Download - Writ Petition of Subramanian Swamy on his fundamental right to worship in Ram Mandir (SC, 2016)
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IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION(CIVIL) NO:________ OF 2016
(A PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA)
DR. SUBRAMANIAN SWAMY …...PETITIONER
VERSUS
UNION OF INDIA & ANR .....RESPONDENT
WITH
I.A NO. OF 2016
APPLICATION FOR SEEKING PERMISSION TO APPEAR
AND ARGUE THE MATTER IN-PERSON
PAPER BOOK
(For index kindly see inside)
PETITIONER-IN-PERSON: DR. SUBRAMANIAN SWAMY
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INDEX
RECORD OF PROCEEDINGS
S.NO. DATE OF RECORD OF PROCEEDINGS PG. NO.
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INDEX
S.NO. PARTICULARS PG.NO.
1. Listing Performa
2. Synopsis & List of dates and events
3. Writ petition under Article 32
of the Constitution of India with affidavit.
4. I.A. No:______/2016. An application for
seeking permission to appear and argue
the matter in-person.
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SYNOPSIS
The present Petition is being filed by the Petitioner urging this
Hon‘ble Court to allow the Hindus to rebuild the Rama Temple at the
Ram Janmabhoomi site in Ayodhya, State of U.P. The exact spot
where Lord Rama was born (Ram Janmabhoomi) has been and
remains firmly identified in the Hindu mind and is held as sacred.
This is the very area where stood from 1528 till December 6, 1992, a
structure that came to be known as Babri Masjid, put up in 1528 by
Babar‘s commander Mir Baqi.
The Petitioner is a devout Hindu Bhakta of Lord Sri Rama, who, vide
the present Writ Petition under Article 32 of the constitution of India,
seeks to enforce the Fundamental Rights guaranteed under Article 25
& Article 21 of the Indian Constitution to the Petitioner as well as to
other persons belonging to the Hindu religion.
That Article 25 of the Constitution grants to a person the freedom to―freely‖ practice, profess and propagate his/her religious beliefs. Any
restriction/denial of access to place of religious worship results in the
failure to protect the spirit and soul of the person and consequently
his/her life.
That the fundamental right to protection of life under Article 21
includes the protection of not only the body but also the protection of
spirit and soul of the person, which is inherent with access to faith and
religious belief.
Therefore, it is most respectfully submitted that this Hon‘ble Court is
duty bound to ensure that in enforcing a person‘s right guaranteed
under Article 32 of the Constitution, it acts in a manner in furtherance
of enforcement of fundamental rights especially when adjudicating on
issues of social justice and larger public interest.
The Petitioner also approaches this Hon‘ble Court for
directions/orders to expedite the adjudication and/or disposal of the
order of the Lucknow bench of the Allahabad High Court dated
30.09.2010, the appeal(s) of which are pending before this Hon‘ble
Court. This Hon‘ble Court while issuing notice on the Appeals on
09.05.2011 (in Civil Appeal 10866-67 of 2010) ordered status quo as
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per the 1994 SC judgment in the case of I smail F arooqui vs Union of
India [(1994) 6 SCC 360]wherein this Hon‘ble Court restricted the
exercise of right of worship. Such restriction affects the fundamental
rights of the Petitioner as well as other persons of the Hindu religion.
Therefore, the Petitioner urges this Hon‘ble Court for expeditious
adjudication and disposal of the said matter to protect the right to life
which includes the spirit and soul as guaranteed to the Petitioner as
well as other Hindus.
The restriction affects the fundamental rights (under Article 21) of the
Hindus, however, it does not in any way affect the fundamental rights
of the Muslims. There is a well-established difference in the
underlying faith and religious beliefs of the Hindus and Muslims,
including the manner of prayers and the place of worship. In Ismail
Farooqui vs Union of I ndia (supra), the Supreme Court of India
observed:
―It has been contended that a mosque enjoys a particular position in
Muslim law and once a mosque is established and prayers are offered
in such a mosque, the same remains for all time to come a property of
Allah … and any person professing Islamic faith can offer prayer in
such a mosque, and even if the structure is demolished, the place
remains the same where namaz can be offered. Accordingly, its
acquisition is not prohibited by the provisions in the Constitution of
India‖.
A temple and a masjid cannot be considered on a par as far as
sacredness is concerned. A masjid is not an essential part of Islam
religion, according to the above majority judgment of a Constitution
Bench of the Supreme Court, whereas according to the House of
Lords, U.K. (1991), the temple is always a temple even if in disuse or
ruins. Thus, the fundamental truth is that the Ram temple on Ram
Janmabhoomi has an overriding claim to the site than any mosque.
It is also well established by GPRS-directed excavations, done under
the Allahabad High Court monitoring and verification in 2002-03,
that a large temple did exist below where that Babri Masjid structure
once stood. The Archaeological Survey of India (ASI) carried out
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excavations from 12.03.2003 to 07.08.2003, excavated 90 trenches
and submitted its report. Inscriptions found during excavations
describe it as a temple of Vishnu Hari. The ASI confirmed these
findings on investigations that were directed by the High Court.
Therefore, there exists conclusive evidence of there being a Ram
temple on the disputed site, consequently the Masjid was illegal,
erected contrary to Islamic tenets.
The Petitioner, therefore, approaches this Hon‘ble Court to guarantee
the enforcement of his (and other Hindus) fundamental rights and
permit the rebuilding of the Lord Rama temple on Ram
Janmabhoomi. He further urges this Hon‘ble Court to expedite
adjudication and disposal of the said matter pending before this
Hon‘ble Court. This Hon‘ble Court is duty bound as the guardian of
the Constitution to expedite the adjudication and disposal of the Ram
Janmabhoomi matter and in recognition of the larger public
importance hear the matter on day to day basis in furtherance of social justice.
