Court to check whether mosque is an essential part of Islam
Ahead of hearing the crucial Ram Janmabhoomi-Babri Masjid title suit, the Supreme Court on Wednesday decided to examine the question whether a mosque constitutes an essential and integral part of Muslim religion. The court also dismissed all intervention applications filed in the matter and maintained only original parties to the suit will be allowed to file applications henceforth. The dismissed applicants included BJP MP Subramanian Swamy who sought enforcement of his right to worship at lord Ram’s birthplace.
The question whether mosque is essential to Muslim faith goes to the root of the controversy as the September 30, 2010 Allahabad High Court verdict that partitioned the Ayodhya property into three parts had relied on a 1994 decision by the apex court laying down that praying at a mosque is only a religious practice and not essential practice of Muslims.
Based on this reading, it was argued that Muslims’ right to worship in a mosque fails to enjoy Constitutional protection of Article 25.
Senior advocate Rajeev Dhavan who appeared for the lead petitioner Mohammad Siddiq on Wednesday said that the Ayodhya title suit case must go to a Constitution Bench as it involved reconsideration of the 1994 decision by a five-judge Bench in Dr M Ismail Faruqui vs Union of India. The Bench of Chief Justice Dipak Misra, Justices Ashok Bhushan and S Abdul Nazeer replied, “We are not thinking for a moment to refer the entire case before us to a larger Bench. First, you must persuade us that the 1994 judgment is incorrect. Only then can we consider referring to a larger Bench.”
Senior advocates K Parasaran and CS Vaidyanathan who represented certain Hindu parties to the suit agreed that the controversy must be put to rest. They argued that Faruqui decision is by a Constitution Bench that binds the present hearing. It was open to the Bench to revisit the 1994 decision as and when an occasion arises during the hearing, they added.
The Bench decided in favour of taking up the issue as a preliminary question following which Dhavan began argument. He could not complete and was allowed to develop his arguments on March 23. The clutter of 18 applications dismissed by court included Shia Waqf, eminent citizens of society including filmmaker Shyam Benegal and social activist Teesta Setalvad, former Parliamentarian Arif Mohammad Khan and BJP MP Subramanian Swamy.
Ironically, it was at Swamy’s instance that the seven-year old appeal was taken up for hearing. Prior to filing an application in the title suit, Swamy had filed a petition to enforce his fundamental right to worship at Ayodhya prior to solving the property rights of parties to the title suit. His petition was converted into an application that got dismissed on Wednesday. The Bench, however, revived his earlier petition, and listed it for hearing before another Bench.
The Bench further made it clear to parties that it will not broker a settlement between the two contesting parties. “We cannot tell or suggest them for settlement. But if lawyers on both sides present to us a Memorandum of Settlement entered between the two sides, we will accept it,” CJI Misra said, adding that experience so far has shown that no party is willing to listen to another.
Dhavan, who opened his argument said that following the horrendous act of demolition of Babri mosque, the court did not consider the right to worship of Muslims. Instead, the right to pray of Hindus was preserved at the site of demolition. If there was any decency in our secular system, the least to be done was to rebuild the mosque, he submitted. His arguments will resume on the next date.