A Supreme Court judgment in 1994 in the Ayodhya case had ruled that while a Muslim can pray practically anywhere, the site of a Hindu temple is set in stone.
The Muslim litigants in the Ram Janmabhoomi/Babri Masjid dispute before the Supreme Court have received some unexpected expert legal advice this week that could boost their chances in court.
The unexpected jurist happens to be none other than Haryana chief minister Manohar Lal Khattar.
Does a Muslim need a mosque to pray? Khattar said in a statement that offering namaz should be restricted to mosques, idgahs or “private places”. Well, ironically, this is exactly what the Muslim groups have been arguing before the top court for years.
Their stand is that since a mosque is essential for offering prayers and is an “essential religious practice”, a mosque at the disputed site in Ayodhya is sacrosanct in order to exercise their fundamental right to freedom of religion. The secular Indian state has an obligation to protect that right guaranteed by the Constitution, they have argued in the Ayodhya case.
And herein lies the paradox.
Khattar should know that the Hindu groups in the case and many of his party workers who had stakes in the demolition of the Babri Masjid structure have argued that Islam does not dictate that prayers can only be offered in a mosque.
The Supreme Court did not buy this argument in 1994, but is now mulling over the issue again. In its judgment in Ismail Farooqui v Union of India, the court had said then that while a Muslim can pray practically anywhere, the site of a Hindu temple is set in stone. Prayers can be offered only there, it said.The court went on to say that offering prayers at any specific location is not an essential or integral part of religious practice.
The hearing in the Supreme Court on this issue, however, will be the last opportunity to settle this question — at least for a very long time to come.
A chief minister, no less is expected to know that the Constitution has no geographical limitations.
The Constitution of India gives every citizen the right to practice her religion subject to reasonable restrictions. The right is not reserved for just mosques or homes.
Senior lawyers Raju Ramachandran, Kapil Sibal and Rajeev Dhavan have now asked the court to set up a larger bench to reconsider the 1994 ruling before deciding the Ayodhya dispute. According to them, the Ismail Farooqui case has been wrongly decided by the court, and the Allahabad High Court had relied upon the 2010 ruling that allowed two-thirds of the disputed land to Hindus and one-third to the Muslims. It is this Allahabad High Court ruling that is now under challenge before the Supreme Court.
Given the seriousness of the issue, if the court decides to form a larger bench to reconsider the 1994 ruling first, the Ayodhya issue may not be decided before Chief Justice of India Dipak Misra retires in October this year. The Hindu groups in the case have termed the request to reconsider the ruling as a ‘delaying tactic’, but have not yet clarified their position on whether the case was decided correctly.
For the court to hold that the right to pray at a particular place, a mosque for example, needs to be protected constitutionally, the Muslims will have to prove that this is “essential to practicing their religion”. Not every aspect of religious practice will be protected, because while one has a right to practice religion, the law protects only those things that are essential and fundamental to practicing a religion.
This is why triple talaq, banning women in the inner sanctums of temples, etc. are not protected under the Constitution.
This will require the court to go into the doctrines of religion, and decide whether the practice in question is essential, or merely peripheral. In the hearing, lawyers will quote from the Quran to show the court that praying at a mosque is dictated by the holy book.
The argument they make is that a mosque enjoys a particular position in Islam, and once a mosque is established and prayers are offered in such a mosque, it becomes — for all time to come — a property of Allah. Even if the structure is demolished, like in Ayodhya, the place remains the same, and namaz can be offered.
Khattar’s statement is actually part of a larger debate that could change the course of this 25-year-old case. His callous response to a serious law and order situation in his state shows how politicians often ignore historical backgrounds of issues to make political headway in the present.
It is easy to dismiss those criticising Khattar’s statements as minority appeasers, but in the weeks to come, the Ayodhya case will ask some real questions about religion. Legislators must ponder them, instead of causing more confusion.