SC REFUSES TO REFER AYODHYA LAND DISPUTE AND ‘MOSQUE NOT ESSENTIAL TO ISLAM’ REMARK TO LARGER BENCH

ayodhya-land

SC REFUSES TO REFER AYODHYA LAND DISPUTE AND ‘MOSQUE NOT ESSENTIAL TO ISLAM’ REMARK TO LARGER BENCH

HIGHLIGHTS
The Supreme Court on Thursday refused to refer Ayodhya land dispute case to a larger bench
A three-judge bench of the apex court will commence hearing on Ayodhya land dispute in the week starting from October 29

NEW DELHI: The Supreme Court on Thursday removed the roadblocks for early hearing of seven-year-old appeals challenging the Allahabad high court’s decision to divide the 2.77 acres of disputed land in Ayodhya equally among three parties by rejecting the pleas of Muslim parties to refer to a five-judge bench the appeals as well as a contentious remark in a 1994 SC judgment that “mosque is not essential to Islam or offering of namaz”. It ordered commencement of hearing on the appeals from the week beginning October 29 in what can brighten the prospect for resolution of the vexed issue of ownership of the disputed Ayodhya site next year, perhaps even before Lok Sabha elections scheduled for April-May. During the arguments that started on December 5 last year, when the CJI-led bench was told that it would take at least one year for completion of arguments given the voluminous documents as well as other evidence, the bench had asked,

“Arguments on the title suits before the Allahabad HC took only 90 days and the appeals will go on for a year?” Read also: Restrained response from BJP, quiet jubilation in saffron camp On Thursday, a bench of CJI Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer by 2-1 majority said,

“We are of the considered opinion that no case is made out to refer the 1994 constitution bench judgment of this court in Ismail Faruqui for reconsideration. We make it clear that questionable observations made in Faruqui’s case were made in the context of land acquisition. Those observations were neither relevant for deciding the (title) suits (in Allahabad HC) nor relevant for deciding these appeals.” However, Justice Nazeer stuck a dissenting note to the majority verdict that Justice Bhushan wrote for himself and CJI Misra.

He mentioned a three-judge bench’s order on September 24 which had referred petitions seeking a ban on Dawoodi Bohra community’s practice of female genital mutilation to a five-judge bench and said the Ayodhya land dispute, as well as the remark in Faruqui judgment, raised an important constitutional question deserving reference to a larger bench. The Muslim parties had argued that a five-judge bench needed to hear the issue raised by the 1994 judgment about the essentiality of mosque to Islam before getting down to adjudicate the appeals against the Allahabad HC order.
The court turned down the argument and said an unnecessary controversy had been sought to be created by generalising the remark that “a mosque is not essential part of the practice of religion of Islam and namaz by Muslims can be offered anywhere, even in the open”.

Ayodhya case — SC ruling leaves Muslim groups hopeful It said the remark was made in the context of the acquisition of the site where Babri Masjid stood, and to rebut the argument that mosques enjoyed immunity from acquisition of land by the government.
Justice Bhushan said no religious structure, be it temple, mosque or church, enjoyed immunity from acquisition under the sovereign power of the government, which was exercised in 1993 to acquire the disputed land in the aftermath of demolition of the disputed structure on December 1992. As CJI Misra retires on October 2, Justice Ranjan Gogoi, who will take oath as CJI on October 3, will decide composition of the three-judge bench that will hear the appeals. Given the tradition, Justices Bhushan and Nazeer are likely to remain on the new bench. Justice Nazeer, who obviously wrote his judgement after September 24 and after going through Justice Bhushan’s verdict, said before adjudicating the more than century-old land dispute, a five-judge bench must decide whether what was essential to a religion could be decided without a detailed examination as was done in the Faruqui case.

The Muslim parties, initially represented by senior advocates Kapil Sibal and Dushyant Dave and later by Rajeev Dhavan, had vehemently pleaded for reference of the Ayodhya dispute to a five-judge bench and cited a CJI-led bench’s decision to refer petitions challenging polygamy to a five-judge bench without petitioners making much effort. On December 5 last year, when the hearing began before the three-judge bench led by CJI Misra, the senior counsel appearing for minority community members had used politics, religion and even alleged “agenda” and “bias” for the “hurry” being shown in deciding the 70-year-old litigation while making a fervent attempt to stall hearing by seeking reference to a five or seven-judge bench.

“This matter has been pending in the SC for the last seven years. This is the most important litigation in the history of the nation. It will impact the future of India. A decision in this case will have ramifications that will go far beyond the four walls of this court. So what is the hurry? Let us get enough time to prepare arguments. Let it go before a five- or seven-judge bench. Put it for day to day hearing from July 15, 2019.
We will not seek any adjournment. If the SC could constitute a seven-judge bench to decide Justice C S Karnan’s case, this case being far more important must also go to a seven-judge bench,” Sibal had argued on December 5. Later, Dhavan had focussed on the remark in the Ismail Faruqui judgment and sought reference of the contentious comment for reconsideration by a five-judge bench. The SC on Thursday made it clear that the Ayodhya land dispute was no more important than any other civil case and would be decided on the basis of evidence already adduced before the HC by Muslim and Hindu parties.

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SEE ALL COMMENTS Justice Bhushan said, “The issues, which have arisen in these appeals are no doubt important issues, which have to be heard and decided in these appeals. Normally, appeals arising out of the suits are placed before a bench of two judges but looking into the importance of the matter, the present appeals have already been placed before a three-judge bench. For the aforesaid reasons, we do not agree with the submission that these appeals be referred to a constitution bench of five judges to reconsider the constitution bench judgment in Faruqui case.” He also recounted Allahabad HC judge S U Khan’s words in the judgment of September 30, 2010, putting the onus of bringing about an amicable resolution to the dispute on Muslims.

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