Dr Rajeev Dhavan resumed arguments before the Supreme Court in the case. On the previous day of arguments, the Court had asked Dr Dhavan to convince it that the Ismail Farooqui judgment is wrong in principle.
Today, Mr Dhavan began his arguments by stating that one cannot differentiate between structures of different religions. He argued that in Paragraph 77, Ismail Farooqui held that Article 25 does not refer to property anywhere. In paragraph 78, it held that Article 26 does not interfere with the right of the State to acquire property. Dr Dhavan argued that the Court was wrong in saying so. He argued that Article 25 also protects places of worship. A structure does not lose its significance as a mosque even after it is destroyed.
At this point, Justice Bhushan pointed out that Ismail Farooqui says that only the Centre has the power to acquire religious structures like a mosque. To this, Dr Dhavan responded that a mosque is a very significant part of Islam, just as a Gurudwara, or a Hindu or Jain temple. There cannot be a comparison of the significance of such structures. He contended that Muslims had never asked for a higher status to Mosques until now. With respect to the point that prayers can be given in the open, and a mosque is not needed for it and thus is not an essential practice of Islam, he said that so is the case with a gurudwara- one can go to any gurudwara, not just one. But this does not take away the importance of a place of worship. He argued that Allah never asked his followers to not build mosques. He returned to the Ismail Farooqui judgement where, in Paragraph 82, the logic of comparative significance is used again. He points out that this line of reasoning permeates and impregnates the entire judgement. He argued that the larger national purpose must be to protect these places of worship. Kedarnath (shrine) is also a property, not an idol. He mentioned a White Paper by the Bharatiya Janata Party (BJP) which needs to be looked at.
Mr Dhavan returned to the arguments on the incorrectness of the Ismail Farooqui judgement. He read out paragraphs 49 to 52, which refer to the Rath Yatras carried out in 1993 that ultimately led to the demolition of Babri Masjid. He said these acts cannot be called an 'accident' and the Hindus cannot shift blame. He points to Paragraph 53 which reads:
3. However, at a later stage when the exact area acquired which is needed, for achieving the professed purpose of acquisition, can be determined, it would not merely be permissible but also desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner. The challenge to acquisition of any part of the adjacent area on the ground that it is unnecessary for achieving the objective of settling the dispute relating to the disputed area cannot be examined at this stage but, in case the superfluous area is not returned to its owner even after the exact area needed for the purpose is finally determined, it would be open to the owner of any such property to then challenge the superfluous acquisition being unrelated to the purpose of acquisition. Rejection of the challenge on this ground to acquisition at this stage, by the undisputed owners of any such property situate in the vicinity of the disputed area, is with the reservation of this liberty to them. There is no contest to their claim of quashing the acquisition of the adjacent properties by anyone except the Central Government which seeks to justify the acquisition on the basis of necessity. On the construction of the statute made by us, this appears to be the logical, appropriate and just view to take in respect of such adjacent properties in which none other than the undisputed owner claims title and interest.
Dr Dhavan called the above paragraph a 'Cross on the Chest' - a deliberate attempt to burn down the mosque was ignored. He clarified that the interest of Muslims is not limited to the place where the Babri Masjid stood. He cited Justice BN Kirpal's judgment in TMA Pai Foundation, a case important to understand secularism. He reads out paragraphs 156 and 159:
156. Our country is often depicted as a person in the form of "Bharat Mata - Mother India". The people of India are regarded as her children with their welfare being in her heart. Like and loving mother, the welfare of the family is of paramount importance for her.
159. The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub- castes; eighteen major languages and 1,600 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India. Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.
Mr Dhavan extended the essence of Paragraph 159 to say that he wished to visualise Article 25 on the map of India. He then pointed out that the 7 judge bench decision in The Commissioner vs Sri Lakshmindra Thirtha Swamiar was ignored in Ismail Farooqui, even though it was binding. He said that The Commissioner case did use comparative significance between different places of worship.
Mr Dhavan argued that Article 26(b) allows complete autonomy. Courts cannot ask followers of a religion to 'pray anywhere'.
26. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
... (b) to manage its own affairs in matters of religion;
He argued that the tenets of Islam, or any faith, cannot be decided by the Court, unless the tenet is fraudulent. It cannot lecture people on their own religion. He pointed out that many mosques of the world are vacant, but they still stand. It was wrong to say that a mosque is not forever unless there is an acquisition. At this point, Justice Bhushan interjected to say that the Ismail Farooqui judgement does say that there is comparative significance. In response, Dr Dhavan read out several portions of the judgement and said that there is a Fundamental Right to exhibit one's beliefs and ideas in acts as are sanctioned by Religion. He points out that there is no upside to determine whether a certain practice is an essential part of the religion or not. He invoked the idea of secularism in the context of equality of religions to say that a mosque must be treated at par with any temple in India.
At this point, Chief Justice Misra said that hypothetically if they were to refer the matter to a Constitution Bench, the following would be the specific questions that would have to be decided:
With this, day 5 of arguments concluded in this case. The next date of hearing is 6th April 2018.
(This post relies on the contributions of Mr Ayush Puri.)