Arguments Summary Day 4: March 14, 2017

The 4th day of arguments in the Ayodhya title dispute revolved around the reconsideration of the judgment in Dr. M. Ismail Faruqui Etc, Mohd. v. Union Of India, which had held that a mosque is not essential to the religion of Islam.

The Court rejected about 20 applications for impleadment, intervention, rendering assistance, and filing of documents, and directed the registry to not entertain any such applications from third parties. Some of the Applicants rejected were Dr. Subramanium Swamy, MIT College of Engineering, Pune (who proposed to set up a "complex for the study of all major religions in the world as well as for the study of humanity"), and 32 eminent persons including Shyam Benegal, Aparna Sen, Anil Dharkar and Teesta Setalvad (who proposed that the 2.77 acre disputed land be put to 'secular' use rather than religious use by adjudicating the dispute between Hindu and Muslim groups).

Dr Rajeev Dhawan, representing the appellants, argued that the Ismail Farooqui judgment raised two concerns. First, it affirmed the decision in the Masjid, Shahid Ganj v SGP Committee case, that a mosque that is adversely possessed by non-Muslims loses its sacred character. Secondly, it said that Muslims could pray anywhere.  He contended that Muslims could not be thrown out of their own mosque. Appealing to India's secular culture, he asked that the mosque be rebuilt.

He elaborated on the significance of a mosque to Islam and argued against a narrow interpretation of the 'Essential Practices Doctrine', illustrating his point with an example. The Fundamental Right under Article 25 lets a Roman Catholic pray in a particular church. Could he be forced to pray at any other church, claiming that Article 25 did not apply? Justice Ruma Pal (as a judge of the Calcutta High Court) had observed that the ‘tandava’ dance is an integral part of the religion of the followers of the Ananda Marga in Commr. of Police v. Acharya Jagdishwarananda (1990). This was subsequently affirmed by the Supreme Court in 2004. He argued that every mosque, temple or church is a place of particular significance, and hence a part of the essential practice of that religion. Thus, the Ismail Farooqui judgment was wrong in observing that the places of worship of different religions had varying degrees of importance and had to be treated differently. Such an outlook was an evaporation of the Essential Practices Doctrine, Dr. Dhawan argued.

Dr. Dhawan read out excerpts from the Ismail Farooqui judgment which said that no protection was given to a mosque in British India, thus the mosque was subjected to the provisions of the statute of limitation. The judgment goes on to say that the right of Muslims to offer prayers in a particular mosque is lost by adverse possession over that property. Dr. Dhawan rejected this by saying that the mosque was built by Babur, rebuilt by the British in 1934 and thus limitation did not apply in this case.

On the part of the Ismail Farooqui judgment which relies on Section 3(26) of the General Clauses Act and  Article 367 of the Constitution to say that temples, churches or mosques are immovable properties which could be acquired by the State, Dr. Dhawan argued that places of faith could not be acquired for public purpose. The Court had stated that it might refer this issue to a five-judge bench if it was convinced by the counsels that the Ismail Farooqui judgment was wrong in principle.  Dr. Dhawan will resume his arguments on 23.03.2018.