Ayodhya [Day-6] To Offer Namaz Is An Essential Practice, But To Offer It At Mosque May Not Be, Argues K Parasaran

“Under the Muslim Law, a mosque is a place where prayers are offered publicly as a matter of right. It neither requires any structure nor any particular mode of the structure is provided. Even on open place prayers may be offered and it would be a mosque”, Senior Counsel Rajiv Dhawan interjected, “that is the most criticized judgment on religion...let us not go down that road”.As the hearing in the string of appeals challenging the 2010 verdict of the Allahabad High Court in the Ram Janmabhoomi-Babri Masjid dispute resumed on Thursday, Senior Counsel K. Parasaran responded to the appellants’ contentions on the concepts of ‘essentiality’ and ‘integrality’ of a religious practice as cited in Ismail Farooqui (1994), implying that there is no distinction between the two.Advancing submissions before the Supreme Court bench of Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice Abdul Nazeer on whether the 1994 judgment required reconsideration by a five judge bench, he stated, “The seven judge bench (in The Commissioner v. Sri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt; 1954) has considered the ‘essentiality’ of a practice to a religion, while several subsequent judgments have favoured the idea of ‘essential’ and ‘integral’ parts of a religion...but the question is whether it is only a religious practice or something more”.In the light of Ismail Farooqui, he elaborated, “To offer the Namaz is an essential practice, but to offer it at the Mosque may not necessarily an essential practice, though it is a practice...this is the distinction...prayer is essential, but the structure may not be essential...”, drawing the attention of the bench to the right under Article 25 being ‘subject to public order’.When he sought to quote that “Under the Muslim Law, a mosque is a place where prayers are offered publicly as a matter of right. It neither requires any structure nor any particular mode of the structure is provided. Even on open place prayers may be offered and it would be a mosque”, Senior Counsel Rajiv Dhawan interjected, “that is the most criticized judgment on religion...let us not go down that road”.Mr. Parasaran, on Thursday, indicated the order dated January 27, 1993 of the Supreme Court five judge bench in connection with the Presidential Reference for opinion on the existence of a Hindu religious structure on the disputed site in Ayodhya- Although the bench, in Ismail Farooqui, eventually declined to answer the reference, public notice to all interested parties was issued, besides individual notices to the Union of India, the state of Uttar Pradesh, the Advocates General of all states as well as the parties to the suits ultimately adjudicated by the Allahabad High Court in the impugned judgment.“Even in the Presidential Reference, where there is no right of audience, notice was issued to all parties”, he advanced.In the course of the hearing, Mr. Parasaran cited several authorities to buttress his submission that the Doctrine of Representation precludes from resuscitation interests which were represented in a judgment tendered, in the light of the appellants seeking a reconsideration of the 1994 Ismail Farooqui judgment by a larger bench.He placed reliance on the judgment in Ahmed Adam Sait & Others vs Inayathullah Mekhri (1963), where, in context of a suit filed under section 92 of the CPC by plaintiffs claiming to represent the Sunni Muslim population of Bangalore and praying that a scheme should be settled for the proper administration of the Jumma Masjid, Bangalore, it had been observed that a reading of section 11 and its Explanation VI, section 92 and Order 1 Rules 6 and 8 of the CPC confirms that to ascertain if a decree in a representative suit creates the bar of res judicata against persons claiming an interest not represented, it is essential to inquire which interests were represented by the plaintiffs or the defendants in the suit.“Section 11 and Explanation VI appended thereto, section 92 and Order 1 Rules 6 and 8 of the CPC are on the Doctrine of Representation...Your Lordships may examine whose interests are represented in (Ismail Farooqui)...”, submitted Mr. Parasaran.Next, he cited Surrayya Begum v. Mohd. Usman (1991) wherein it was noted, “The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown...This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; In other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he can not be considered to be a representative...”Continuing in the same thread, Singhai Lal Chand Jain (Dead) v. Rashtriya Swayam Sevak Sangh (1996) was...

Ayodhya [Day-6] To Offer Namaz Is An Essential Practice, But To Offer It At Mosque May Not Be, Argues K Parasaran

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