Ram Janmabhoomi-Babri Masjid Dispute: We Cannot Have A Narrow View Of The Essential Practices Doctrine: Rajiv Dhawan

As the hearing in 13 appeals arising from the 2010 Allahabad High Court judgment in the Ram Janmabhoomi-Babri Masjid dispute commenced on Wednesday, a Supreme Court bench of Chief Justice Dipak Misra, Justice Abdul Nazeer and Justice Ashok Bhushan has directed senior counsel Rajiv Dhawan to make submissions on whether the dictum in the case of Ismail Farooqui [(1994) 6 SCC 360] requires to be referred for reconsideration by a five-judge constitution bench.

In respect of the judgment in Ismail Farooqui, Dhawan raised two concerns: “One, regarding the affirmation of the judgment in Masjid, Shahid Ganj v SGP Committee, AIR 1940 PC 116, wherein it was observed that where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque; and two, in so far as Justice MV Verma had remarked that Muslims can pray anywhere”.

“The latter is similar to saying that people in India can go to bathroom anywhere and is offensive... the Allahabad High Court has partitioned the land into 3 segments; Muslims cannot be thrown off their own mosque. If there is any decency in our secular culture, we should re-build the mosque” he continued.

Proceeding to discuss the Essential Practices Doctrine and the significance of a mosque to Islam, he submitted, “Suppose a Roman Catholic wants to pray in a particular church in exercise of the Fundamental Right under Article 25, can one say that the Article is not involved and that he may pray at any other church? We cannot have a narrow view of the Essential Practices Doctrine.”

“Like Justice Ruma Pal (as a judge of the Calcutta High Court) had observed that the ‘tandava’ dance is an integral part of the religion of the followers of the Ananda Marga [in Commr. of Police v. Acharya Jagdishwarananda (1990); subsequently, affirmed by the Supreme Court in 2004],” he elaborated.

Quoting from the Ismail Farooqui judgment, in so far as it was observed therein that “Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially”, Dhawan submitted, “I say every mosque, temple or church is a place of particular significance...there cannot be an evaporation of the Essential Practices Doctrine...is my right to pray at the Babri Masjid not to be respected?...How about the great grand mosque in front of the Red Fort?...why is there a war in Jerusalem with regard to the Dome of the Rock? Because it is regarded as a part of the ‘Essential Practices’”.

Continuing to read from the 1994 judgment, he quoted: “It has been contended that a mosque enjoys a particular position in Muslim Law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah and the same never reverts back to the donor or founder of the mosque and any person professing Islamic faith can offer prayer in such a mosque and even if the structure is demolished, the place remains the same where the Namaz can be offered. As indicated herein before, in British India, no such protection was given to a mosque. The mosque was subjected to the provisions of statute of limitation thereby extinguishing the right of Muslim to offer prayers in a particular mosque lost by adverse possession over that property”.

In this regard, he submitted, “The mosque was built by Babur...it was rebuilt by the British (in 1934)...prayers have been offered there...it is still our land...there is no limitation...”

Thereupon, he read out the portion of the judgment, in so far as it says that “Section 3(26) of the General Clauses Act comprehends the categories of properties known to Indian Law. Article 367 of the Constitution adopts this secular concept of property for purposes of our Constitution. A temple, church or mosque etc., are essentially immovable properties and subject to protection under Articles 25 and 26. Every immovable property is liable to be acquired. Viewed in the proper perspective, a mosque does not enjoy any additional protection which is not available to religious places of worship of other religions”.

“You may acquire the Babri Masjid or even the Meenakshi Temple, provided you show the requirement. But effectively, places of faith cannot be acquired for public purpose,” contended the senior counsel.

Dhawan shall continue his submissions in this behalf on March 23 at 2 PM.

In the course of the hearing, the Chief Justice had remarked, “Mr. Vaidyanathan (senior counsel CS Vaidyanathan, for some appellants, as well as respondents in the main appeal) says that the Ismail Farooqui judgment needs to be reconsidered. If it even slightly disturbs our constitutional conscience, we shall make the reference. But first you need to satisfy us that the judgment is incorrect in principle, only then will a Constitution bench get to make a call.”

Justice Bhushan had also asked Dhawan to make his submissions, “not on findings, but on propositions of law”, “at the outset itself”, on the issue of reference to a larger bench in the light of the 1994 judgment.

Before commencing his submissions, Dhawan had stated, “A reference can be made at any stage...I have appeared in cases where Your Lordships have made a reference even at the last stage...that is not the question...the question is that this is the most important case of the Republic of India since 1947...”

The aforesaid claim regarding the stage of reference was also backed by senior counsel Mohan Parasaran when the Chief Justice sought his view.

While making the submissions on the issue of reference, he remarked, “If Your Lordships feel that the (Ismail Farooqui judgment) would prejudice either side, a reference may be made.”

However, rejecting the prayer of senior counsel Raju Ramachandran to look at other aspects besides the Ismail Farooqui judgment, in view of the significance of the matter, the Chief Justice categorically stated, “No, we are only concerned with the (Ismail Farooqui) judgment on the question of reference, and not the provision in Article 145(3) of the Constitution (as to the minimum number of judges who are to decide a substantial constitutional question).”

Interlocutory applications 

The bench on Wednesday rejected several applications for impleadment, intervention, rendering assistance and filing of documents.

 The bench also directed the registry to not entertain any such applications from third parties.

Subramanian Swamy’s intervention

Regarding BJP leader Subramanian Swmay’s intervention application, the Bench has passed the following order;

It is submitted by Mr. Subramanium Swamy, the applicant-in-person that he had preferred a writ petition being W.P.(C) no. 105/2016 and withdrawn the same to file an application for intervention. It is further submitted by him that the Court after hearing the matter, had vide order dated 23.12.2016 permitted him to convert the writ petition to an application for intervention. As we are not inclined to permit the intervention application, the writ petition filed by the applicant shall stand revived and it shall be dealt with by the appropriate Bench in accordance with law. The interlocutory applications are accordingly disposed of.

Intervention by MIT College of Engineering, Pune

An intervention was made on behalf of the aforesaid institution with a view to effect a settlement between both sides. It was also proposed to set up a complex for the study of all major religions in the world as well as for the study of humanity.

The advocate appearing for the institution advanced, “Merely because these persons became party to the present matter at the first instant does not make them owners of the land in question...just settlement of the title shall not solve the problem...people who had nothing to do with the land have died, been hurt or lost property...”

“That is not the relevant issue at present...you can make attempts at bringing about a settlement even without intervention...we cannot nominate or suggest that the parties go for settlement as per your proposal...Article 142 has limitations too,” noted the Chief Justice.

Senior counsel CU Singh also made submissions on an intervention application, relying on Section 8A of the CPC, which provides that the court has the power to permit a person or body of person to present opinion or to take part in the proceedings if it is deemed necessary in public interest.

“The (Allahabad) High Court judgment has been rendered on findings of fact which are based on faith...we are making detailed submissions based on a secular usage, given the repercussions this matter could have...Your Lordships may hear the main parties first and then, depending on your discretion, afford us an opportunity of being heard,” stated Singh.