LIST OF DATES
1528 The Babri mosque was built in
Ayodhya.The land on which the Babri
mosque was built is the 'Ram Janmabhoomi'
(birthplace of the God-king Rama). But, Mir
Baqi, one of Mughal king Babur's generals,
destroyed a pre-existing temple of Rama
and built Babri Masjid (Babur's mosque) at
the site.
1859 The British administration erected a fence to
separate the places of worship, allowing the
inner court to be used by the Muslims and
the outer court by the Hindus.
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1885 MahantRaghubar Das filed Suit No. 61/280
of 1885 in the Court of the Sub-Judge,
Faizabad, against the Secretary of State for
India, seeking permission to construct a
temple on the Ram Chabutra (adjoining the
Babri structure).
1886 The permission was not given but district
Judge of Faizabad court FEA Chamber (an
Englishman) gave his verdict and said, " It is
most unfortunate that a masjid should have
been built on land specially held sacred by
the Hindus, but as that event occurred 356
years ago, it is too late now to remedy the
grievance‖.Since the English, as policy
never sought to disturb the social status quo
in India as evidenced, the Judge took theeasy way out and dismissed the Suit.
December 22-23, 1949 50-60 people placed the idols of Ram and
other objects right under the central dome.
This led to the property going into the hands
of the receiver, and puja being conducted by
a pujari appointed by the receiver.
January 16, 1950 Gopal Singh Visharad filed a suit in the
Faizabad civil court (suit no 2 of 1950 now
registered as Other Original Suit No. 1 of
1989 in the High Court) seeking exclusive
rights for performing puja for Ram Lalla.
He sought a restraint order on the removal
of idols on which the judge issued a
temporary injunction. This order was later
confirmed by a Division Bench of the
Allahabad High Court.
December 5, 1950 MahantParamahansa Ramachandra Das
filed a suit (no 25 of 1950 now registered as
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Other Original Suit No. 2 in the High Court)
for the continuation of puja and keeping the
idols in the Babri structure. In August 1990,
out of sheer frustration, the Mahant
withdrew the case.
December 17, 1959 The third suit (no 26 of 1959, now
registered as Other Original Suit No. 3 of
1989 in the High Court) was filed by the
NirmohiAkhara seeking transfer of charge
of the disputed site from the receiver.
December 18, 1961 The fourth suit (no 12 of 1961 now
registered as Other Original Suit No. 4 of
1989 in the High Court) was filed by the
U.P. Sunni Central Board of Wakfs for the
declaration and possession of the Babri site.
Significantly, this suit was filed with days to
go before the expiry of the 12-year
limitation period.
1984 The Vishwa Hindu Parishad (VHP) began
campaigning to build the Ram temple at
Ayodhya.
February 1, 1986 Order passed by the Faizabad District Judge
for opening locks of the Ram Janmabhoomi/
Babri Masjid and allowing pooja by
devotees.
February 3, 1986 Two days after the lock was opened, a small
group of Muslim lawyers petitioned the
High Court in Lucknow, to order that
nothing more happen to the site. The judge
issued a notice that the ―status quo‖ be
maintained.
February 1986 Prominent Muslim leaders decided to form
the Babri Masjid Action Committee.
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November 9, 1989 With only days to go for the Lok Sabha
election, the Rajiv Gandhi government
allowed the VHP to perform the shilanyas
(foundation laying ceremony) of the temple,
thus implicitly accepting that the Hindus are
within their rights to build a temple on the
disputed site.
July 1, 1989 The fifth suit, in the name of Bhagwan Ram
LallaVirajman, was filed after a gap of 28
years. While the first four suits were filed
during periods of relative political calm, the
fifth suit coincided with the escalation in the
political movement. Only a month earlier,
the BJP had officially joined the movement.
1989 With Suit No. 2 withdrawn, only four title
suits remained in the Faizabad Civil Court.
In 1989, on an application by the then
Advocate General of U.P., these suits were
transferred to the High Court. On behalf of
the Hindus it was argued that the right to
worship the deity of Ram Lalla at the
disputed site in Ayodhya must be
recognised by the Court, as millions of
Hindus believed it to be the birthplace of
Lord Rama. Further, that in Hindu ethos and
Hindu customary law, unlike in other
religions, the concept of deity was a very
distinguishing feature. The Hindu side
quoted the Valmiki Ramayana, the
SkandaPuran, the Gita as also a whole range
of other literary and cultural evidence to
claim that Ram was born in Ayodhya. It
cited many accounts by foreign travellers of
the 15th, 16th, 17th and 18th Century
besides a series of Gazetteers to argue that
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not only before 1528 but even thereafter
Hindus held possession of the place.
September-October,
1990 Mr. L.K. Advani's Ram RathYatra
October 19, 1990 The RamJanmabhoomi/ Babri Masjid
(Acquisition of Area) Ordinance, 1990
promulgated to acquire the disputed shrine
and its adjoining area.
October 23, 1990 The Ram Janmaboomi/ Babri Masjid
(Acquisition of Area) Withdrawal
Ordinance 1990 promulgated to cancel the
earlier Ordinance.
December 6, 1992 Ram Janmabhoomi/Babri Masjidwas
attacked and demolished.The Idols wereremoved and reinstalled. However, a wall
and shed was erected on 6 and 7 December.
President‘s Rule was immediately imposed
in UP and the UP Assembly was dissolved.
December 27, 1992 Central Government decides to take over
Ram Janmabhoomi/ Babri Masjid site.
January 7, 1993 Acquisition of Certain Area at Ayodhya
Ordinance issued. Core question of dispute
referred to the Supreme Court by the
President of India.
September 1993 A bench of five justices started deliberations
in September 1993.
September 14, 1994 Learned Solicitor General, in the aforestated
case submitted before the Hon‘ble Court the
Central Government‘s commitment through
an affidavit stating that “…if the question
referred is answered in the affirmative,
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namely that a Hindu temple/structure did
exist prior to the construction of the
demolished structure, government action
will be in support of the wishes of the Hindu
community. If on the other hand, the
question is answered in the negative,
namely that no such Hindu temple/structure
existed at the relevant time, then
government action will be in support of the
wishes of the Muslim community….”
