Day 12 Arguments
Ayodhya Title DisputeJuly 20th 2018
Today at 2.00 P.M., the hearings resumed in the Ayodhya title dispute case.
At the outset, Hari Nath Tilhari, objected to the use of the phrase “Hindu Taliban” used by Mr. Rajeev Dhavan in the previous hearing. Mr. Rajeev Dhavan insisted that the act destroying the 15th century mosque in Babri was an act similar to the destruction of the Bamiyan statutes in Afghanistan. Some lawyers were shocked at the use of the phrase “Hindu Taliban” and were seen shouting at Mr. Rajeev Dhavan. The intervention of CJI Misra calmed tempers in the court and one of the lawyers was specifically asked to leave.
CJI Misra reminded everyone to maintain decorum inside the premises of the court. He specifically requested Mr. Rajeev Dhavan to desist from using phrases like “Hindu Taliban” in a loose manner. However , Mr. Rajeev Dhavan stuck to his stand to use the phrase “Hindu Taliban” and maintained that it was an apt pharase to describe how Babri Mosque was demolished.
Mr. Dhavan resumed his arguments from the previous day on July 13, 2017 by highlighting the three aspects comprising res judicata. He then focused on the third aspect – the pure question of law being outside the ambit of res judicata. He took the court through a series of decisions on this aspect.
Relying upon Gopakumar Nair v. CBI, he argued that a pure question of law, if wrongly decided, can never be hit by res judicata. He also stressed upon The Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills where the case was not decided upon the “narrow grounds of res judicata”. Relying upon Justice Nariman’s decision in Canara Bank v. Subbaraya Setty, he argued that an erroneous decision on a question of law is an exception to res judicata.
Mr. Dhavan submitted that in the decision of Ismail Faruqui, the court held that there was no acquisition at all. He argued that the issue of whether praying in a mosque is an essential practice of Islam was never decided.
Mr. Dhavan then began his submissions on the question of essential religious practices. He argued that a detailed examination is required to determine what is an essential religious practice. He cited the cases of Devaru, Dargah Committee and Parsi Excommunication to argue that such an examination had never been undertaken in Ismail Farooqui.
Mr. Dhavan then referred to the two concepts – comparative user and comparative significance. He argued that comparative use of the disputed site was only in the context of providing injunctive relief. He then argued that comparative significance could not be an issue as decided in Ismail Faruqui. He argued that deciding on the particular significance lays down the wrong law and amounts to watering down of Article 25.
Mr. Dhavan then referred to the rich diversity of India to argue that even after demolition, a Muslim is entitled to prayer in a mosque.
CJI Misra decided that a judgment on whether to reconsider the law laid down in Ismail Faruqui by a constitution bench will be given by the three-judge Bench.