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Justice Nazeer cites Ram Leela, puja in public parks to write dissent ruling in namaaz case

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Justice Nazeer disagreed with majority judgment which refused to refer to larger bench the question of whether mosque is integral to practice of Islam.

New Delhi: The Supreme Court, by a 2:1 majority, declined Thursday to reconsider its 1994 Ismail Faruqui verdict, which held that a mosque was not integral to Islam.

Petitioners appealing against the 2010 Allahabad High Court verdict, which ordered a three-way partition of the disputed Ayodhya plot, had challenged the 1994 judgment on the ground that it heavily inspired the trifurcation order.


Also read: Explained: All things Babri, Faruqui and Ayodhya


The bench, led by Chief Justice Dipak Misra, said the “law isn’t always logical” and that “the facts of the Faruqui case”, which was a land acquisition matter, did not apply to the Babri Masjid-Ram Janmabhoomi case, the title suit.

While the majority order was supported by CJI Misra and Justice Ashok Bhushan, the third member of the bench, Justice S. Abdul Nazeer, dissented with the refusal to refer the issue to a larger bench.

“The contentious observations in the Faruqui case have influenced the 2010 Allahabad High Court judgment,” he wrote.

“I have had the privilege of reading the erudite judgment of my learned brother Justice Ashok Bhushan,” he said, adding, “My learned brother has held that the questionable observations made in… Dr M. Ismail Faruqui and Ors versus union of India… are not relevant for deciding these appeals.”

“I am unable to accept this view expressed by my learned brother,” he said.

On Ismail Faruqui judgment

“The conclusion in paragraph 82 of Ismail Faruqui that ‘a mosque is not an essential part of the practice of the religion of Islam, and namaaz (prayer) by Muslims can be offered anywhere, even in the open’, has been arrived at without undertaking comprehensive examination.”

“Now, the question is whether the impugned judgment has been affected by the questionable observations in Ismail Faruqui.”

“A perusal of the impugned judgment shows that learned advocates appearing for the parties have repeatedly quoted various paragraphs of Ismail Faruqui while arguing the case and have also placed strong reliance on the questionable observations made in Ismail Faruqui.”

“Hence, it is clear that the questionable observations in Ismail Faruqui have certainly permeated the impugned judgment. Thus, the impugned judgment can be claimed to be both expressly and inherently affected by the questionable observations made in Ismail Faruqui.”

When similar matters were referred to a Constitution bench

Justice Nazeer cited three other matters of religious significance referred to the Constitution bench of late.

Referring to a plea seeking a ban on female genital mutilation (FGM), he said, “It was submitted by the senior counsel appearing for the contesting respondent that the matter should be referred to a larger bench for an authoritative pronouncement because the practice is an essential and integral practice of the religious sect.”

About a matter pertaining to a policy decision that permitted Ram Leela and Puja once a year in public parks, referred to a Constitution bench this July, he said, “The appeal raises a question of great constitutional importance as to whether such activities can be allowed in state-owned premises in view of our Constitution being secular in nature. The Hon’ble Chief Justice is, therefore, requested to constitute an appropriate bench to hear the aforesaid matter,” he said, quoting the Supreme Court order referring the matter to a Constitution bench.

Justice Nazeer also invoked the Sameena Begum case about polygamy in Islam, referred to a Constitution bench in March.


Also read: After Aadhaar, Ayodhya verdict another leg-up for BJP camp


“At this juncture, a submission has been advanced at the bar that keeping in view the importance of the issue, the matter should be placed before the Constitution Bench,” he quoted the Supreme Court reference as saying.

“Accepting the said submission, it is directed that the matter be placed before the Hon’ble Chief Justice of India for constitution of appropriate Constitution Bench for dwelling upon the issues which may arise for consideration from the writ petitions,” he added.

Citing precedent

“It is clear from the aforesaid decisions that the question as to whether a particular religious practice is an essential or integral part of the religion is a question which is to be considered by considering the doctrine, tenets and beliefs of the religion,” Justice Nazeer said. (Referring to the Tilkayat Shri Govindlalji Maharaj judgment, 1963).

“What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrine, tenets and beliefs of that religion itself.” (Referring to the Shirur Mutt judgment, 1954)

Issues of law to be considered 

“Considering the constitutional importance and significance of the issues involved,” Justice Nazeer said, they needed to be referred to a larger bench.

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