- (1.) AN interesting question of Muhammadan Law arises in this writ petition. The Question is whether a Muhammedan belonging to a particular sect has an absolute right to demand that the Imam of his sect would lead him to prayers and restrain others from preventing him from offering his prayers as desired by him. This leads to another basic question viz. is there any fundamental right in the matter of offering Namaz in a particular way ?
(2.) IT is well settled and admits of no doubt whatsoever that a Muslim of whatever sect and denomination he may be has a right to offer his Namaz in a masque dedicated to God. He cannot be restrained from doing so. A Muhammedan has an absolute right of entry into any Public masque for the purpose of offering his Namaz. IT does not matter at all as to who manages the mosque, nor the sect to which the founder of the masque belonged; it also does not matter as to which particular sect or school of thought, the person seeking entrance, for offering Namaz, belongs. Thus so far there is no dispute at all. Article 25 of the Constitution of India guarantees all citizens the right to freely Practise his religion. Article 26 Of the Constitution guarantees the freedom to manage religious affairs although it is subject to Public order, morality and health. "every religious denomination or section thereof shall have a right (a) to establish and maintain institutions of religious and charitable purposes and (b) manage its own affairs in the matter of religion, (c) to own and acquire movable and immovable property, and (d) to administer such property in accordance With law". This Article entitles every religious denomination to establish or maintain an institution for religious Purposes. Therefore, it is open to any sect or School of thought among the Muhomedans to establish and maintain an institution for religious purpose. This entitles a person to establish a mosque and dedicate it to Allah Talah and then make necessary arrangement for its maintenance for religious purposes. Such person or persons have the right to manage their affairs in the matter of religion and also to own and acquire and administer property dedicated to the mosque.
(3.) A question arises as to the meaning of the words "manage its own affairs in matters of religion". What is the scope of this provision which is enshrined in Article 26 (b) ?. Does it entitle the founder of the public masque or any sect in particular, to lay down its own Rules regarding the offering of Namaz or to offer Namaz led by a particular Pesh Imam. In the celebrated book on "principles of Mahomedan Law" by Mulla, 16th edition edited by Hon'ble M. Hidayatullah, Para. 218 defers to public mosques as follows : "public masque : - Every Mahomedan is entitled to enter a masque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a masque appropriated exclusively by the founder to any Particular sect or school can be used by the followers of any sect or school. The right to offer prayers in a masque is a legal right, for the disturbance of which a Muslim is entitled to seek relief in a Court of law. ";