Ramjanmabhoomi-Babri Masjid [Day-3]: 'If Polygamy Matter Can Be Referred To Constitution Bench, Why Can't This Serious Issues Be Referred?' Asks Rajeev Dhavan

As the hearing in the Ram Janmabhoomi-Babri Masjid matter resumed before the Supreme Court bench of Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice Abdul Nazeer, Senior Counsel Rajiv Dhawan insisted on the reference of the 1994 Ismail Farooqui judgment to a larger bench-“I can show Your Lordships over 20 judgments of this court wherein it has been held that when a substantial constitutional issue arises, a reference must be made...the shadow of this judgment had fallen on the Lucknow bench (of the Allahabad High Court, in its 2010 judgment the appeals wherefrom are presently being heard)...the judgment was an addendum to the Ismail Farooqui judgment...one of the judges, Justice D. V. Sharma (of the Lucknow bench) had quoted from the 1994 judgment...paragraph 82 of the Ismail Farooqui judgment (wherein it has been observed that the mosque is not an essential part of the faith of Islam) has infected the judgment” “I do not understand why this matter (the Ayodhya controversy) is being regarded as trivial by Your Lordships...if Your Lordships deem polygamy as an issue more serious than this matter, then Your Lordships may tell us”, he continued. Senior Counsel Raju Ramachandran supported his prayer in this behalf. On March 26, another three judge bench headed by Chief Justice Misra had referred to a larger bench the petitions challenging the constitutionality of the practices of nikah-halala and polygamy. “Why should I waste the time of this court in repeating the same arguments before a larger bench?”, inquired Dr. Dhawan. “That is not a concern...you can take all the time that is needed”, assured Justice Bhushan. Objecting to Dr. Dhawan’s contention, Senior Counsel K. Parasaran referred to the First, Second and Third Judges Cases, advancing, “Your Lordships may decide the issue of reference to a larger bench along with the merits of the case...Your Lordships have the authority to decide from day to day...” “We thought it appropriate to appreciate the (Ismail Farooqui) judgment from your point of view”, remarked the Chief Justice. Thereupon, Dr. Dhawan resumed his submissions in the light of the 1994 Supreme Court judgment in Ismail Farooqui.He Indicated the portions of the judgment dealing with the Statement of Objects and Reasons of the Acquisition of Certain Area at Ayodhya Act of 1993, which elaborates that in view of the long standing Ram Janmabhoomi-Babri Masjid dispute which peaked with the destruction of the Mosque in December, 1992 followed by communal violence resulting in deaths, injuries and loss of property, it was deemed appropriate in the interest of public order and harmony to acquire the disputed structure to develop the same as a complex comprising of a Ram temple, a mosque, a library and a museum. “Nowhere in the Act or even in the operative part of the judgment has it been stated that Muslims, in the practice of their faith, may pray anywhere or that the Mosque is not an essential part of the religion”, remarked Dr. Dhawan. “The judgment need only have shown why section 4(3) of the Act of 1993 (providing for the abatement of any suit, appeal or proceeding in respect of the area comprising of the disputed structure of Ram Janmabhoomi-Babri Masjid which vests in the Central government by virtue of the Act) was struck down”, he added. Continuing, Dr. Dhawan proceeded to discuss the provisions of the Act of 1993- “section 2(a) states that the ‘area’ (acquired by the Central government under the Act) shall include all buildings, structures and properties therein and not just the narrow area (on which the mosque stood)...section 3 vests in the Central government all rights, title and interest in relation to the said ‘area’...section 4 deals with the ‘general effect of vesting’; that all power, authority, privilege and property in the said ‘area’ as may have been owned by the state of UP or any other person before the commencement of the Act shall vest in the Centre, free of any encumbrance...section 5 obligates any such person or the UP government to secure possession to the Centre of said ‘area’...section 6 empowers the Central government to vest the ‘area’ in any other authority or trust...”In context of section 7(2) stipulating that the Central Government or the authorised person shall ensure that the position existing before the commencement of Act in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the ‘Ram Janma Bhumi - Babri Masjid’ is maintained, he advanced, “No extra meaning was required to be supplied to explain the maintenance of status quo”. “When I first read the (Ismail Farooqui) judgement, it seemed to be influenced by the atmosphere prevailing then...this judgment is not a good interpretation of section 7(2) of the Act...why, in the context of status quo as envisaged by a neutral section 7(2), was ‘comparative use’ mentioned in the light of the controversy on the use of the disputed...

Ramjanmabhoomi-Babri Masjid [Day-3]: 'If Polygamy Matter Can Be Referred To Constitution Bench, Why Can't This Serious Issues Be Referred?' Asks Rajeev Dhavan

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