Today, Mr. Rajeev Dhavan appearing for the Wakf Board started the 6th day of arguments in the Ayodhya Title case. He began by by seeking the bench's permission to not argue on merits as the Ismail Faruqui case would be referred to a Constitution Bench. The court declined this request by responding that the decision to refer this matter to the constitution bench will be made only upon hearing the arguments.
In the last hearing on 23rd March, the Chief Justice had suggested two questions for referral – can the court decide what constitutes an essential practice of religion? and are religious structures an essential part of a religion?
Mr. Dhavan started by arguing that the Ismail Faruqui judgment upheld the acquisition of the disputed land in Ayodhya. He said that though the Acquisition of Certain Areas at Ayodhya Act was promulgated to safeguard and promote communal harmony, through its provisions, it has favoured one community. Next, he referred to the judgment where the Solicitor General had recorded that if the court found that a temple existed, the government would ensure that the temple would be rebuilt, keeping in mind the sentiments of the Hindu community. Next, he stressed that the confusion on the definition of ‘area’ persists even after the judgment - does it include only actual disputed area or does it include the adjoining area of 67 acres?
He also criticised the judgment for going into the comparative significance of religious structures. The court was wrong in observing that “..mosque is not an essential part of the religion in Islam and namaz by Muslims can be offered anywhere, even in open”. This observation went against the principle of Secularism, which envisages equality between religions. And unfortunately this judgement gave a wrong concept of essential practices in Islam.
He concluded that the judgment needs to be reviewed by a higher bench in light of the casual observations made by the Court, and for upholding the Acquisition of Certain Areas at Ayodhya Act, 1993. The matter will be next heard on 27th April 2018.