Qutub Minar-'How Can You Claim A Legal Right For Restoration For Some Thing Happened 800 Years Ago?' Asks Court, Reserves Judgement

The Saket District Court in Delhi has reserved its order on the appeals preferred against a Civil Judge order dismissing the suit which alleged that the Quwwat-Ul-Islam Masjid situated within Qutub Minar Complex was built in place of a temple complex and sought restoration of the same.Additional District Judge Nikhil Chopra has kept the matter for pronouncement on june 9."Arguments concluded. Parties would be at liberty to file brief synopsis if any within a week, with advance copy to the opposite party. List on June 9 for orders," the Judge recorded in the order.In the original suit, the plaintiffs alleged that around 27 Hindu and Jain temples were desecrated and damaged raising the construction of the said Mosque in place of those temples. The civil judge had rejected the suit after noting that the suit was barred by the provisions of the Places of Worship Act 1991 and rejected the plaint under Order 7 Rule 11(a) of Civil Procedure Code for non-disclosure of cause of action. The Civil judge had also observed that the wrongs of the past cannot be a basis for disturbing the present peace and that if it's allowed, fabric of constitution, secular character will be damaged. Is right to worship a fundamental or legal right? In appeal, seeking restoration of deities and permission to resume worship, Hari Shankar Jain, one of the appellants, submitted, "It is the admitted position is for the last 800 years, it wasn't used by the Muslims. When there is a temple which was in existence much before the mosque, why it can't be restored?" He referred to Section 16 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act) which provides for protection of place of worship from misuse, pollution or desecration. Jain also referred to the Supreme Court's decision in the Ayodhya Temple case to contend that once a deity, is always a deity and a temple, merely on being demolished, shall not lose its character, sanctity or dignity. "I am a worshipper. There are images still existing, still visible…If the deity survives, right to worship survives." However, the Court inquired as to what is the legal right which entitles the appellants. It stated that the existence of idol is not in dispute. However, the question is regarding right to worship. "The question is, whether right to worship is an established right, whether it's a constitutional or any other right? The only question is whether there is any denial of any legal right to the appellant? And what all remedies if any are available with respect to this right? Even if assuming there was an admission that it was demolished, structure was raised, assuming it wasn't used by Muslims as mosque, question which is more important is can you now claim it to be restored on what basis? Now you want this monument to be turned into a temple calling it restoration, my question is how would you claim that the plaintiffs have a legal right assuming it existed about 800 years back? On a lighter note, Deity is survived for last 800 years without worship. Let him survive like that." Jain contended that the impugned order denies the Constitutional and fundamental right of Hindu community under Article 25 of the Constitution. The Court then asked if there is any precedent in law which identifies "right to worship" as fundamental right? Jain responded, "In Ayodhya judgment, it's held that a deity survives, it's never lost. If that, then my right to worship survives." He asked the Court to consider whether there can be mosque after demolition of a temple and whether it will be considered as a mosque. Does Section 16 of AMASR Act bar restoration of temples? The Court suggested that the impugned order of the Civil Judge seems to have made findings on the point that granting of relief to the plaintiffs may upset or be in violation of the statute (AMASR Act). It added that Section 16 of the AMASR Act seems to be on same principle as Section 3 of Places of Worship Act, which bars conversion of places of worship. Section 16(1) of AMASR Act states that a protected monument maintained by the Central Government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character. Section 16(2) provides that where the Central Government has acquired a protected monument which is used for religious worship or observances by any community, the Collector shall make due provision for the protection of such monument or part thereof, from pollution or desecration. However, Jain contended that Section 16 is completely in deviation of what is said in Section 3 of Places of Worship Act. "Every monument governed by Monument Act is exempted from application of Places of Worship Act. Nobody can dispute this. My test is on exclusion. When Act exempts the application of Places of Worship Act, how the suit is dismissed on...

Qutub Minar-'How Can You Claim A Legal Right For Restoration For Some Thing Happened 800 Years Ago?' Asks Court, Reserves Judgement

Nupur Thapliyal

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