Column | Educative Role of the Judiciary


When I was a Judge in the Allahabad High Court a petition came up before a division bench (of which I was the senior member) in Mohd. Sharif Saifi vs. State of U.P., Writ Petition 43403/1998 decided on 28.1.1999.

The grievance of the petitioner was that he was not being allowed to build a mosque on his land, and hence Article 25 of the Constitution was being violated.

Agreeing with his contention, we allowed the petition and observed:
“This is a free and secular country. Subject to public order, morality and health, anybody is entitled under Article 25 of the Constitution to build any house of worship, whether it is a mosque, church, temple, etc., on his own land or on anyone else’s land with the consent of that person.

Article 25 (1) of the Constitution states:
“Subject to public order, morality and heath and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”.

Hence, we make it clear that the petitioner is fully entitled to make a mosque on his own land or on someone else’s land with the permission of that person, and if he does so the authorities will give him full protection, and take strong action against anyone interfering with the petitioner’s right. No permission of the D.M. is required for this.

However, we would humbly suggest to the petitioner and others concerned that instead of mosques, temples, etc., the country requires more schools, hospitals, technical institutions, vocational training institutes, etc., for the country’s scientific and technological development. Half of the population of the State is illiterate and a large number of young people wish to get technical training in order to get employment, and hence it is absolutely essential that there should be more schools, technical institutes, vocational training institutes, hospitals, etc., so that the country progresses, and the welfare of the people is attended to.

Hence instead of building temples, mosques, etc., we recommend to all people (including the petitioner) to consider our suggestion, and follow it if it appeals to them.

In this connection we may also mention that Article 51-A (h) of the Constitution makes it a fundamental duty of all citizens to develop the scientific temper.

However, we again make it clear that this is only our humble suggestion, and the petitioner is fully entitled to make a mosque on his own land, or on someone else’s land with his consent, and the authorities will give him full protection for doing so”.

The decision of the Allahabad High Court, authored by me is a good example of the educative role of the judiciary, apart from its traditional adjudicatory role. In that decision while upholding the right of Muslims to build mosques, we appealed to Muslims not to do so, and instead build schools, technical institutes, hospitals, medical colleges, etc as that is what is required for the country’s progress, not more temples, mosques, etc.

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Article contributed by:

Justice Markandey Katju
Special Column
Justice Markandey Katju is the former Chairman, Press Council of India. Prior to his appointment as Chairman, Press Council of India, he served as a Judge at the Supreme Court of India. Before being elevated as a judge to the Supreme Court, he had earlier served as the Chief Justice of Delhi High Court, Madras High Court and as acting Chief Justice of Allahabad High Court.

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