1994 M. Ismail Faruqui vs. Union of India ,
(1994) 6 SCC 360
The court, by a majority decision, upheld
the law acquiring the land. But it said the
government should hand over the small plot
of about a quarter-acre, where the mosque
and its two courtyards had stood, once the
suits claiming title to the site were decided.
The justices also reinstated those lawsuits,
which had been transferred to the HighCourt
in Lucknow from Faizabad.
In its judgment, the Supreme Court couldn‘t
resist a commentary on what happened on
the day of the Babri Masjid‘s demolition.
The Hindu community must, it said, ―bear
the cross on its chest for the misdeed of the
miscreants reasonably suspected to belong
to their religious fold .‖
In early 1995, the frontlines of the dispute
shifted back to the Lucknow Bench of the
Allahabad High Court. The suits claiming
title to the site were bundled together to be
part of the same case.
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On the Hindu side, there were three suits.
One filed by Gopal Singh Visharad, an
Ayodhya local, in 1950 ( supra). Another,
filed in 1959, by the NirmohiAkhara, the
sect of sadhus dedicated to serving Ram
( supra). And another, filed in 1989 that
added a new dimension to the proceedings.
(A fourth suit, filed in 1950 by another
sadhu in Ayodhya had been withdrawn.)
On the Muslim side, there was the Uttar
Pradesh Sunni Central Board of Waqfs,
which was responsible for maintaining
Muslim holy sites, and six individual co-
plaintiffs from Ayodhya and neighbouring
areas.
In the above case, the Hon‘ble Court has
also held that a mosque is not an essential or
integral part of Islam. Hence, a mosque can
be demolished in certain circumstance under
secular law, and some other site can be used
for reading namaz. Accordingly, its
acquisition is not prohibited by the
provisions in the Constitution of India(para
70, 78, 80& 82). That is not the position vis
a vis a temple in which the idol has been
consecrated by pranaprathista puja and built
according to agama shastras. The Rama
idol on the chabutra (the chabutra was built
within the complex during Akbar‘s regime)
is one such consecrated idol. Also notable
historians have held that the temple earlier
to that, of which remains are still there in
the archaelogical records, must have been
built in the days of Raja Vikramaditya of
Ujjain.
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1996 The recording of oral evidence started in the
summer of 1996 in Lucknow bench of the
Allahabad High Court.
2003 Archaeological Survey of India (ASI)
begins a court-ordered survey to find out
whether a temple of Ram existed on the
disputed site. The survey says there is
evidence of a temple beneath the mosque;
Muslims dispute the findings. A court rules
that seven Hindu leaders should stand trial
for inciting the destruction of the Babri
Masjid in 1992.
2004 Congress government comes to power at the
Centre after six years of BJP rule. Leader of
the Opposition L.K. Advani says his party
has an unwavering commitment to building
a Ram temple at Ayodhya.
July 2010 By July 2010, the lawyers had completed
their arguments. The Lucknow Bench of the
Allahabad High Court set a date —
September 30, 2010 – to deliver the first
verdict in a case that had begun 60 years
before.
September 30, 2010 Ayodhya verdict
The Lucknow bench of the Allahabad High
Court on September 30, decided to equally
divide the disputed land between the three
main litigants — the Uttar Pradesh Sunni
Central Waqf Board, NirmohiAkhara and
Ram LallaVirajman. The High Court order
meant that two-third of the land went to
Hindu representatives and one-third to
Muslim representatives, which was rejected
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by both sides demanding claim to the entire
land.
The parties to the suit are in appeal before
Supreme Court in, and the matters are still
pending.
JamiatUlama-I -H ind vs. Mahant Suresh
Das (2011) 15 SCC 440: A bench of
Justices AftabAlam and R.M. Lodhaheld
that during the pendency of the above
appeals, the parties shall maintain status quo
at the disputed site as directed by the 1994
Constitution Bench.
17.2.2016 The present petition under Article 32 before
this Hon‘ble Court.
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IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION(CIVIL) NO:________ OF 2016
(A PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA)
IN THE MATTER OF:
DR. SUBRAMANIAN SWAMY
A-77, NIZAMUDDIN EAST,
NEW DELHI- 110013 …...PETITIONER
VERSUS
1. THE UNION OF INDIA,
THROUGH THE SECRETARY
TO GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, CENTRAL SECRETARIAT,
NEW DELHI-110001
2. THE STATE OF UTTAR PRADESH
THROUGH THE SECRETARY TO
GOVERNMENT OF UTTAR PRADESH
HOME DEPARTMENT,
LAL BAHADUR SHASTRI BHAWAN,
LUCKNOW, UTTAR PRADESH -226001
……….RESPONDENTS
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TO,
THE HON'BLE THE CHIEF JUSTICE OF INDIA AND HIS
COMPANION JUSTICES OF THE SUPREME COURT OF
INDIA
WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA FOR ENFORCEMENT OF
FUNDAMENTAL RIGHTS GUARANTEED TO THEPETITIONER AS WELL AS OTHER PERSONS BELONGING
TO THE HINDU RELIGION UNDER ARTICLE 25 OF THE
CONSTITUTION OF INDIA;
AND FOR THE DIRECTION OR ORDER BY THE SUPREME
COURT TO EXPEDITE THE ADJUDICATION OF THE
CORRECTNESS OF THE IMPUGNED JUDGMENT AS WELL
AS DETERMINING THE AFFECT OF THE CONTINUED
RESTRICTION ON THE EXERCISE OF FUNDAMENTAL
RIGHTS UNDER ARTICLE 25 IMPOSED BY THIS HON’BLE
COURT BY VIRTUE OF INTERIM ORDER DATED 9/05/2011
PASSED IN CIVIL APPEALS NOS 10866-67 OF 2010
AND SEEKING DIRECTION OR ORDER FOR
ENFORCEMENT OF FUNDAMENTAL RIGHT UNDER
ARTICLE 21 OF THE CONSTITUTION WHEREBY
