Justice Nazeer framed four questions in his reference order to be adjudicated by the larger bench
The observation in the 1994 Ismail Faruqui case that a mosque is not an essential part of Islam and namaz by Muslims can be offered anywhere, "even in open" was arrived without undertaking a comprehensive examination, Supreme Court judge Justice S Abdul Nazeer said Thursday.
The majority verdict by other members of the bench, comprising Chief Justice Dipak Misra and Justice Ashok Bhushan, declined to refer to a five-judge constitution bench the issue of reconsideration of these observations made in its 1994 verdict during the hearing of the Ayodhya land dispute.
Justice Nazeer, who dissented with the majority verdict, said that considering the constitutional importance and significance, the matter should be referred to a larger bench.
"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 judgement of Allahabad High Court given in 2010 has been affected by the questionable observations made in Ismail Faruqui case of 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 Faruqui," 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.
Justice Nazeer referred to three cases which were referred to the constitution bench recently. These were the challenge to the practice of polygamy, 'Nikah Halala' prevalent among Muslims, the issue of whether religious activities can be allowed in public parks and challenge to the practice of Female Genital Mutilation (FGM).
He directed the registry to place the matter before the Chief Justice of India for appropriate orders.
The issue of referring the observation of 1994 verdict had cropped up when a three-judge bench headed by the Chief Justice was hearing the batch of appeals filed against the Allahabad High Court's 2010 verdict by which the disputed land on the Ram Janmabhoomi-Babri Masjid area was divided into three parts.
A three-judge bench of the high court, in a 2:1 majority ruling of 2010, had ordered that the 2.77 acres of land be partitioned equally among three parties -- the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla, the deity.