At 2.15 P.M. today, Court resumed its hearings in the Babri Masjid Ram Janmabhoomi title dispute. In the previous hearing, Mr. Rajeev Dhavan had argued that essential religious practices test requires the court to “examine” the essentiality of a practice. Today’s hearing largely revolved around the Ismail Farooqui judgment and the non-applicability of res judicata to the present dispute.
At the outset, Mr. S.P. Singh, representing the Shia Waqf Board, argued that there was no need to refer the matter to a constitution bench. He also asserted that the Shia Waqf Board is willing to relinquish its claim in the title dispute for the sake of peace and harmony in India.
Mr. Rajeev Dhavan, representing M Siddiq, asserted that the Constitution is the civic religion of India. He submitted that no faith can destroy a mosque. Significantly, the destruction of a mosque does not settle the question of prayer. He was also categorical in stating that the mosque was destroyed by the Hindu Taliban.
Mr. Dhavan's next argument was on the non-neutrality of the State of Uttar Pradesh (UP). He averred that the initial stance of non-neutrality of UP had been breached by the intervention of the Additional Solicitor General (ASG) on behalf of the State of UP. By way of illustration, he cited the attack by an officer of UP on the lack of bona fide of one of the parties to case as well as State of UP’s interest in the outcome of the case. He was emphatic that this approach by the State of UP amounted to a breach of faith of this court.
Mr. Dhavan then asserted that there was no question of Ismail Farooqui to be set aside as he is willing to accept the judgment in totality. On the question of delay in challenging Ismail Farooqui, he said that no such occasion arose.
Mr. Dhavan then argued on the question of limitation. In the Allahabad High Court judgment, it was held that since the disputed site is of particular significance to Hindus, the statute of limitation would not apply. He was astounded as to how the rights under Article 25 can be denied in such a callous manner.
Mr. Dhavan dismissed the pleadings in the previous hearings that since the holiest site of pilgrimage for Muslims was outside India, they must relinquish their claim to the disputed site. He termed this line of reasoning “invidious discrimination” and an “attack on the nature of Indian secularism”.
Mr. Dhavan’s final argument for the day was on the non-applicability of res judicata in this particular dispute. Citing a long list of cases, he submitted that there are three essential elements of res judicata. These include (a) it must be directly and substantially related to the previous dispute (b) there must be sameness and similarity of parties and issues (c) pure question of law cannot be under res judicata. To buttress his arguments, he took the court through a series of authorities on the three conditions.
On the question of collateral issue, Mr. Dhavan cited Mahila Bajrangi v. Badribai to assert that a collateral issue is not covered within the ambit of res judicata. Mr. Dhavan argued on the basis of the three tests that the question of acquisition of the mosque in Ismail Farooqui never arose. The essentiality of a mosque was not an issue before the court in Ismail Farooqui but was reflected in the judgment. Accordingly, the pure question of law as to what is an essential practice is yet to be proved.
At the point when Mr. Dhavan was arguing on the pure question of law involved in this dispute, Justice Misra decided to resume the hearings on July 20, 2018.