PROTECTION OF THE RIGHT TO LIFEAS UNDERSTOOD
AND INTERPRETED BY THIS HON’BLE COURT HAS BEEN
EXPANDED TO PROTECT AND ENSURE ACCESS TO
ESSENTIALS TO LIFE MUST NECESSARILY ALSO
INCLUDE THE PROTECTION OF THE RIGHT, FREEDOM
AND LIBERTY OF THE INDIVIDUAL TO HAVE FREE ANDUNRESTRICTED ACCESS TO PLACE OF HIS/HER
RELIGIOUS WORSHIP;
AND FOR ENFORCING THE RIGHTS ACCUMULATED TO
THE PETITIONER AND OTHER PERSONS OF HINDU
RELIGION UNDER ARTICLE 25 OF THE CONSTITUTION
OF INDIA PURSUANT TO THE REPORT OF THE
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ARCHEOLOGICAL SURVEY OF INDIA (ASI) FOR
REBUILDING OF THE RAM TEMPLE ON THE RAMJANAM
BHOOMI SITUATED AT AYODHYA;
AND UNDER ARTICLE 26 OF THE CONSTITUTION OF
INDIA FOR ENFORCING THE RIGHT OF THE PERSONS OF
THE HINDU RELIGION TO REBUILD AND MAINTAIN THE
RAM TEMPLE;
MOST RESPECTFULLY SHOWETH:
1. The Petitioner is a nationally known public figure, active in
politics and public affairs. He has consistently and fearlessly
exposed corruption in high places. He is deeply concerned
with the protection of the Rule of Law and the enforcement of
the statutory duties of the Government as well as purity in
public life. The Petitioner holds a doctorate in Economics from
the world famous Harvard University in the U.S.A. where,
before returning to India he had taught Economics – and he still
continues to teach there every summer; and he had also taught
Economics at the Indian Institute of Technology in Delhi,
where he was a full Professor. He is a senior politician, a
Member of Parliament for five terms, who has been a senior
Cabinet minister in the Central Government, holding the
portfolios of Commerce and Law & Justice (1990-91), and later
he was Chairman of the Commission for Labour Standards, a
post of Cabinet Rank (1994-96). Twice he has been elected to
the Rajya Sabha from the State of Uttar Pradesh, to the Lok
Sabha twice from Maharashtra and once from the State of
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Tamil Nadu. He has numerous books and articles to his credit.
He has lectured both in India and abroad on national concerns
as well as on Economics. He has initiated and conscientiously
fought many public interest litigations. He regards this as a
duty he owes to his country.
2. The Petitioner is also a devout Hindu and a fervent bhakta of
Lord Sri Rama. He has argued before this Hon‘ble Court the
contentious Sethusamudram Ship Channel Project matter (the
Project involved rupturing the Rama Setu, held to be sacred by
Hindus); and therein had obtained a stay order to protect the
Rama Setu. Final orders thereon have been reserved by this
Hon‘ble Court.Also a Cabinet decision has been taken to ―not
touch‖ the ancient Ram Sethu or the Adam's Bridge in
implementation of the Sethusamudram Ship Channel Project.
3. That the Petitioner was also allowed by this Hon‘ble Court to
be impleaded in person in the Ram janambhoomi matter titles
as “Mohd. Aslam @Bhure vs. State of U.P. &Anr” Contempt
Petition (C) No. 98/1992 in Writ Petition No. 972& 977/1991
pertaining to the provision of basic amenities to the bhaktas and
devotees who come to worship at the present makeshift
RamlalaMandir. The devotees get no basic facilities like
drinking water. Shoe/chapel racks, toilets, parking spaces etc.
4. That the present petition is being filed by the Petitioner urging
this Hon‘ble Court to allow the Hindus to rebuild the Rama
Temple at the Ramjanambhoomi site in Ayodhya as the report
of the ASI has clearly stated that there existed the Lord Rama
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Temple on the site before the same was demolished by Babar‘s
commander Mir Baqi.
5. That being a devout Hindu, the Petitioner has visited the Ram
JanmaBhoomi on numerous occasions. As Union Cabinet
Minister for Law and Justice in 1990-1991, he had participated
in deliberations for finding an amicable solution to the
controversial Babri Masjid issue and has a knowledge of the
contentious matter. However, during the tenure of the
successor government the Babri Masjid was destroyed by a
mob on 6/12/1992.
6. That there were numerous cases filed before the High Court of
Allahabad which were decided by one common judgment dated
30/09/2010. In the said judgment, the land subject matter of the
proceedings was partitioned into three parts – one portion to the
Ramlala Temple, one to the NirmohiAkhara& One to the Sunni
Wakf Board. The parties to the suit are in appeal before this
Hon‘ble Court and the matters are still pending.
7. That this Hon‘ble Court while admitting these appeals,
expressed its anguish on the judgment of the Lucknow Bench
of the High Court of Allahabad as there was no prayer by any
party before the High Court for partition of the suit property.
This Hon‘ble Court while issuing notice on the
Appeals,ordered status quo order as per the 1994 judgment
passed in the case of Dr. M. Ismail Farooqui. v. Union of India
&Ors reported at (1994) 6 SCC 394. That vide this judgment
puja at the disputed site has been permitted in a restricted form
by this Hon‘ble Cour t. It was directed in the said judgment that:
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“However, confining the exercise of the right of worship of the
Hindu community to its reduced form within the disputed area
as on 7-1-1993, lesser than that exercised till the demolition on
6-12-1992, by the freeze enacted in Section 7(2) {of Act No.33
of 1933} appears to be reasonable and just in view of the fact
that miscreants who demolished the mosque are suspected to be
persons professing to practice Hindu religion. The Hindu
community must, therefore, bear the cross on its chest for the
misdeed of miscreants reasonably suspected to belong to their
religious fold”.
