Thread by @barandbench

A Delhi court to shortly hear the plea challenging decision of a civil court dismissing a suit seeking restoration of Hindu and Jain temples at the Qutub Minar complex in the capital.

#QutubMinar

Additional District Judge Nikhil Chopra from Saket Court to hear the plea.

Read details of order dismissing suit
barandbench.com/news/litigatio…

Hearing begins.

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Appellant appearing in person: There are three connected challenges. Suit was filed before civil judge that this construction was built after demolishing hindu temples.

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Appellant: There are evidences to show that mosque Quwwat-ul-Islam was built from the remains.

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Hari Shankar Jain, the appellant in person is reading out prayers.

Jain: Government has notified it as a protected monument.

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Jain: genesis of this case from very beginning is the admission that there were 27 Jain temples and those were demolished by Mohammedan invaders, first Qutubuddin Aibak. Admitted position that it hasn't been used for prayers. Why can't it (temples)be restored?

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Jain: Judge in impugned order said fabric of constitution will be damaged.

Court: What is the legal right that entitles you restoration?

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Court: Let's assume it was demolished, admission that it was not being used by muslims for the last 800 years. Question is now how can it be restored – on what basis?

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Court: Down south you'll find many monuments where are not being used. Prayers offered. Now you want the monument to be turned into a temple. My question is how you claim a legal right for restoration for something which happened 800 years ago?

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Jain refers to Section 16 of Ancient Monuments and Archaeological Sites and Remains Act.

Jain: If it was a Hindu temple why can't it be used for that purpose?

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Court: But that character is lost…

Jain: Once deity property, always deity property. It is never lost.

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Counsel for the other party reads portions of Ayodhya judgment.

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Jain: After demolition, temple won't lose divinity, sanctity.

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Jain: There are images. Lord Mahavira image, Lord goddess

Court: You mean idols?

Jain: There are idols. There's an iron pillar which 1600 years old. It is in the midst of the monument. That's after the worship. Sankrit shlokas are inscribed there.

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Jain: Lordship may consider deity is never lost. If deity survives right to worship survives.

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Court: On a lighter side, the deity has survived for last 800 years. Let it survive!

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Court: Let's come to remedy. You want a right to worship. Is it a statutory right, constitutional right?

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Court: Existence of idol. Directions are already there not to remove. Question is right to worship. What is the backing of this right? Idol exists there or not is not the case.

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Court: We have a very limited question whether there's any denial of legal right to the appellant.

Jain: There's denial of constitutional right. Refers to Article 13.
(Reads Article 25).

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Jain: Fundamental right is never lost.

Court: You mean that this is your fundamental right?

Jain: Yes

Court: Show me any case law which says right to worship is fundamental right.

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Jain: Right to religion. There are a number of temples in India which are thousand of years old. Like that ‘pooja’ can be performed here also.

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Jain: judgment in Ayodhya case is clear. Right to worship survives. It is never lost.

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Jain: Right to worship has to be adjudicated. There should be some forum for adjudication of this right.

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Jain says the court dismissing the suit made an erroneous decision.

Court: It upheld public order than right to worship.

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Court: Section 3 of this act (places of worship) says maintain status quo as it existed.

Jain: This section will not apply.

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Court: Show me what is the anomaly in the judgement.

Jain: Religion character is of a temple. And it is my right. Court has to visualise what is "character".

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Jain: Right of deity can never be lost. That has divinity forever.

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Jain: There can't be any applicability of Places of Worship as far as this monument is concerned.

Court: What is the observation of the Trial Court?

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Jain: Paras 22 and 23 - “this provision (Section 16 of AMASR Act) has to be read with Places of Worship Act."
My case is exclusion. Entire suit is dismissed without giving me right.

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Court: Any other judgment you're relying upon?

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Counsel for the Archaeological Survey of India begins rebuttal.

ASI: Specific questions posed and I want to answer without getting into details. Whether the character continues or changes, sighting of idols, iron pillar, by whatever names it is called.

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Counsel: I would submit that there are no grounds of interfering with the judgment of the court below. When a monument comes under purview of 1958 act... Character once frozen in that monument can't be changed and this is what Delhi HC has observed in the judgment.

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Counsel: judgement is Maulana Nasruddin v. Superintendent ASI (Jan 27, 1999).

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Counsel reads judgment.

The last three lines are very important. AMASR Act prohibits... Characters of the place where allowed or not allowed for worship is governed by the day it comes under protection.

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Counsel: Under purview of 1958 act there is a period of objections. It is for this reason we have monuments for places of worship and not places for worship. These are living or non living monument.

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Court: Who decides living or non living?

Counsel: The Act itself.

Court: Suppose there's a dispute.. going by what Mr Jain said – once a deity always a deity.

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Counsel: I'll come to that.

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Counsel: Coming to Article 25, 26 and fundamental rights. Judgment of lower court very rightly in para 19 says worshippers have right to worship... Argument is devoid of merit. It is settled that fundamental rights are not absolute in nature.

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Counsel: Court has already found that this right is not available in this case. Now we come to point of demolition of 27 temples and the iron pillar.

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Counsel: The inscription on the mosque itself says that for building Quwwat-ul-Islam mosque the material of 27 temples on the erection for each of which deliwals were used. Inscription is clear that the mosque was built with the remains of these temples.

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Counsel: But nowhere it is mentioned that the materials were retrieved by demolishing temples. Also not clear if they were retrieved from the site or brought from outside.

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Counsel: Not demolished but remains of temples used for construction. Qutub minar is not a place of worship.

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Counsel: Based on these submissions I'd say the judge below has applied its mind in judicial decision.

Jain: One thing is admitted that places or worship act and monument act are applied in two different fields.

Court: The most crucial question is the character of the building

Jain: Nothing on that.

Court: Suppose you say character is this and he says it is this.

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Counsel: Courts can't tinker with it. As per his own submissions that for 800 years it is like this. It is only recently that these things are coming up.

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Court: Most fundamental question is of the character. Because you say the character got frozen. And they say it was a temple..... It's fact against fact. Can it be decided under Order VII Rule XI (CPC)

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Counsel: The lower court decided correctly on it. The judgement of lower court is a detailed one. It was after taking into consideration all arguments.

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Court is dictating order.

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Court: Party at liberty to file brief synopsis on their arguments.

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Court reserves matter for orders. Order to be pronounced on June 9.

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