Paving the way for hearing the Ram Janmabhoomi-Babri Masjid case from October 29, the Supreme Court on Thursday dismissed the plea to send a 1994 ruling which said that mosques are not necessary for holding prayers in Islam to a larger bench. The Muslim petitioners had claimed that the SC ruling in the Ismail Faruqui case came in the way of their claim in the title dispute in the Ram temple-Babri Masjid case.

In a 2-1 verdict in which Justice S Abdul Nazeer disagreed with Chief Justice Dipak Mishra and Justice Ashok Bhushan, the SC said that observations in 1994 judgment was not relevant for deciding the title suit. Justice Nazeer, however, said that the issue whether a mosque was an essential part of Islam can be decided only after detailed examination of the practice of faith, its tenets and beliefs. In his dissenting verdict he said that considering the constitutional importance and significance, the matter should be referred to a larger bench.

Justice Nazeer referred to the questionable observations in the Faruqui judgment saying these were arrived at without undertaking comprehensive examination and permeated the Allaha-bad High court ruling in the title suit.

“The conclusion in paragraphs of Ismail Faruqui 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’ has been arrived at without undertaking comprehensive examination,” he said. Justice Nazeer framed four questions in his reference order to be adjudicated by the larger bench, including, “Whether in the light of Shirur Mutt (1954) and other cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?”

The second question he framed was “whether the test for determining the essential practice is both essentiality and integrality?” The third question – “Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?”

The last question Justice Nazeer asked is, “Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?” The judge said it is clear from the earlier decisions of the apex court that the question whether a particular religious practice is an essential or integral part of the religion is a question which is to be considered taking into account the doctrine, tenets and beliefs of the religion. “It is also clear that the examination of what constitutes an essential practice requires detailed examination,” he said.

Justice Nazeer said the impugned judgment of Allahabad High Court given in 2010 has been affected by the questionable observations made in the Ismail Faruqui case of the apex court in 1994. “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 Far-uqui,” Justice Nazeer said.

In his 42-page dissenting verdict, Justice Nazeer said, Ismail Faruqui prima facie leads a different approach regarding the application of essential and/or integral test which also needs to be resolved as a matter of constitutional significance. “In my view, Ismail Faruqui needs to be brought in line with the authoritative pronouncements in Shirur Mutt and other decisions,” he said.

 — with PTI reports