Ayodhya [Day-2] A Mosque May Be Destroyed But The Religious Sentiment Associated With The Place Can't Be Robbed: Dhavan Challenges Farooqui Judgment

As the hearing in the Ram Janmabhoomi-Babri Masjid dispute resumed before the Supreme Court bench of Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice Abdul Nazeer on Friday, senior counsel Rajiv Dhawan continued his submissions on the need to revisit the law laid down in Ismail Farooqui (1994) by a five-judge bench.He contended that the judgment in so far as it observes that “...this right (under Article 25) does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per se may infringe the religious freedom guaranteed under Articles 25 and 26 of the Constitution...”, is wrong and has the effect of reducing the scope of Article 25. “Every Jain temple or Hindu temple or church or mosque of every religious denomination is entitled to be protected...and this particular mosque (Babri Masjid) was built in 1528 by a Mughal emperor and it was rebuilt by the British in 1935...it is not possible that this mosque cannot be protected,” he submitted.In so far as the judgment mentions that the ‘comparative significance’ of the disputed site in Ayodhya is equal to both the Hindu and the Muslim community in view of the site being the birthplace of Lord Ram and also the location of the ancient mosque, Dhawan inquired rhetorically, “Is the way to resolve an inter-community dispute to check the ‘comparative significance’? This would be a disentitlement of the Constitution.”In this context, the senior counsel quoted former Chief Justice BN Kirpal’s observation on secularism in the 2002 judgment of TM Pai Foundation: “The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub-castes; eighteen major languages and 1,600 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India. Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.”Further, in respect of the observation in the judgment that offering of prayers at every location where they could possibly be offered is not an essential or integral part of the religious practice unless that place assumes a particular significance for such a religion, he contended, “This empties out the huge protection conferred to every religious place under Article 25.”In respect of the aforesaid observation, he had also remarked at a later stage of the hearing, “Is it practical to ask one to practice their religion elsewhere?”Reading out the paragraph of the judgment wherein the contention that once any place has been dedicated to a mosque it remains the property of ‘Allah’ even after the mosque is demolished was refuted, Dhawan advanced, “A mosque may be destroyed but the religious sentiment associated with the place cannot be robbed...it would be different matter only in the case of State acquisition of the site or if the Muslim community confirms they do not enjoy the place for the purpose of worship anymore.”“We have perused the Quran and the Hadith. A mosque is to be a mosque forever. The observation regarding ‘comparative significance’ may apply only in cases of acquisition when it may be possible to say that the site of any specific mosque may not be acquired...,” he continued. Justice Bhushan observed that the Ismail Farooqui judgment does not make such a distinction.“The mosque in Mecca-Medina was built by the Prophet himself carrying each stone...such is the significance of every mosque or temple...I argue for every Muslim and every Hindu...the whole case rests on whether Your Lordships proceed on the position before (the demolition of the Babri Masjid) in 1992 or after...,” submitted Dhawan.In so far as the Ismail Farooqui judgment affirms that a mosque shall also be subject to the Limitation Act and adverse possession, he remarked, “Limitation has nothing to do with it...”In respect of the observation in the judgment 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...”, Dhawan reiterated his statement at the previous hearing...

Ayodhya [Day-2] A Mosque May Be Destroyed But The Religious Sentiment Associated With The Place Can't Be Robbed: Dhavan Challenges Farooqui Judgment

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