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...

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

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