8. That the Petitioner is aggrieved by the said direction of this
Hon‘ble Court whereby there exists today a restricted form of
worship, restricted in the name of security and status quo
imposed on devotees to perform the worship especially in the
view of the fact that the ASI has clearly stated in its report that
the Lord Rama Temple existed on the site prior to the Babri
Masjid.
9. That the Learned Solicitor general, on 14/09/1994 in the
aforestated case submitted before this Hon‘ble Court the
Central Government‘s commitment through an affidavit stating
that “………if the question referred is answered in the
affirmative, namely that a Hindu temple/structure did exist
prior to the construction of the demolished structure,
government action will be in support of the wishes of the Hindu
community. If on the other hand, the question is answered in
the negative, namely that no such Hindu temple/structure
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existed at the relevant time, then government action will be in
sup port of the wishes of the Muslim community….”
10. That it is conclusive now that there existed a Hindu temple on
the disputed site. The Hon‘ble High Court ordered a Ground
Penetrating Raar and Geo-radiology survey and when the
Ground Penetrating Radar detected what archeologist‘s term as
―Anomaly alignments‖, the Hon‘ble High Court directed the
ASI to excavate the site and permitted the parties to the dispute
to watch the excavation. The ASI carried out excavations from
12th
March to 7th
August 2003. It excavated 90 trenches in five
months and submitted its report. The last para of Summary of
Results submitted by the ASI before the Lucknow Bench of the
Hon‘ble High Court of Allahabad,mentions discovery of a
―massivestructurejustbelowtheDisputedStructure with
continuity of structural phases from 10th
Century up to
construction of disputed structure along with the yield of stone
and decorated bricks as well as mutilated sculpture of Divine
Couple, and carved architectural members including foliage
patterns, amalak, kapotpali doorjamb with semi-circular
pilaster, broken octagonal shaft of black schist pil lar , lotus
motif, Circular Shrine having pranala (waterchute) in the
north, fi fty pi ll ar bases in association with the huge structure
are indicative of remains which aredistinctivefeatures found
associated with the temples of North I ndia ‖.
11. That the Hon‘be High Court also examined the entire evidence
and gave its majority findings as under:
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a. Both Ram Janmasthan(also called Ram Janmabhumi) and
Bhagwan Shree Ramlala Presiding over it (Virajman) are
Hindu Deities/Juristic Persons worshipped by Hindus since
time immemorial.
b. A Hindu Temple existed at Ram Janmasthan which was
demolished and Babri Masjid was erected at the site of the
Temple.
c.
The exact ‗place of birth‘ of Lord Ram was the site of Central
Dome of the erstwhile Masjid, and would alone be known as
Ram Janmasthan or Ram Janmabhumi
d. The Masjid was illegal, erected contrary to Islamic tenets; it
could not even be a Mosque by User.
12. That as there exists conclusive evidence of there being a Ram
Temple on the disputed site, the Petitioner wants to draw the
attention of this Hon‘ble Court that the Union Government is
bound bythe commitment made before this Hon‘ble Court in
the Farooqui case on 14/09/1994 (as stated in para 10 above).
13. That the Petitioner wants to point out the significance of the
rebuilding of the Lord Rama Temple on the site as is evident
from our various religious texts:
a. True and devout Hindus believe that Bhagvan Sri Rama was
born in Ayodhya, the then capital of a flourishing kingdom of
the Suryavansha dynasty. Lord Rama is venerated as Maryada
Pumshottam, and worshipped by Hindus of the north.
b. As an avatar of Vishnu, while it was first propagated by the
Tamil saints known as Nayanmars and Alwars who composed
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many hymns and songs dedicated to his divinity, the North
which later came to accept Rama as one, especially thanks to
the saint Tulsidas, the fervour for Rama worship is much more.
In that sense, Sri Rama was the first truly national king of India,
supra region, supra vama or jati. That is why poet Iqbal called
him 'lmam-e-Hind‘
c. The exact spot of the palace where Rama was born has been
and remains firmly identified in the Hindu mind and is held as
sacred. This is the very area where stood from 1528 till
December 6, 1992 a structure that came to be known as Babri
Masjid, put up in 1528 by Babar‘s commander Mir Baqi.
d. In fact, Baqi was a Shia Muslim, and hence he intended it to be
a place for Shias to read namaz. Today, interestingly, it is the
Sunni Wakf Board, which entered the legal dispute as late as
1961, which has been litigating in the court claiming the title to
the land on which the structure once stood.I call it a "structure"
since it cannot be strictly called a mosque by Sunni
edictsbecause it did not have the mandatory minarets and wasu
[water pool].
e. That a Ram temple existed and or that there is a sacred spot
known as Ramjanmabhoomi is attested by many ancient
sources and by modern scientific methods.In SkandaPurana
[Chapter X, VaishnavKhand] the site is vividly described.
Valmiki Ramayana also describes it beautifully. Less than two
decades before Mir Baqi carried out the demolition of the Ram
Temple, Guru Nanak had visited the Ramjanmabhoomi and had
darshan of Ramlala in the mandir at the spot.
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f. That there are many commentaries on this visit which are a part
of the Sikh scriptures. Guru Nanak himself records the
barbarity of Babar's invasions [in Guru Granth Sahib at p.418].
In Akbar‘s time, AbulFazal wrote the Ain-i-Akbari in which he
describes Ayodhya fame as the place of "Ram Chandra‘s
residence which in Treta age combined spiritual supremacy and
Kingship" [Tranlated by Col. H.S. Jarrett and published in
Kolkata in 1891].
g. That in Chapter X of the Report of the Archaeological Survey
of India, NW and Oudh (1889), it is mentioned (p.67) that
Babri Mosque ―was built in AD 1528 by Mir Khan on the very
spot where the old temple of Janmasthan of Ram Chandra was
standing."
h. Hindus throughout foreign occupation of India have deeply
held as sacred that exact spot where the Babri Masjid once
stood, as is recorded in many official and judicial proceedings.
