Above: Supreme Court (file picture)

The Ayodhya land dispute cases are being heard by the Supreme Court bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer. The bench had made it clear that it will not be allowing the mixing of politics and religion in a case that it will treat as a land dispute, no more. The issue is about Ram Janambhoomi and the Babri Masjid land.

On Friday (March 23) petitioner Ejaz Maqbool’s counsel Rajeev Dhavan, submitted that the paragraph 74 of the Ismail Farukki judgment deals with acquisition. “You can’t take away our right,” he said. He pointed out to the bench that article 25 doesn’t give the right to acquire the property.

“It is said that you can’t take away a right to further your suit,” he said, referring to paragraph 77. The right does not extend to any and every place of worship, he said. “The effect of this is the reduction in the scope of Article 25. Temples with extreme significance will be protected. Now, you have to decide which is your extremely significant place of worship, and with regards to mosque, which mosque will be protected?

“There was a case in 1985, in which it was said that they only have the right to pray. Paragraph 51 says about a mosque built by Mir Bakr in 1598. Is it really the birthplace of Lord Rama? Or that small temple situated right outside the place wherein it is written that it is the birthplace of Lord Rama? “Look at the comparative significance, if you want to take society along with you,” he said.

“Paragraph 78 says that while offering a prayer, the place per se will have no significance until the place itself is religiously significant. This entirely empties the significance of article 25.

“In para 78 it is said that offering prayer is a religious practice and the place plays significant role and is protected under Article 25. Even if the structure is demolished, the place remains the same. A mosque holds a very important position in the religion of Islam and once a mosque is established, it comes under the property of Allah and further, it cannot be demolished,” he read from the judgment.

“But in insisting that a mosque is not a mosque, does it lose its significance as a mosque?” he asked. “If you destroy a mosque, does it lose its significance as a mosque? It does not. A mosque is a mosque forever. It enjoys the status of a mosque until the property is acquired or an order is passed that no offerings are to be made.”

“Everything is protected under the constitution,” he said. “Apart from Mecca and Medina, the Prophet himself had built a mosque 30 km from Medina. You cannot demolish a gurudwara and say that because we have demolished the gurudwara it has lost it significance. You cannot demolish a temple or a mosque, making it subject to the limitations of the law.”

Dhavan referred to para 92 of the Justice Verma judgment which says that the correct position is that under the Mohammedean law applicable in India, a mosque wouldn’t have a higher position as compared to the position of a temple. He also said that reading namaaz doesn’t require a specific place for Muslims. “It is not necessary you go to the paramount mosque to offer prayers. Any mosque would suffice. The mosque is not an essential practice of the religion of Islam. Namaaz can be offered at any open place.” However, this was Dhavan’s way of pointing out that just because Muslims do not need a particular place to offer prayers, it does not mean that they do not need a mosque at all and that a mosque can be destroyed.

“How is the uniqueness of mosque lost, and to whom?” he asked. “This has a larger national purpose, a larger national and political significance and Ram Janambhoomi has been mentioned by the government in its white paper, issued in December,” he said.

Then he said about the right to worship in a particular place. He said that the claim of Muslims only to the mosque is only partially correct. They have a right to the property on which the mosque stood as well, he said, even if the mosque has now been destroyed.

He referred to a 2002 judgment in which India’s secular credentials have been referred to. He talked about how Indians of different ethnic groups and religions have been referred to as slabs of marble in a huge mosaic. If one slab goes then the entire mosaic is gone, he said.

“What constitutes the essential part of religion should be protected.” He said. “Religious practice should be protected.”

Justice Ashok Bhushan commented: “The acquisition should not be termed as anti secular, because it was for both Hindus and Muslims.

He quoted section 3 of The Places of Worship (Special Provisions) Act, 1991, which says that “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”

“This is how mosques in Delhi were protected,” he said. “It’s the parliament’s wish do not convert a place of religion.”

—India Legal Bureau