A special bench headed by Justice Dipak Misra, which is seized of a total of 14 appeals filed against the high court judgement delivered in four civil suits pertaining to Ayodhya title dispute, was told by senior advocate Rajeev Dhavan that Hindu side has not been observing restraint and also not refraining from inciting the public on the sensitive issue.
"It is extremely important that people should restrain themselves, especially the Hindu side. So far as the Hindu side is concerned, it has not observed restraint," Dhavan, appearing for M Siddiq who has died but is being represented through his legal heir, said.
Some leaders said they would go to Parliament to ensure construction of a Ram Temple, which was "contemptous and amounted to pre-judging and pressurising the court", Dhavan told the bench,which also included Justices Ashok Bhushan and S A Nazeer.
He then 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, and said these have been referred to and relied upon by the Allahabad High Court in its judgement in the Ayodhya title dispute.
Referring to a seven-judge bench judgement of 1954 on the integral and essential practices of a religion, the senior lawyer said the 1994 verdict was "founded on a confusion regarding the application of the essential and/or integral test which needs to be resolved as a matter of constitutional significance.
"These concepts here permeated the judgment in the suits and the appeals (of Ayodhya case). It is submitted that these issues need to go to a larger bench of 5 or 7 Judges."
Former Attorney General and senior advocate K Parasaran, appearing for the deity -- Ram Lalla Virajman, opposed Dhavan's plea and said his client (M Siddiq) was a party to the litigation in the courts below and hence, cannot seek reference of the case to a larger bench.
"His (Dhavan's) client was party to the litigation and now, he is precluded from raising this issue," Parasaran said, adding that the question of law only can be referred to the larger bench.
At the outset, Dhavan said there were issues which were to be decided by the larger bench. "Is a mosque and prayer in it a part of the essential practice of the Muslim faith," he asked.
"Is it consistent with Indian secularism to evaluate the comparative significance of religious practices of different faiths to the detriment of another," Dhavan said, adding it was a key question needed to be answered.
"Once the Babri Masjid suit existing at the time of the Ismail Faruqui judgement stood fully revived, could it be said that the issues in it stood limited by observations in the Ismail Faruqui case," he asked.
Referring to the status quo at the site, he also asked "could it be said that the issue of Muslim ownership of the graveyard and other claims was rendered not adjudicatable".
He said on one hand, it has been observed that mosques are not integral to practice of Islam, while on the other, the present Haryana Chief Minister says that Muslims should offer 'namaz' in mosques and not on roads.
The lawyer then referred to the concept of secularism and said it was based on equality. India has the third largest Muslim population in the world and we are telling them that the mosques are not integral to Islam, he pondered.
The court posted the matter for further hearing on May 17 when Parasaran would advance arguments on the issue whether the Ayodhya case be referred to a larger bench.
Earlier, the Hindu bodies, fighting a legal battle to stake claim over the disputed site in Ayodhya, had told the Supreme Court that it was purely a property dispute which should not be referred to a larger bench.
The top court was told that the issue of "political or religious sensitivity" cannot be a ground to refer the matter to a larger bench and India has moved forward since the 1992 demolition of the Babri Masjid.
Earlier, the court had dashed the hopes of activists like Shyam Benegal and Teesta Setalvad to intervene in the sensitive Babri Masjid-Ram Temple land dispute case, making it clear that only the parties to the original lawsuits would be allowed to put forth their arguments.
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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