In 1885, for example, MahantRaghubar 035 in 3 Suit No
61/280 of 1885 filed in the Court of the Faizabad Sub-Judge
against the Secretary of State for India (who was based in
London), prayed for permission to build a temple on the
chabutra outside the mosque. His suit was dismissed on March
18, 1886.However, in his Order the Sub-Judge, an Englishman,
stated thus: ―It is most unfortunate that a Masjid should have
been built on land specially held sacred by the Hindus. But as
the event occurred 358 years ago, it is too late now to remedy
the grievance.‖ Since the English as policy never sought to
disturb the social status quo in India as evidenced, for example,
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on the ‗Sati' question, the Judge took the easy way out and
dismissed the Suit.
i. That it is now well established by GPRS- directed excavations
done under the Allahabad High court monitoring and
verification in 2002-03, that a large temple did exist below
where that Babri Masjid structure once stood. Inscriptions
found during excavations describe it as a temple of Vishnu l-
lari who had killed the demon king Dasanan [Ravana].
14. That it is important to also carve out the differences in the
establishment of a Temple vis-à-vis the construction of a
Masjid (or Mosque). The fundamental question before us is -
Can a temple and a Masjid be considered on par as far as
sacredness is concerned? Relying on important court judgments
that hold the field today and news from Islamic countries, the
answer is: No. A Masjid is not an essential part of Islam:
a. In the case of Ismail Farooqui vs Union of India case[reported
in (1994) 6 SCC 376], this Hon‘ble Court observed: "It has
been contended that a mosque enjoys a particular position in
Muslim law and once a mosque is established and prayers are
offered in such a mosque, the same remains for all time to
come a property of Allah...and any person professing Islamic
faith can offer prayer in such a mosque, and even if the
structure is demolished, the place remains the same where
namaz can be offered‖ [para 80].The Constitution Bench
rebutted this contention stating: "The correct position may be
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summarized thus: Under Mohammed law applicable in India,
the title to a mosque can be lost by adverse possession...A
mosque is not an essential part of the practice of the religion of
lslam and namaz (prayer) can be offered anywhere, even in the
open. Accordingly, its acquisition is not prohibited by the
provisions in the Constitution of India."[para 82].
b. Thus, any Government depriving the Muslims of the Babri
Masjid by an order of acquisition is within law, if the
government decides to do so in the interest of public order,
public health and morality.
c. The position in Islamic law is even clearer:-In Saudi Arabia the
authorities demolish mosque to lay roads and build apartment
building. Even the mosque where Islam's Prophet Mohammed
used to pray was demolished.If a waqf falls into disrepair and is
no longer of any benefit, such as if a house collapses and it is
not possible to rebuild it, or the people of the village move
away from a mosque so people no longer pray in the mosque,
or it has become too small for the congregation and it is not
possible to expand it where it is, or if its walls have developed
cracks and it is not possible to repair them or part of them
except by selling part of it, then it is permissible to sell part of it
in order to repair the rest of it. If it is not possible to benefit
from any part of it, it is permissible to sell the whole of it and
use the money to build another mosque.
d. That three of the world‘s oldest mosques are about to be
destroyed as Saudi Arabia embarks on a multi-billion-pound
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expansion of Islam‘s second holiest site. Work on the Masjid
an-Nabawi in Medina, where the Prophet Mohamed is buried,
will when complete, the development will turn the mosque into
the world‘s largest building, with the capacity for 1.6 million
worshippers. Most of the expansion of Masjid an-Nabawi will
take place to the west of the existing mosque, which holds the
tombs of Islam‘s founder and two of his closest companions,
Abu Bakr and Umar.
e. In Mecca, the Masjid al-Haram, the holiest site in Islam and a
place where all Muslims are supposed to be equal, is now
overshadowed by the Jabal Omar complex, a development of
skyscraper apartments, hotels and an enormous clock tower. To
build it, the Saudi authorities destroyed the Ottoman era Ajyad
Fortress and the hill it stood on. Other historic sites lost include
the Prophet‘s birthplace – now a library – and the house of his
first wife, Khadijah, which was replaced with a public toilet
block.
f. Until recently out of the seven ancient mosques built to
commemorate the Battle of the Trench – a key moment in the
development of Islam – only two remain. Ten years ago, a
mosque which belonged to the Prophet‘s grandson was
dynamited. Pictures of the demolition that were secretly taken
and smuggled out of the kingdom showed the religious police
celebrating as the building collapsed.
g. In most of the Muslim world, shrines have been built. Visits to
graves are also commonplace. But Wahabism views such
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practices with disdain. The religious police go to enormous
lengths to discourage people from praying at or visiting places
closely connected to the time of the Prophet while powerful
clerics work behind the scenes to promote the destruction of
historic sites.
h. A pamphlet published in 2007 by the Ministry of Islamic
Affairs – and endorsed by the Grand Mufti of Saudi Arabia,
Abdulaziz al Sheikh – called for the dome to be demolished and
the graves of Mohamed, Abu Bakr and Umar to be flattened.
