputed site was the birthplace of Lord Ram, there was no reason why one-third of the land was to be given to Muslims for construction of a mosque. They wanted the entire area granted to Hindus to facilitate the construction of a Ram Mandir.
The appeal on behalf of Muslims raised several other questions, including whether myth, belief or faith could be substituted by history for the purposes of application of law for the time being; and whether in view of the fact that the devotees of Lord Ram demolished the building during the pendency of the suit, relief could be given to such a plaintiff.
