Mere existence of Mosque is not enough, Mosque has to comply the requirements mandated by Islam to be a Mosque, SC told

Senior Advocate P N Mishra, appearing for the Akhil Bhartiya Sri Ram Janam Bhoomi Punarudhar Samiti (ABSRJBPS) told the Supreme Court on Friday that various evidences found at the Babri Masjid site suggest that even if the mosque existed there, the mosque doesn’t fulfill the criteria mandated for mosque by the Islam.

He told the apex court that the “Holy Prophet has said that existence of two Qiblas, one of Hindus and the other of Muslims on the same land is prohibited. Further Mosque should always be maintained by Muslims and (Azaan) should be called out atleast twice a day in the mosque and the mosque should not be used as a place for gossip. And a ‘chulha’ was also found at the site”.

“According to Hadees Sahih Muslim, decoration of Mosque with idols and images is prohibited as said by the Prophet. Moreover even the keeping of a doll in the Masjid is prohibited as Angels will never enter such building.

“Presence of images and designs in Mosque would divert the attention of the people while offering Namaz, hence presence of images in Mosque has been prohibited, and however several idols have been recovered from the site,” Mishra told the constitution bench headed by CJI Ranjan Gogoi.

Mishra further told the bench: “Even bells are prohibited in Mosque as it is a musical instrument of shaytan.”

To which the Bobde asked: “Whether bell has been found at the disputed site?”

Mishra replied: “There are evidences of bells being recovered at the site. There are oral evidences as well as scriptural evidences. The prophet has also made it impermissible to offer Namaz facing a graveyard whereas in the present case the disputed structure is surrounded by graveyards. Abdul Hakim, a scholar in Shah Jahan’s time had said that a mosque built by demolishing a temple will not make it a mosque.”

Thereafter, Advocate Hari Shankar Jain appearing for Hindu Mahasabha started his arguments.

Jain said: “Whether hindu building structure was present at the site. Whether a muslim structure was built at the disputed site. Whether there was dedication. What is the effect of non registration of waqf property? Before 1855 there is no evidence to prove that there was a mosque. It was the Britishers who introduced this right. Whenever a sovereign comes he plays the communal card giving grants in the form of the Babri Masjid. Even in Ain-i-Akbari it has been mentioned that all pujas and parikramas were performed by the Hindus and the mosque was not in the possession of the Muslims.”

He added: “In the first Gazetteer it has been mentioned that the Hindus were in possession of the disputed site after there was a fight between them. It was during the British period that the Hindu’s lost their right to worship.”

Jain further read out article 13 of the Indian Constitution explaining the concept of law.

Even a ruler cannot take possession of a temple land. The property was taken over by an invader because Babur was an invader and that will not give possession right of the  disputed site.

Bench questioned Jain: “Who is the head of Hindu Mahasabha?”

Jain said: “There are two appeals in respect of the said issue where all are claiming to be head of the Hindu Mahasabha.”

Jain further explained that the object of invaders like Babur in India was to establish rules to be governed by the Islamic Law and that the case should be decided in accordance with the Hindu law because there was a temple before the construction of mosque and once a temple remains always a temple.

Counsel for Shia Waqf Board said that the Sunnis are claiming possession on the basis of the notification of February 1944. However the worshippers were not in possession as they just went to offer Namaz and were not permanently in possession of the mosque.”

“The Mutwalli was in possession but never claimed any adverse possession. Shia Board is also not claiming any adverse possession. I never opposed the Hindu party. So far as the possession claimed by the Sunnis, there is no basis of claiming it. Every Mosque is a waqf but every waqf is not necessarily a mosque,” the counsel said.

—India Legal Bureau