Sheikh Ibn al-Uthaymeen, one of the 20th century‘s most
prolific Wahabi scholars, made similar demands.
i. But then what of a temple? Is it in the same category as the
mosque in our jurisprudence? This question of the status of a
temple-even if in ruins or without worship--had come up before
the British Courts in a case of a smuggled-out bronze Nataraja
statue which was up for auction in London. The Government of
India had decided to file a case in the London trial court in
1986 for recovery. The Nataraja statue had by then been traced
to a temple in ruins in Pathur, in Thanjavur district. A farmer
named Ramamoorthi had in 1976 accidently unearthed it while
digging mud with a spade near his hut.When the news spread,
touts of an antique dealer by name Ahmed Hussein reached him
and paid a small sum and smuggled it out to London, where in
1982 they sold it to Bumper Development Corporation Private
Limited. In turn the said Corporation sent it to the British
Museum for appraisal and possible purchase. By then the
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Government of India was onto it and asked the UK government
to take action.
j. The Nataraja idol was seized by London Metropolitan Police,
and thus the Bumper Development Corporation sued the Police
in court for recovery but lost the case. An appeal was filed in
the Queen‘s Bench [i.e., our High Court level] which was
dismissed on April, 17 1989. So, the Bumper Corporation went
to the House of Lords [our Supreme Court level]. On February
13, 1991 when the Petitioner was the Law Minister, the
judgment came, which is truly landmark, dismissing Bumper‘s
final appeal [(1991) 4 All ER 638].
k. The House of Lords upheld the Indian Government‘s position
that because of the PranPratishtha puja, a temple is owned by
the deity, in this case Lord Shiva, and any Hindu can litigate on
behalf of the deity as a defacto trustee. The Bench concluded:
―We therefore hold that the temple is acceptable as party to
these proceedings and that it is as such entitled to sue for the
recovery of the Nataraja.‖ [Page 648 para g].
l. Thus, even if a temple is in ruins as the ASI had found the
Thanjavur temple or destroyed, as Ram Temple was in the
Babri Masjid area, any Hindu can sue on behalf of Lord Rama
in court for recovery of possession. No such ruling exists for a
mosque for the simple reason that a mosque is just a facilitation
centre for reading namaz, and has no essentiality for Islam
religion. It can be demolished and/or shifted as any building
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can and are being so today in Arab countries and other Islamic
countires.
m. That is, the Ram Temple on Ram Janmabhoomi has an
overriding claim to the site than any mosque. This is the
fundamental truth in the Ayodhya dispute.
15. That in view of the averments made herein above, the
Petitioner seeks the benevolence of this Hon‘ble Court in
enforcement of his (and other Hindus) fundamental rights as
guaranteed under the Constitution of India and permit the
rebuilding of the Lord Rama Temple on the Ramjanambhoomi
in Ayodhya, State of U.P., on the following Grounds:
GROUNDS:
A. BECAUSE Article 25 of the Constitution of India grants
fundamental right to freely profess, practice and propagate
religion subject to public order. The restrictions on the right of
Hindus to freely profess, practice and propagate grants the
Petitioner, a devout Hindu, a right under Article 32 of the
Constitution of India to seek enforcement of the fundamental
rights.
B. BECAUSE the confining of the exercise of right to worship of
the Hindus is a restriction imposed not on account of public
order but on account of status quo order of this Hon‘ble Court
in terms of the judgment dated 14/09/1994 in Dr. M. Ismail
Farooqui. v. Union of India &Ors reported at (1994) 6 SCC
394.
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C. BECAUSE the appeals against the Judgment dated 30/09/2010
of the Allahabad High Court (Lucknow Bench) has been
pending since 2011 wherein the Status Quo order as per the
Farooqui case has been extended. The delay in adjudication of
the matter before this Hon‘ble Court is affecting the
fundamental right of the persons belonging to the Hindu
religion.
D.
BECAUSE the restriction that reduces and prevents the persons
of the Hindu religion to practice, profess and propagate this
religion is not by an act of parliament/legislature but on account
of a judicial order which is pending adjudication.
E. BECAUSE the non-adjudication and delay in determining the
correctness of the judicial order is affecting the fundamental
rights of the Petitioner and thus the Petitioner has a right under
Article 32 to seek enforcement of such rights.
F. BECAUSE the issuance of directions by this Hon‘ble Court is
necessary to expedite the adjudication of the correctness of the
impugned judgment of the Allahabad High Court.
G. BECAUSE this Hon‘ble Court has in recognition of the
importance for expeditious disposal of matters of greater public
importance expedited adjudication of pending cases by not only
taking them up immediately but hearing them on a day to day
basis but also directing other courts for expeditious disposal.
H. BECAUSE the fundamental rights of 80% of the Indian
population belonging to the Hindu religion is by itself a matter
of greater public importance than many other cases of financial
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and economic importance which have been otherwise granted
expeditious hearing.
I. BECAUSE the denial of expeditious hearing as prayed for by
the Petitioner would result in denial of the rights granted by the
Constitution itself and that too by the pillar of democracy
enshrined with the responsibility and duty to mandate
enforcement of such rights.
J.
BECAUSE it is now well established by GPRS- directed
excavations done under the Allahabad High court monitoring
and verification in 2002-03, that a large temple did exist below
where that Babri Masjid structure once stood.
K. BECAUSE the continuation of the restricted form of puja is
violative of rights of the Petitioner and other Hindu devotees
under Article 25 of the Constitution of India.
L. BECAUSE it is conclusive now that there existed a Hindu
temple on the disputed site. Thus, the Petitioner wants to draw
the attention of this Hon‘ble Court that the Union Government
is bound by the commitment made before this Hon‘ble Court in
the Farooqui case on 14/09/1994.
M. BECAUSE any Government depriving the Muslims of the
Babri Masjid by an order of acquisition is within law, if the
government decides to do so in the interest of public order,
public health and morality.
N. BECAUSE as per muslim law the mutawalli is authorized to
sell/alienate the Masjid when it falls into disrepair and is no
longer of any benefit, such as if a house collapses and it is not
possible to rebuild it, or the people of the village move away
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from a mosque so people no longer pray in the mosque, or it
has become too small for the congregation and it is not possible
to expand it where it is, or if its walls have developed cracks
and it is not possible to repair them or part of them except by
selling part of it, then it is permissible to sell part of it in order
to repair the rest of it. If it is not possible to benefit from any
part of it, it is permissible to sell the whole of it and use the
money to build another mosque.Thus, a mosque is just a
facilitation centre for reading namaz, and has no essentiality for
Islam religion. It can be demolished and/or shifted as any
building can and are being so today in Arab countries and other
Islamic countries.
O.
