Likening the destruction of Babri Masjid to the demolition of the Bamiyan Buddha statues in Afghanistan, an appellant in the Ayodhya dispute case, M I Siddiqui, accused the Uttar Pradesh government of going back on its promise to remain neutral in the matter.
Appearing for Siddiqui, senior advocate Rajeev Dhavan told a bench of Chief Justice of India Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer that the mosque in Ayodhya was destroyed by “Hindu Taliban” —like the Buddha statues in Bamiyan in Afghanistan was brought down by the Taliban.
He submitted that in the 70 years of its existence, the Constitution had become a religion and preserved democracy in the country. Dhavan contended that “no faith has the right to destroy a mosque…and then to argue that now that it has been destroyed, you have no right to pray…. No equity lies on the part of the faith which destroyed it to now argue that you don’t have the right to pray”.
“The fact that the mosque is destroyed does not conclude the question of the right to prayer,” he said.
He submitted, “The (UP) government authorities were supposed to play a neutral role in the present proceedings. This is evident from their own pleadings, which have also been recorded in the impugned judgment…. The State (however) has taken a non-neutral stance in the present proceedings.”
Dhavan wants the Supreme Court to refer the 1994 judgment of its five-judge Constitution bench in M Ismail Faruqui vs Union of India case to a larger bench. His objection is to the judgment concluding that “a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open”. He contends that this decision had influenced the September 30, 2010 judgment of the Lucknow bench of Allahabad High Court to order a three-way partition of the disputed 2.77 acres.
The Faruqui verdict came on a plea challenging the constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993, under which 67.703 acres were acquired in the Ramjanambhoomi-Babri Masjid complex.
A five-judge Constitution bench of Supreme Court, headed by then CJI M N Venkatachaliah, had in that case held: “under the Mohammedan Law applicable in India, title to a mosque can be lost by adverse possession…. If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and namaz by Muslims can be offered anywhere — even in open.
“Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India”.
Dhavan also objected to Additional Solicitor General Tushar Mehta appearing for the state and said his “intervention” was “uncalled for”. “ASG is the officer of the Union of India, which is the statutory receiver” in the case, he said. “This is simply impermissible — this is breach of faith of the court.”
Opposing demands to refer the judgment in the Faruqui case to a Constitution bench, Mehta, appearing for the State, had submitted that the appellants had never raised the demand all these years, and the attempt now is only to “delay” and “avoid adjudication of a long-pending dispute”. He also said that the judgment in the Faruqui case had not influenced the High Court verdict, and that the prayer to refer it to a larger bench “lacks bona fide”.
On why it was not challenged before, Dhavan said, “After Ismail Faruqui’s judgment, no occasion arose to question the judgment because all that was done in that case was to revive the suits in entirety. It was decided that the disputed structure would be handed over to the successful party…. The appellant accepted the Ismail Faruqui judgment in terms of the decision made and had no reason to believe that this part of judgment, which was irrelevant to the ratio, would be invoked by the opposite parties.”
He reiterated that the Faruqui judgment had impacted the High Court verdict, saying the other side had raised the findings while arguing their case.
The arguments remained inconclusive and will resume on July 20.