“To offer namaz is an essential practice of Islam, but to offer namaz at a mosque may not necessarily be an essential practice,” senior advocate K Parasaran, appearing for Ram Lalla Virajman, told a bench hearing the Ayodhya land dispute case on Thursday.
Parasaran was responding to senior advocate Rajeev Dhavan’s demand that the 1994 decision of the apex court in K M Ismail Faruqui case in which it was held that “a mosque is not an essential part of the practice of the religion of Islam…” and “accordingly, its acquisition is not prohibited by the provisions in the Constitution of India” be referred to a Constitution bench before any decision was taken on the main title suit.
Dhavan contended that the Faruqui verdict, which was “founded on a confusion regarding the application of the essential and/or integral test”, had impacted the September 2010 Allahabad High Court decision in the Ayodhya title suit. The High Court ordered a three-way partition of the 2.77 acres between the three parties to the dispute — Ram Lalla Virajman, Nirmohi Akhara and Sunni Wakf Board. Parasaran submitted that the court’s findings in the Faruqui case were in the limited context of acquisition under the Ayodhya Act.
The order had not made any distinction between places of worship of different religions, he said, pointing out that the judgment had held that all public religious institutions like church, mosque and temple can be validly acquired in exercise of the inherent power of the Sovereign on the principle of eminent domain.
“Assuming without admitting that by a further reference to a larger bench Dr Ismail Faruqui is overruled, nevertheless, in so far as Ayodhya Janmasthan Babri Masjid is concerned, the judgment in Dr Ismail Faruqui will still be binding on the appellants on the principle of finality. See for principle, Explanation to Order 47 Rule 1 of CPC, which states that, ‘The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment’,” Parasaran said. “Ayodhya was of significance to Hindus because of the belief that Lord Ram was born there,” he said.
Appearing for parties backing the temple, senior advocate C S Vaidyanathan took exception to Dhavan’s contention that there were “questionable aspects” in the Ismail Faruqui judgement. “It is completely unwarranted and inappropriate,” the counsel said. Dhavan said he was withdrawing the expression and it may be read as “controversial questions of law”.