The Ayodhya issue returned to centrestage Friday after the Uttar Pradesh government opposed demands to refer to a Constitution Bench a 1994 ruling of the Supreme Court which stated 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”.
Appearing for the UP government, Additional Solicitor General General Tushar Mehta told a bench of Chief Justice of India Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer that the demand to revisit the M Ismail Faruqui vs Union of India to a Constitution Bench was never made all these years and the present attempt was only to “delay” and “avoid adjudication of a long-pending dispute”.
The UP government also rejected the contention that courts had been influenced by the Faruqui judgment, pointing out that the Allahabad High Court ruling that ordered three-way division of the disputed Babri Masjid-Ram Janmabhoomi site in Ayodhya had made it clear that its judgment was “not based upon Dr M Ismail Faruqui judgment”.
The Faruqui vs Union of India verdict had come on a plea challenging the Constitutional validity of The Acquisition Of Certain Area At Ayodhya Act, 1993 under which 67.7 acres in the disputed complex were acquired by the Centre a month after the razing of the disputed structure.
In October 1994, a five-judge bench, headed by the then Chief Justice of India M N Venkatachaliah, had held that “under the Mahomedan 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 (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India”.
On Friday, ASG Mehta, appearing for the UP government, told the bench that the Faruqui case dated back to 1994 and no party to the dispute had “disputed” its “correctness or otherwise… by taking out any proceedings which may be permissible in law”.
The Allahabad High Court, he said, delivered its verdict in the title dispute case on September 30, 2010 and appeals challenging it were filed in the Supreme Court the same year. He said appeals had been pending for “almost eight long years and the parties which are now belatedly raising an unsustainable plea, chose not to raise any such plea at all during all these years”.
The plea for referring the Faruqui case, he said, was not made even when the Supreme Court passed orders for translation of pleadings, evidence etc.
“When all translations are made and evidence is compiled in several volumes and all appeals become ripe for hearing… suddenly belated efforts started being made visibly and demonstratively to delay the judicial adjudication. After several such similar attempts, the present attempt is a belated attempt to avoid judicial adjudication of a long-pending dispute,” Mehta told the bench, adding that the reference plea “lacks bonafide”.
Under the Code of Civil Procedure, litigants cannot be allowed to take belated pleas to avoid adjudication. “Any attempt which from facts manifests a lack of bonafides deserves to be rejected at the threshold,” he said.
Senior advocate Rajeev Dhavan, appearing for one of the appellants, had raised the prayer for referring the matter to a larger bench. On Friday, he told the bench that to decide if any practice is an essential one, the courts need to look at the tenets and examine them in detail. This, he said, had not been done before arriving at the finding in the Faruqui case.
“Mosques are not built for fun. There are thousands and thousands of mosques all over the world and hundreds in India. If they are not essential, why do Muslims go to mosques on Fridays. Islam is also a congregational religion… If the congregational part of Islam is taken away, a large part of Islam collapses,” he said.
Senior advocate C S Vaidyanathan, appearing for the respondents, opposed the plea, saying even if need be, the exercise of examining the part disputed by Dhavan cannot be done by a three-judge bench as the Faruqui verdict was by a five-judge bench.
At one point, Justice Nazeer wondered if the Faruqui judgment had influenced the courts. “No, it has not. It (the finding of the court) was only for purpose of acquisition,” Vaidyanathan replied. Dhavan maintained that the Faruqui case “influenced the arguments, influenced the judgment and it influences this appeal”.
Hearing will resume on July 13.