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The out-going Chief Justice of India Deepak Misra, headed a three judges bench comprising J. Ashok Bhushan and J. Abdul Nazeer, on Sep 27, 2018, passed an order that ‘mosque was not an integral part of Islam’ while hearing the Ramjanambhumi/ Babri Masjid case, which is now in its last phase. No wonder this order brought a ‘sense of rejoice’ amongst the Hindu rightist forces, which immediately jumped to a conclusion that now when SC has upheld a mosque not as integral to Islam, hence, Babri Masjid, no matter it stood since 1528, at Ayodhya, Faizabad, is of no consequence, and for that matter now every mosque in the country, will just cease to exist, in this new paradigm given by the Apex court. To add more grist to their cannon fodder, since Muslims did not go for its ‘review’ the rightist elements, construed, that it was time for Muslims to realise that their claim on Babri Masjid stands as lost! It is in the wake of this misplaced utopia this piece is being written to hone a point that Muslims were not to wiggle over something which was to be qualified as unnecessary.

When Babri Masjid lay demolished on Dec 6, 1992, by BJP affiliated Karsevaks, the Congress PM Narsimha Rao, in a choked voice, gave a speech on Radio, that Babri Masjid would be rebuilt on the same place where it existed and those responsible for its demolition would be punished , but he confounded himself only a month later as he promulgated an Ordinance The Acquisition of Certain Area at Ayodhya on January 7, 1993. Later, a Bill was introduced in Parliament by his Union Home Minister SB Chavan. This Bill later came to be known as the Ayodhya Act 1993. Muslims were left aghast.

After this Acquisition Act was passed by Narsimha Rao government and also simultaneously a Presidential Reference was made to the Supreme Court, which was meant to pave way for the construction of Ram Temple on the demolished Babri Masjid site, it was challenged by Muslim plaintiffs in their Suit No. 12 of 1961 and it was also challenged by Dr Ismail Farooqui, a resident of Lucknow, in his writ petition filed before the SC. Since several petitions were filed in High Court Lucknow Bench also challenging the said Act, the government of India, had moved an application for transfer of all these matters from HC to SC. The Suit No. 12 of 1961 was for Declaration and Possession of Babri Masjid and adjacent land of Qabristan, filed by Sunni Central Waqf Board and nine other Muslims.

It was during the course of arguments Muslims had taken the plea of the violation of Article 25, in making acquisition of mosque, dealing with this contention of Muslims, the SC had observed that unless there was an extinction of right of religious practice, the acquisition of any place of religious worship including mosque, temple, gurudwara or church, was subject to the power of eminent domain and acquisition of all such places was permissible. In the same sequence the SC had observed in Para-82 of Ismail Farooqui Vs Union of India 1994 judgement that mosque was not an essential requirement in Islam and the namaz could be offered even outside the mosque at other places.

At that time no review was filed because the observations in question were read in context of acquisition only. However, when these observations were relied upon in the judgement given by the Lucknow bench of Allahabad HC on Sep 30, 2010, the Muslims had assailed the findings of the learned judges given in this respect. It was this very issue that was raised by Dr Rajiv Dhawan, before the SC, on Dec 5, 2017 and while taking up the appeals for hearing the judges of SC had observed that before starting the final hearing on merits it would be advisable that the issue raised by Dr Rajiv Dhawan, regarding the observations made in Para -82 of the judgement of Ismail Farooqui case, be decided first.

It was in this background that arguments were advanced about the necessity/ propriety/ desirability of making reference to the constitution-bench, to reconsider the observations of Para-82 of Ismail Farooqui case. While deciding this matter the majority judgement has clearly observed that the aforesaid observations made in Para-82 of Ismail Farooqui judgement were confined to the matter of acquisition and it could not be taken in a broader sense. The majority judgement has further made it clear that Ismail Farooqui case has no bearing on the appeals against the HC judgement of Sep 30, 2010.

It is precisely for this reason the Muslims did not find to pursue it through any review-petition as such. The case is all likely to be taken-up when the SC starts after the summer-vacations. Meanwhile, the hoax Congress PM promise of 1992 still rings a bell for its fulfillment as it was made in the capacity of a PM. Some of the demolition accused have died and those alive are far away from being brought to book. J. Deepak Misra retired on Oct 2, 2018.

The writer has written extensively on Ayodhya issue, he is a lawyer, journalist and a former UP State Information Commissioner.


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