Ayodhya [Day-5] The Matter Should Be Considered by A Five/Seven Judge Constitution Bench :Rajeev Dhavan [Read the Written Submissions]

Rajeev Dhavan, on Tuesday, warned of contempt proceedings on the ground of certain remarks pertaining to the Ayodhya matter which is sub judice, “while this case is being argued, people should restrain themselves like we have...we have considered contempt...I would caution all not to muddy the waters”.

As the hearing in the string of appeals against the 2010 judgment of the Allahabad High Court resumed before the Supreme Court bench of Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice Abdul Nazeer, Senior Counsel Rajiv Dhavan advanced submissions on concepts of ‘essentiality’ and ‘integrality’ of a religious practice to a religion, in the light of the 1994 Ismail Farooqui judgment.

In so far as it has been observed therein that “While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice, unless the place has a particular significance for that religion so as to form an essential or integral part thereof”, he contended, “this is complete denudation of the Essential Practices Doctrine...by virtue of Article 25, one cannot say that only the famous mosques and not the others shall be protected...”

Dr. Dhavan relied on Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of UP (1997), wherein the apex court had observed that in determining whether the particular matters of religion or practices or belief are an integral part of the religion, It must be examined if the practices or matters are considered integral by the community itself and not be governed solely by the concept of essentiality.

“The concept of ‘integrality’ watered down to ‘comparative significance’ and ‘particular significance’, and the whole constitution is rewritten...whether ‘integrality’ trumps ‘essentiality’, Your Lordships have to decide...the locus classicus of the 7 judge bench judgment in Swamiar [The Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)], is on ‘essentiality’...”, he submitted.

“...what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself...Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters...”, it was noted in the 1954 judgment.

“The broad principle of ‘essentiality’ in Shirur Mutt is cut down by ‘integrality’...”, submitted the Senior Counsel.

He also indicated the minority judgment of Chief Justice Bhuvneshwar P. Sinha in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962), upholding the Bombay Prevention of Excommunication Act of 1949 qua the right claimed by the head of the Dawoodi Bohra community under Articles 25 and 26 to excommunicate any of its members under prescribed limits.

The majority judgment in Saifuddin Saheb noted that the protection of articles 25 and 26 is not limited to matters of doctrine or belief but extends also to acts done in pursuance of religion and therefore contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. Further, it prescribed that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.

In the light of the above observation, Chief Justice Misra opined, “I feel Articles 25 and 26 protect both the essential as well as the integral parts of a religion...they are synonymous...”

“In America, only the test of bonafides is applied...whether a practice is a bonafide part of a faith”, submitted Dr. Dhavan on Tuesday.

In as much as the Ismail Farooqui judgment observes, “Ayodhya is said to be of particular significance to the Hindus as a place of pilgrimage because of the ancient belief that Lord Rama was born there, the mosque was of significance for the Muslim community as an ancient mosque built by Mir Baqi in 1528 A.D. As a mosque, it was a religious place of worship by the Muslims. This indicates the comparative significance of the disputed site to the two communities...”, He advanced, “the reference to ‘comparative significance’ is objectionable to constitutional principles...faiths cannot be compared and set against each other...”

“The concepts of ‘comparative significance’ and ‘particular significance’ invoke a comparison of religions which is injurious to the principle of secularism”, he added.

In context of section 7(2) of the Acquisition of Certain Area at Ayodhya Act of 1993, stipulating that the position, as it existed before the commencement of Act, is to be maintained in respect of the area commonly known as the ‘Ram Janma Bhumi - Babri Masjid’, he advanced, “It has to be determined whether the reference to ‘comparative use’ (in Ismail Farooqui) for the purpose of status quo under section 7(2) was fair or not”.

Thereupon, he proceeded to indicate the influence of Ismail Farooqui on the separate judgments tendered by Justices D. V. Sharma, Sudhir Agrawal and S. U. Khan in 2010.

“Even these appeals are based on Ismail Farooqui...that the Muslims’ right to pray is not protected by Article 25 and that the Hindus’ right is superior”, he continued.

On Tuesday, Dr. Dhavan cited the 1994 apex court judgment in Mohd. Aslam v. UOI, in so far as, in context of the demolition of the Babri Masjid in 1992, it was observed therein, “The gravamen of the charge in these contempt petitions is that Shri Kalyan Singh, the then Chief Minister of the State, in view of his ideological and political affinity with the Bharatiya Janata Party and the Vishwa Hindu Parishad and their commitment to the building of Sri Ram temple, deliberately encouraged and permitted the grossest violation of the Courts' orders”

“This is the reality of what had happened...The reason I am mentioning this judgment is because Ismail Farooqui takes a light view of of the incident of demolition by stating that the Hindu community has to ‘bear the cross on its chest’ for the acts of ‘miscreants’ suspected to belong to the same religious fold...”, he remarked.

Referring to the order in Mohd. Aslam @ Bhure v. UOI (March, 2002), to the effect that on the 67.703 acres of land, comprising the disputed site, which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumipuja or shila puja, shall be permitted or allowed to take place, And that the same shall be retained by the Government, no part of the land being permitted to be occupied or used for any religious purpose, Dr. Dhavan advanced, “this is the nature of the status quo”.

Finally, he relied on the March 31, 2003 constitution bench judgment of the Supreme Court in Mohd. Aslam @ Bhure, commenting, “In principle, the constitution bench appreciated the judgment in Ismail Farooqui...subsequently, it was followed by the Lucknow bench (in the impugned judgment)”.

“In views of the judgment of a seven judge bench and that of a five judge bench in Ismail Farooqui, the appeals against the impugned judgment should be considered by a bench of five or seven judges...I can only make the point...it is for Your Lordships to decide...”, concluded Dr. Dhavan.

The Senior Counsel, on Tuesday, also warned of contempt proceedings on the ground of certain remarks pertaining to the matter which is subjudice, “while this case is being argued, people should restrain themselves like we have...we have considered contempt...I would caution all not to muddy the waters”.

In his turn, Senior Counsel K. Parasaran placed before the bench propositions in respect of the reconsideration of a judgment sought by those not party thereto and by those whose interests were represented therein, and the principle of res judicata as it applies to a public right under section 11 of the C. P. C.

He also indicated the following observation of the apex court in Gopakumar B. Nair v. CBI (2014)- “Reference of a case to a larger Bench necessarily has to be for a reconsideration of the principle of law on which the case has been decided and not the merits of the decision. The decision rendered by any Bench is final inter-parte, subject to the power of review and the curative power. Any other view would have the effect of conferring some kind of an appellate power in a larger Bench of this Court which cannot be countenanced. However, the principle of law on which the decision based is open to reconsideration by a larger Bench in an appropriate case”

The hearing shall continue on Thursday.