Ayodhya [Day-5] The Matter Should Be Considered by A Five/Seven Judge Constitution Bench :Rajeev Dhavan [Read the Written Submissions]

Rajeev Dhavan, on Tuesday, warned of contempt proceedings on the ground of certain remarks pertaining to the Ayodhya matter which is sub judice, “while this case is being argued, people should restrain themselves like we have...we have considered contempt...I would caution all not to muddy the waters”.As the hearing in the string of appeals against the 2010 judgment of the Allahabad High Court resumed before the Supreme Court bench of Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice Abdul Nazeer, Senior Counsel Rajiv Dhavan advanced submissions on concepts of ‘essentiality’ and ‘integrality’ of a religious practice to a religion, in the light of the 1994 Ismail Farooqui judgment.In so far as it has been observed therein that “While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice, unless the place has a particular significance for that religion so as to form an essential or integral part thereof”, he contended, “this is complete denudation of the Essential Practices Doctrine...by virtue of Article 25, one cannot say that only the famous mosques and not the others shall be protected...”Dr. Dhavan relied on Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of UP (1997), wherein the apex court had observed that in determining whether the particular matters of religion or practices or belief are an integral part of the religion, It must be examined if the practices or matters are considered integral by the community itself and not be governed solely by the concept of essentiality.“The concept of ‘integrality’ watered down to ‘comparative significance’ and ‘particular significance’, and the whole constitution is rewritten...whether ‘integrality’ trumps ‘essentiality’, Your Lordships have to decide...the locus classicus of the 7 judge bench judgment in Swamiar [The Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954)], is on ‘essentiality’...”, he submitted.“...what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself...Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters...”, it was noted in the 1954 judgment.“The broad principle of ‘essentiality’ in Shirur Mutt is cut down by ‘integrality’...”, submitted the Senior Counsel.He also indicated the minority judgment of Chief Justice Bhuvneshwar P. Sinha in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962), upholding the Bombay Prevention of Excommunication Act of 1949 qua the right claimed by the head of the Dawoodi Bohra community under Articles 25 and 26 to excommunicate any of its members under prescribed limits.The majority judgment in Saifuddin Saheb noted that the protection of articles 25 and 26 is not limited to matters of doctrine or belief but extends also to acts done in pursuance of religion and therefore contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. Further, it prescribed that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.In the light of the above observation, Chief Justice Misra opined, “I feel Articles 25 and 26 protect both the essential as well as the integral parts of a religion...they are synonymous...”“In America, only the test of bonafides is applied...whether a practice is a bonafide part of a faith”, submitted Dr. Dhavan on Tuesday.In as much as the Ismail Farooqui judgment observes, “Ayodhya is said to be of particular significance to the Hindus as a place of pilgrimage because of the ancient belief that Lord Rama was born there, the mosque was of significance for the Muslim community as an ancient mosque built by Mir Baqi in 1528 A.D. As a mosque, it was a religious place of worship by the Muslims. This indicates the comparative significance of the disputed site to the two communities...”, He advanced, “the reference to ‘comparative significance’ is objectionable to constitutional principles...faiths cannot be compared and set against each other...”“The concepts of ‘comparative significance’ and ‘particular significance’ invoke a comparison of religions which is injurious to the principle of secularism”, he added.In context of section 7(2) of the Acquisition of Certain Area at Ayodhya Act of 1993, stipulating that the position, as it existed before the commencement of Act, is to be maintained in respect of the area...

Ayodhya [Day-5] The Matter Should Be Considered by A Five/Seven Judge Constitution Bench :Rajeev Dhavan [Read the Written Submissions]

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