Hindu groups, which are parties to the Babri Masjid-Ram Temple land dispute, today opposed in the Supreme Court the plea of their Muslim counterparts that the 1994 verdict holding that a mosque was not integral to the prayers offered by the followers of Islam be referred to a larger bench.
M Siddiq, one of the original litigants of the Ayodhya case who has died and is being represented through his legal heir, had assailed certain findings of the 1994 verdict in the case of M Ismail Faruqui holding that a mosque was not integral to the prayers offered by the followers of Islam.
He had told the special bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and S A Nazeer that the observations made in the land acquisition matter pertaining to the Ayodhya site, had a bearing on the outcome of the title case.
Besides, these were already referred to and relied upon by the Allahabad High Court in its judgement on the Ayodhya dispute.
"So far as this aspect (mosques are not integeral to offering of 'namaz') is concerned, this has attained finality," former Attorney General and senior advocate K Parasaran, appearing for the deity 'Ram Lalla Virajman', said.
The veteran lawyer also said that the observations made in the 1994 verdict that a mosque was not an essential part of the practice of Islam has to be read in the context of validity of the acquisition of the Ayodhya land.
"There can be no reason to hold that a mosque has a unique or special status higher than that of other places of worship or other religions in secular India," he said.
Parasaran referred to the legal concept of 'res judicata and constructive res judicata' and said once an issue between the same set of parties and in a similar litigation has been settled and subsequently not challenged by either side, then the court's decision has attained finality and cannot be reopened.
"The interests of the Muslim community were adequately represented before this court in the Ismail Faruqui case. The Sunni Central Wakf Board made independent submissions and also endorsed the arguments on behalf of Muslim community," he said.
"The parties are not entitled to pray for a reference to a larger bench of the said questions in this appeal against the very suit in which the issue has already been decided," he claimed.
Referring to the power of the State, Parasaran said all public religious institutions like church, mosque and temple can be validly acquired in exercise of the "inherent power of the Sovereign on the principle of eminent domain".
The offering of prayer is a religious practice and the place would not be "an essential or integral part of such religious practice unless the place has a particular significance for that religion, so as to form an essential or integral part of the religion", he said.
The lawyer said that 'namaz' is not only offered in mosques but also at any public place and hence it cannot be said that they are integral to the practice.
Referring to the 1994 judgement, he said the court had to consider two aspects as to whether a mosque could be acquired at all and whether a religious place of worship like a mosque, church and temple was immune from acquisition if it is a place of special significance for that religion and formed an essential and integral part of that religion.
The court had referred to various decisions and had said that an acquisition "per se" did not affect fundamental right to practice religion under the Constitution, he claimed.
Parasaran said the court had held that "the protection under Articles 25 and 26 (right to freedom of religion) of the Constitution is a religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential part of the practice of religion."
Referring to the Ismail Faruqui order, he said Ayodhya was of "particular significance to the Hindus as a place of pilgrimage because of the ancient belief that Lord Ram was born there", like Mecca and Madina are places of pilgrimage for Muslims.
At this, the bench asked Parasaran to confine to the issue whether the case be referred to a larger bench or not.
Senior lawyer C S Vaidyanathan, appearing for a Hindu group, termed as "unwarranted" the submission of senior advocate Rajeev Dhavan, appearing for Siddiq, that the 1994 verdict had created an "inappropriate" question of law.
Dhavan then said he wanted to amend his submission and would like to say that the observations had raised a "controversial question of law".
The court would resume hearing on July 6.
The special bench of the apex court is seized of a total of 14 appeals filed against the high court judgement delivered in four civil suits.
A three-judge bench of the Allahabad High Court, in a 2:1 majority ruling, had in 2010 ordered that the land be partitioned equally among three parties -- the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.
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