Thread by @TheLeaflet_in

Day 17.

#Ayodhya case.

Bench has assembled.

Senior advocate Kapil Sibal mentions contempt petition filed by Dr. Rajeev Dhavan against Prof N Shanmugam for allegedly threatening Sr. advocate Dhavan for representing Muslim parties

CJI orders to list contempt petition tomorrow.

Senior advocate Rajeev Dhavan (RD) commences his arguments on behalf of Sunni Waqf Board.

Dhawan: Today is the 18th day of the hearing My lords, on 18th Day Mahabharat starts.

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RD : I have no intention whatsoever to break decorum of the court. It is universally recognised that i am irritating. My second apology is to Mr. Mishra. I think a counsel has a right in this court to not to be disturbed.

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RD: My lords had said i could get a mid week break, can it be Wednesday?

CJI: Take it on Friday, it'll be more convenient.

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RD: I will raise 4 preliminary questions and after that there are certain tid bits that have come, like questions posed by the bench. First, i will give a template within which this case can be assimilated.

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RD: Second, on regime change, what was argued by Mr. Mishra in saying there was a regime change and when it is darul islam. I ask what is the law tbat we have inherited. The law that guided was based on justice, equity and good conscience.

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RD: First question is who, the whom, second is what and where, third is how and when gained, on what basis do these rights arise and fourth is when were they lost.

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RD: My friend Vaidyanathan said wells etc were recognised, they were recognised because they were needed. But the question of Swayambhu does not arise, because it was raised first time in 1989.

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RD: Secondly, parikrama is a form of worship and not Evidence. and in the mao shown i cannot figure out where is the parikrama.

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RD: RD: Its indicated to your lordships how Justice, equity and good conscience was developed. that is the law of this land, that is the law of this case.

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Dhawan is taking the bench through various regulations etc. guiding the concepts of Justice, equity and good conscience starting from the 18th century the Government of India Act.

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Dhawan: Except my learned friend Mr. Ranjit Kumar noone stated the facts of the case that were being cited.

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Dhawan submits that earlier Pandits used to come in courts to give evidence and were usually bribed. In 1859 the Pandit evidence was done away with ans shastras were relied upon.

Dhavan: In whom was the title when the sovereignty was transferred in 1859. The question is that if onus will start in 1859 or do i have to go all the way back to 1528.

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RD: Which law are we going to apply, are we going to ask did Babar do it or not?

RD: Mr. Mishra argued 2 things, first because his arguments were rejected in High Court, he read 34 pages of his own arguments before the HC not the findings, he is here for one thing. He said look what the full bench has done to my arguments, please reverse it.

While referring to a number of Judgments to indicate the development of law, Dr. Dhawan submits: This is only an example on how Anglo- Hindu law developed. The inheritance was from British, you inherited it, you decided to retain it, i dont think my lordships can go beyond that.

Dhawan submits that Justice Agarwal had given his finding on existence of the temple on the basis of surmises and conjectures ad preponderance of probabilities on historical facts.

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Dhavan: These are the problems of methodology in the Judgment. What does the Gazetteer say in the begining? that they have been asked to prepare this Gazette so that they could inform the British people. Can we really trust Gazetteers before 1858?

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RD: My learned friend (Meenakshi Arora) will also explain that there was no structure. What they (ASI) did was that they projected pillar bases but they were found on different levels. If there was one structure it wouldn't be in different levels. My friend will argue that.

RD: While considering the issue of Inscriptions at the site, Justice Agarwal accepts that the translators perhaps had not cross checked the originals. Further Justice Agarwal accepts that there is no indication of what changes were made in the inscriptions.

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RD: One question that had been asked by Justice Bobde about what is 'Itihaas' Mahabharat is Itihaas but Ramayana is called 'Kavya'.

J. Bobde: But Kavya can contain facts.

RD: But liberty has been taken by the poets, especially Tulsidas.

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J. Bhushan: Even Kavya can throw some light upon history, depending on which time it was composed.

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Answering the earlier question asked by J. DYC as to whether any mosque had been recorded in travellers accounts, Dr. Dhawan submits that Marco Polo went ro China but never mentioned the Great Wall in his accounts.

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RD: The inferences that have been drawn are very very wide my lords. Except Walter Hamilton, everyone notices the mosque.

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RD: Two questions also arose on 14th August. One is Mr. Vaidyanathan saying that history is perceived from European view and Justice Chandrachud asking whether it can be a historical proof.

RD: My lords history cannot be read without historiography. It tells you how to read history. Subaltern history cannot be the approach.

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RD: Without the tools everything is history. We cannot play amateur historians in this matter and we are all amateur.

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RD: The question my lord Justice Nazeer put. Does the property belong to God. I'll cite a judgement from my compilation. Vidya Varuti's case. The law is clear that once the property is declared as waqf, the right of ownership is transferred in the Almighty.

RD: Vidya Varuti Thirtha v. Balusami Ayyar, AIR (1922) 9 PC 123.

They say in the Constituent Assembly debates that Ambedkar was the Manu of Kalyug. Therefore we think in terms of Yugas and not in dates.

RD: What is Swayambhu My lords. It is where God manifests. When you see Lord Shiva in Ice, then nature has manifested itself in that form. They are trying to indicate swayambhu is an area. This is an entirely novel argument that has come up first time in 1989.

RD: When we put forward Documents like Swayambhu and relying on Parikrama i dont get how do you prove swayambhu by Parikrama.

RD: I am not saying that idol worship is not important bit just because parikrama is performed it does not become swayambhu.

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RD: I just want to take my lords to the one page stance of the Nirmohi Akhara. Because your lordship gave them the option to reply but they did not. This was with regard to submissions on maintainability of Suit 5 by Mr. Jain.

