NEW DELHI, APR 06,
Senior advocate Rajeev Dhavan, appearing for Muslim parties in the Ramjanmabhoomi title appeals, asked the Supreme Court to clarify in open court, before the Press, whether it considered pleas to strike down polygamy more important than Muslim rights involved in the Babri Masjid-Ramjanmabhoomi case.
For 45 minutes, Mr. Dhavan confronted a Bench led by Chief Justice Dipak Misra as to why the apex court chose to refer pleas to declare polygamy unconstitutional to a Constitution Bench, while continuing to mull over whether or not to send questions raised in the Ramjanmabhoomi title appeals to a five-judge Bench, that too, despite repeated requests from the Muslim parties.
“Tell me, are the petitions to declare polygamy unconstitutional — an issue detrimental to Muslims — much more important than the questions raised in the Ramjanmabhoomi-Babri Masjid case? If so, say that now… I am here, the Press is here… please say so,” Mr. Dhavan challenged the Bench.
If polygamy petitions can be shifted to a Constitution Bench, the Ramjanmabhoomi appeals can also go, he submitted.
The reference of polygamy pleas to the Constitution Bench was made on the very first day of hearing, on March 26, 2018. “The Ramjanmabhoomi case is the most important issue that affects India’s secularism… more than polygamy,” Mr. Dhavan said.
In the Ramjanmabhoomi appeals, the Muslim parties want a Constitution Bench to answer the question “whether mosques are essential to Islam”. Muslim parties have challenged the 24-year-old judgment of the apex court in the Ismail Faruqui versus Union of India case, which observed that a mosque has no “unique or special status” and was not an essential part of the practice of Islam and namaz. In 1994, the Supreme Court observed that “Muslims can offer prayer anywhere, even in open”.
The Muslim parties want a five-judge Bench to reconsider the Ismail Farooqui case verdict before further hearing the Ramjanmabhoomi appeals on merit.
Justice Ashok Bhushan, who is part of the Ayodhya Bench along with Justice S. Abdul Nazeer, said the order passed in the polygamy case cannot be made a ground to refer the Ramjanmabhoomi appeals to a Constitution Bench.
Chief Justice Misra and Justice Bhushan explained to Mr. Dhavan that they would not pass any piecemeal orders in the Ramjanmabhoomi appeals. They intend to hear the arguments from both sides before taking a call on whether the appeals in its entirety or the question of essentiality of mosques to Islam alone should be sent to a five-judge Bench.
The hearing witnessed repeated verbal slugfests between Mr. Dhavan and senior lawyers from the other side.
Both sides warned each other to “behave” in court. The court hearing intermittently erupted into short bursts of verbal brawls. Mr. Dhavan, at one point, even accused senior advocate K. Parasaran of “caricaturing” his arguments.
Justice Ashok Bhushan cut in to urge Mr. Dhavan to respect seniors like Mr. Parasaran. At one point, Justice Bhushan told Mr. Dhavan to “address the court… the Press may be here and they have a different job to do”.
“What is wrong about talking about the Press? They have a right to be here… I want the people of India to know. The other side has many compulsions, I am only interested in justice. I argue my case and I go home. I am a recluse,” Mr. Dhavan countered.
Mr. Parasaran said Mr. Dhavan was “intimidating the court” into referring the case to a Constitution Bench. “At every stage, he [Mr. Dhavan] cannot confront the court, saying nation is watching. Is this the way? He is intimidating Your Lordships,” he submitted.
Mr. Parasaran said the polygamy cases were about fresh matters, while the question in the Ramjanmabhoomi case involved a reexamination of a 24-year-old case law in the Ismail Farooqui case. The latter required intense deliberations before arriving at a decision whether or not to refer to a Constitution Bench.
Chief Justice Misra said the court was aware of the “high significance” and the “enormous impact” of the question of Muslim rights of worship raised in the Ramjanmabhoomi case. “That is why we have decided to hear it keenly,” he told Mr. Dhavan.
The Farooqui case dealt with the acquisition of 67.703 acres in Ayodhya after the demolition of Babri Masjid on December 6, 1992. The constitutionality of the Acquisition of Certain Area at Ayodhya Act, 1993 was under scanner.
The Muslim petitioners have raised various points of contention with regard to the 1994 judgement, including the distinction created by the Supreme Court between places of worship with “particular significance” and “ordinary places of worship”.
The Faruqui verdict says that only places of worship having particular significance should be considered as an “essential or integral part of the religion”.
Mr. Dhavan said the court cannot ask Muslims to pray in the open after deciding that mosques are not an essential part of Islam. A mosque does not cease to be a place of worship merely because it has been demolished.