[Ayodhya Hearing] [Day 34] : Legality Of Mosque Construction Should Not Be Tested On Theology Of The Quran, Argues Muslim Parties

Day 34 of the Ayodhya hearing saw Senior advocate Shekhar Naphade resuming his submissions on behalf of Muslim parties on the question of Res Judicata.

He stated that in the 1885 suit, filed by Mahant Raghubar Das, only a part of the land was claimed but now the entire place is being claimed. The question the court must look into is whether it was acceptable that the Mahant was representing the entire Hindu community or not. Additionally, he submitted, that it must be seen whether Muslims can claim title. To establish that he urged that there was a mosque there, which is undisputed, and a small temple in the chabutra. The existence of the mosque was accepted, which did not require to be proved since it was implicit in the judgment. This, said Naphade, was also reflected in the report of the Judicial Commissioner, which stated that Hindus are trying to expand their reach. Upon going back to his argument about who the Mahant represented through his suit in 1885, Justice Bobde stated that there was no claim by Hindus or Nirmohi Akhara that he (the Mahant) represented them. "Even he does not claim that he represents the entire Hndu community...Second, he does not even claim that he represents Nirmohi Akhara", he said. Naphade's argument was that by claiming to be the Mahant of a place of worship, he becomes the legal representative of the Math, as well a representative of all Hindus. "Law is law. Mahant represents who? He represents the Math", he asserted. Further, he is a spiritual successor and it is not an ordinary succession like father and son. Mahant is for the group of hindus. So he represents them.

Moving on, Naphade argued that they had said that they have a temple and they have a right to construct. Their position doesn't change. Earlier the plaintiff had no occasion to claim the entire property. It was open for Hindus to lay claim over entire land. Therefore, concluded Naphade that Constructive res judicata is applicable. He concluded his arguments by touching upon estoppel, saying even estoppel was attracted in this case.

Thereafter, Advocate Md. Nizam Pasha commenced his arguments for another Muslim party, Misbahuddeen. His submissions were based on countering two issues-

1) Mosque could not have been constructed without destroying a temple

2) The structure did not meet the requirements of a mosque

Cautioning the bench from considering the theological aspects of the case, Pasha said "the Court should refrain from delving into the theological aspect, as it may be absurd...(for example) Nirmohi means without moh, moh means illusion. So theologically, they should not have any attachment to property. But they still claim the property. What I mean to say is that we should stick to basing it on legal aspects."

Addressing the question regarding the building of a mosque by Babur, Pasha submitted that at the time of building the mosque Babur did not answer to any higher authority. Verifying whether his actions were valid according to the Quran would be theological. He became sovereign after defeating another Muslim ruler, Ibrahim Lodhi.

However "today we have moved so far from what a sovereign was in those days...In conquests and wars, Muslims have not followed the tenets of the Quran, that one Muslim cannot kill another. We cannot depend on theology", argued Pasha. He further stated that when Babur performed those actions, he was the sovereign. It was a time when the Constitution was not in existence and the law was what the sovereign declared to be law. Testing his actions against Quranic law would be incorrect to assess the legality of his actions urged Pasha.

Justice Bobde interjected at this point and said, "we are not here to see if Babur was a sinner. We are here to see if Babur followed the law on the secular use of property. Was he subject to any law?"

Nizam Pasha responded saying that it cannot be assumed that Sharia law was the law of the land at the time of Babur, which was not followed by him, and conclude that what he did (building Babri Masjid from the spoils of war) was wrong. Whether the structure was a mosque or not should be dealt as per the law of the land in those days, he argued. The argument that the Quran was not the law recognized by the sovereign when Babur built the mosque, and that it could only be used to test his actions on a moral scale but not a legal one, Pasha seemed to use the argument that it was a sin in Islam to accept a mosque that was built where a temple used to be and differentiate it from the legality of that action. "It's futile to fix morality in the conquests, wars and spoils of war of the past centuries", he added and further submitted that once title is proved, the governance of wakf will be based on wakf law. Before the bench rose for lunch, senior advocate, on behalf of Ram Lalla Virajman, reinforced their stand that they were not interested in an outcome through mediation proceedings. The bench again stated that they could take up the matter for hearing on Saturday as well.

After lunch, Pasha concluded his arguments, which dealt with clarifications about practices under the Quran and what constituted a valid mosque. He also mentioned that the Hindu parties had wrongly interpreted idiomatic expressions, however Justice Nazeer mentioned that this was "Indianised Islam".

The Hindu side then began its reply through Senior Advocate K Parasaran arguing in his rejoinder, on behalf of the deity, Ram Lalla Virajman. His initial arguments were based on court evolved principles which haveacknowledged vast religious practices. He went on to assert that according to these principles even land can be treated as a juridical entity. He stressed that given the diverse kinds of places of worship amongst Hindus, it wasn't possible to conceptualize a temple on the basis of certain specifications, whether there was an idol or not. Despite the existence of an image or idol, the purpose in all cases is to offer worship to the divine. "In the Hindu religion, though the ultimate God is one Supreme being, he is worshipped in different forms in different modes in different temples", said the senior advocate before moving on to cite some examples and case laws. However Senior Advocate Rajeev Dhavan took objection to certain examples. "My friend is here on reply to our reply. But his examples are out of context. We could also cite examples but Your Lordships specifically stopped us...Now I will have to reply to him. These were not part of the evidence", said Dhavan while taking exception. K Parasaran, in response, pointed out that Dhavan had also submitted an article to the bench which was not part of evidence. Dhavan retorted, "Give it back My Lord. Do not use it as part of the record."

J Bobde then brought it back to the question of proving juristic personality through divinity to Parasaran. Why are you stressing on divinity to prove juristic personality when it's not needed, he asked, and added that if it is an object or if there was a succession, juristic personality is needed. A form is needed to attain a higher status, responded the veteran lawyer. We need something tangible to improve the focus of ordinary people, unlike those who have attained a higher level of devotion. The remainder of the hearing revolved around the question of divinity and juristic personality.

"Why do you insist on divinity (to Ramjanmabhumi) to establish juristic personality to the land?", continued J Bobde. "There is a need", replied Parasaran. "Without divinity, there would be no Hindu religion. God is one, though the forms may vary. Each idol has a separate form...Man cannot come as half man and half animal. Its only possible for God to manifest in such a form...Different gods have different forms of worship. What is the form of God?", he added. Parasaran went on to quote Upanishads to argue that while God is shapeless and formless, it is difficult for ordinary worshippers to perceive God in the absence of a form or idol. "Unless juristic personality isn't attributed, god cannot be protected."

As the bench was rising for the day, CJI Ranjan Gogoi refused to hear hear PN Mishra, who sought time to be heard, and said "you've come after 15 days and are asking us for something we don't have." The bench then said Hindu parties were to conclude arguments in 2 days, on Tuesday and Thursday and added that Mishra could consult with the Hindu party lawyers to decide with them about getting some time on those days to argue. Rajeev Dhavan will make his submissions for the Muslim waqf board on Friday.