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RD: Now my lords in the absence of a reply we must interpret this document. (Referring to one paragraph statement handed to the bench by Mr. Sushil Kumar Jain on behalf of Nirmohi Akhara.)

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RD: Now the first part, what Justice Bhushan had pointed out that, the condition. He says provided Hindu parties to not challenge the shebaitship rights of Nirmohi Akhara.

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RD: Second part is that Nirmohi Akhara can maintain the suit on its own independent of the deity.
Is the other side (in Suit 5) conceding to this position? they should reply, my lords.

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RD: Last it is stated that the Reliefs claimed by Nirmohi Akhara cannot be said to be reliefs against the deity. Now i have a question, the Nyas is here my lords which says it will build a huge magnificent temple.

RD: Is it going to be the shebait of the new temple? It is this assurance in the third proposition.

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RD: It is the strange equity that has been sought to be claimed by Mr. Jain. Our temple was destroyed, this happened, that happened, the British were terrible.

RD: In1934 you break a masjid, in 1949 you commit trespass, in 1992 you demolish a mosque and they come here and say that the British were not fair to Hindus.

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RD: You destroy part of my mosque, you trespass into it, then you demolish it and the you say authorities collaborated against the Hindus.

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RD: When Mr. Venugopal went to represent the UP Government, and came back he said "my hear hangs in shame" so you talk about your shameful acts. And it is being said that it is a Hindu Constitution.

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J. Bhushan: your arguments should be in relevance of the issues.

RD: Please let me answer my lords, what is relevant? that after Constitution i have a right under Article 13, because that is what was argued.

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CSV (from other side): Let my friend deal with the plaintiffs case first my lords.

CJI: He is at liberty to place his case as he wants.

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Bench rises for the lunch.

Hearing to continue at 2 pm.

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Post lunch session.

Bench assembled.

Senior advocate Rajeev Dhavan (RD) resumes his arguments for Sunni Waqf Board.

RD: I have these arguments that i have to address. I do not want someone filing a review saying i said Hindu Law and you didn't listen.

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RD: I'll quickly take you through my note, so that this argument is never raised before any court.

Dr. Dhavan is reading parts of constituent assembly debates with regard to discussion that took place on the preamble.

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RD is indicating to the bench that all suggestion to include references of God, of a supreme being and even the name of Gandhi as the Father of the Nation was shot down by the Constituent Assembly.

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RD: So never my lords there has been any basis for what Mr. H S Jain has submitted.

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RD: A claim was made by Mr. Jain that my right after 1950 was public law. When my lords asked him about Muslim law he said no Muslim Law. This argument should never be raised anywhere. ait has to be dealt once and for all. He said its invaders versus the natives.

Dr. Dhavan is making submissions on res nullius and the requirements thereof. He cites the Australian case of granting property of aboriginals.

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RD: Their interpretation of res nullius is completely based on Swayambhu and if it was swayambhu ig could not have been res nullius. For us it eas on vacant land. Their argument with regard to Res Nullius is not an argument at all.

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RD: There is one other concept. What is the meaning of the word Swatya or ownership. That is the concept of property. Now which concept of property are you going to apply.

J. Bobde: This Swatya was limited to corporeal.

RD: All ownership across the board in Hindu Law.

Dr. Dhavan submits that while Mahabharat is considered as Itihaas (History) but Ramayana is Kavya (Poetry) and so Valmiki had literary liberties to state certain things. He submits that Ramayana is confined to the life of Lord Rama and his brothers.

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RD: If you are relying on either of the Ramayanas they are to be treated as texts, or are they oddities. The question of Swayambhu has been raised in context of wells and tanks. Wells I'll show my lords have always been regarded as worthy of reverence, since vedic period.

RD: I thought that the first time Anglo Hindu law was explained to my lords was on last tuesday when Mr. Jain read out certain paragraphs. I just want to add a little to that.

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RD: (In relation with the argument that a temple had existed at the disputed site since time immemorial) : No temple or monastic institution existed in the vedic age. There were no temples. No idol worship in vedic times.

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RD: The temples and monasteries come much later then where does this time immemorial start.

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RD: They say my lords that there was a huge temple of Lord Ram. They dug 90 trenches, 90, and they are all in different time periods, that my friend will show. They say you see the pillar bases and it was a huge temple....

...It must have been quite an uneven one since it exists in different times.

RD: In whom does the property vest if there is no donee. Today they are talking about the entire property being given to them. The question arises in whom does the property rest after dedication and when it becomes res nullius.

RD: Because they are asking your lordships to declare the property on the basis of one thing only - belief.

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RD: A temple is not a juristic person, an idol is a juristic person but a temple is not.

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Dr. Dhavan submits that a Hindu idol is not a perpetual infant. This is the anglo hindu law on the subject. A hindu idol is sometimes referred to as a perpetual infant but the analogy is not correct.

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RD: Suit 1 was filed in 1950 and there was no swayambhu, Nirmohi Akhara filed the suit in 1959 and there was no claim of Swayambhu, then in 1961 our suit was filed surely contrary to the suits filed so far and after 30 years yoi come and say that the deities were not impleaded.

Dr. Dhavan submits that it is only through the shebait that the deity could have been represented unless it is proved that the shebait was not acting in the interest of the deity. Also that the deity need not be made a party in all suits.

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Dr. Dhavan is now stating his submissions in reply to the argument of Parens Patriae that was placed earlier before the bench during arguments in Suit 5.

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With this Dr. Dhavan has summarised what he will be arguing during the hearing. Bench rises for the day.

Hearing to continue tomorrow at 10:30 am.

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