BECAUSE three of the world‘s oldest mosques are about to be
destroyed as Saudi Arabia embarks on a multi-billion-pound
expansion of Islam‘s second holiest site. Work on the Masjid
an-Nabawi in Medina, where the Prophet Mohamed is buried,
will when complete, the development will turn the mosque into
the world‘s largest building, with the capacity for 1.6 million
worshippers. Most of the expansion of Masjid an-Nabawi will
take place to the west of the existing mosque, which holds the
tombs of Islam‘s founder and two of his closest companions,
Abu Bakr and Umar.
P. BECAUSE unlike Masjids the Hindu temple is owned by the
deity after the PranPrathistha Puja and thus any Hindu can
litigate on behalf of the deity as a defacto trustee.
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16. That the Petitioner has not filed any writ petition in any other
court or any other petition of similar nature in any court of law,
other than the present petition before this Hon‘ble Court.
17. That the present petition under Article 32 of the Constitution of
India is the appropriate remedy and no other equally efficacious
remedy is available to the Petitioner given the far reaching
public interest and Hindu sentiments for the entire country.
This Hon‘ble Court is duty bound as the guardian of the
Constitution to expedite the adjudication and disposal of the
Ram Janmabhoomi matter and in recognition of the larger
public importance hear the matter on day to day basis in
furtherance of social justice. Hence, the present writ petition
under Article 32of the Constitution of India is being filed
before this Hon‘ble Court for its kind consideration.
PRAYER
In view of the submissions made herein above, the Petitioner
most humbly prays this Hon‘ble Court to:
(a) Pass a writ of mandamus for enforcement of the fundamental
rights of the Petitioner and other persons belonging to the
Hindu Religion under Article 26 of the Constitution of India by
allowing the rebuilding and maintenance of the Lord Rama
temple at the Ramjanambhoomi site at Ayodhya;
(b) Pass a direction to expedite the adjudication of the Civil
Appeals pending before this Hon‘ble Court numbered as Civil
Appeals 10866-67/2010 as the status quo Order dated
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9/05/2011 is infringing on the fundamental rights of the
Petitioner and other Hindus;
(c) Pass a direction or order for enforcement of fundamental rights
guaranteed under Article 21 of the Constitution of India
whereby protection of the right to life includes the right,
freedom and liberty of the Petitioner and other devout Hindus
to have free and unrestricted access to place of their worship;
(d)
Pass a direction or Order for enforcing the rights accumulated
to the Petitioner and other persons of Hindu religion under
Article 25 of the Constitution of India pursuant to the report of
the ASI for rebuilding of the Lord Rama Temple at the
Ramjanambhoomi site situated at Ayodhya;
(e)
Pass such other or further order/orders as this Hon‘ble Court
may deem fit and proper in the facts and circumstances of the
case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER
SHALL, AS IN DUTY BOUND, EVER PRAY.
Dr. Subramanian Swamy
Petitioner – In – Person
New Delhi:
Filed on:
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IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION(CIVIL) NO:________ OF 2016
(A PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA)
DR. SUBRAMANIAN SWAMY …...PETITIONER
VERSUS
UNION OF INDIA & ANR .....RESPONDENT
AFFIDAVIT
I, Dr. Subramanian Swamy, aged 76 years, S/O Mr. Sitarama
Subramanian, R/O A-77, Nizamuddin East, New Delhi 110013, do
hereby solemnly affirm and declare as under:
1. That I am the Petitioner in the aforesaid matter and being
acquainted with the facts and circumstances of the case, I am
competent to depose about the same and file this affidavit.
2. That the accompanying list of dates from pages to , Writ
Petition from pages to and I.A from pages to has
been drafted under my instructions. The facts stated therein are
true and correct to my knowledge and belief.
3. That the annexures filed are true copies of their respectiveoriginals.
Deponent
VERIFICATION:
Verified at New Delhi on this the _____ day of February, 2016 that
the contents of my aforesaid affidavit are true and correct to my
knowledge and nothing has been concealed there from.
Deponent
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IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
I.A NO. OF 2016
INWRIT PETITION(CIVIL) NO:________ OF 2016
(A PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA)
IN THE MATTER OF:
DR. SUBRAMANIAN SWAMY …...PETITIONER
VERSUS
UNION OF INDIA & ANR .....RESPONDENT
APPLICATION FOR THE PERMISSION TO APPEAR AND
ARGUE THE MATTER IN-PERSON
To,
The Hon‘ble Chief Justice of India
And His Companion Judges of the
Supreme Court of India
at New Delhi
The humble application of the petitioner above named
MOST RESPECTFULLY SHOWETH:
1. The present writ petition is being filed under Article 32 of the
Constitution of India , seeks to enforce the Fundamental Rights
guaranteed under Article 25 & Article 21 of the Indian
Constitution to the Petitioner as well as to other persons
belonging to the Hindu religion to allow the Hindus to rebuild
the Rama Temple at the Ram Janmabhoomi site in Ayodhya,
State of U.P.
2. That it is most respectfully submitted that Petitioner wish to
appear in-person because the petitioner as an aggrieved person
knows the facts of the matter. As such the permission to appear
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and argue the matter in person may be granted to the petitioner
in the interest of justice.
3. That the Petitioner is a renowned economist, former Cabinet
Minister and a public figure deeply immersed in rooting out
corruption and abuse of power in high places and have been
involved previously in number of Public Interest Litigations.
Hence, the petitioner does not need service of an advocate even
if the Hon‘ble Court appoints Advocate on his behalf.
4. If the permission prayed for is not granted then the petitioner
shall suffer irreparable loss and injury.
PRAYER
In the premises mentioned above, it is most respectfully prayed
that this Hon‘ble Court may be pleased to:
(a) Allow the present application and permit the Petitioner to
appear and argue the matter in-person; and
(b) pass such other and further orders as this Hon‘ble Court deem
just and proper in the facts and circumstances of the case.
FILED BY:
(DR SUBRAMANIAN SWAMY)
Dated: PETITIONER-IN-PERSON
.