Majority ruling cause for concern

The majority view of a three-judge bench of the Supreme Court, pronounced last week, on an observation made by a Constitution bench in the 1994 Ismail Farooqi case on the role of mosques in Islam does not answer all the questions raised by that judgement. The judgement had held that “a mosque is not an essential part of the practice of Islam’’. The court has now explained that the Ismail Farooqi judgement is relevant only in the context of acquisition of land, and will not have a bearing on the Ram Janmabhoomi-Babri Masjid title dispute which is now before it. The Ismail Farooqi case arose in the wake of the government acquiring 67 acres of land on which the Babri Masjid had stood. Though the court says that the observation “need not be read broadly’’, there is a view that it might apply to other land acquisition cases. This may impact similar cases in future.

The petition before the court was for the formation of a larger bench to review the Ismail Farooqi judgement. Justice S Abdul Nazeer, in his dissenting opinion, supported the plea for a larger bench as constitutional and other issues were involved in the case. The petitioners had argued that a detailed examination of religious beliefs, tenets and practices was necessary to decide on the essentiality of a religious practice. Justice Nazeer agreed with this and cited other grounds and precedents for conceding the demand. Just a few days ago, a three-judge bench of the court had referred the issue of female circumcision to a larger bench to decide whether it is an essential practice of religion. Justice Nazeer also pointed out that the questionable observation in Ismail Farooqi “expressly and inherently’’ influenced the 2010 Allahabad high court verdict which apportioned the disputed land in three ways among the Sunni Wakf Board, Nirmohi Akhara and Ram Lalla. It was when a three-judge bench headed by Chief Justice of India Dipak Misra, who retires today, was hearing appeals against the Allahabad high court judgement that the 1994 observation was brought to its notice. 

The immediate result of the court’s ruling in Ismail Farooqi is the expeditious hearing of the appeals. The court has set October 29 as the date when those hearings can begin. It has said that it will hear the case only as a title dispute. But the court’s observations during the hearing and its verdict will have a serious political impact in the country in the weeks and months before the general elections. Courts have their own logic in assigning cases and deciding schedules. But they should be mindful of the consequences of their decisions in sensitive times. The majority judgement is cause for concern.

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