A judges Bench of the Supreme Court, in a ruling view of 3:1 on Thursday, 27.09.2018 declined to refer the question whether a “mosque as a place of prayer is an essential part of Islam” in the Ramjanmabhoomi-Babri Masjid appeals to a larger Bench.
The majority view by Chief Justice of India (CJI) Dipak Misra and Justice Ashok Bhushan ordered that the hearing in the main Ayodhya title suit appeals should resume from October 29.With Chief Justice Misra retiring on October 2, a new three-judge Bench would be constituted.
Justice Nazeer said the questions raised during the Ayodhya appeals hearing about the comment made by the Supreme Court in the Ismail Faruqui judgment, about the essentiality of offering prayers in a mosque and that Muslims can even pray in the open, need a “comprehensive examination” by a seven-judge Bench.
Justice S. Abdul Nazeer, in a stinging dissent, observed that the question of what is essential and what is not in a religion cannot be hastily decided as is being done by the majority on the Bench now.
The bone of contention here is an observation made in a 1994 judgment of the Supreme Court in the Ismail Faruqui case that “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”.
As the hearings progressed in the appeals, the Muslim appellants pressed that the place of a mosque in Islam and the importance of the practice of offering prayers inside a mosque should be first decided by a five-judge Bench. They said this question should be answered before the court goes into the main title dispute.
Speaking for himself and the CJI, Justice Mr. Bhushan said references cannot be made to a larger Bench because of such “questionable observations” in an earlier judgment. Such observations cannot be treated as “governing factors” for a reference to a seven-judge Bench.
