‘Bhojshala-Kamal Maula Mosque dispute is civil in nature’

Indore: Senior advocate Shobha Menon told the Indore bench of Madhya Pradesh High Court on Tuesday that Bhojshala-Kamal Maula Mosque dispute is civil in nature and cannot be adjudicated under Article 226 through a writ.

She was appearing before the bench of Justice Vijay Kumar Shukla and Justice Alok Awasthi, representing Muneer Ahmed and Farooque Mohd in an intervening application and Qazi Zajullah in a writ appeal.





Menon contended that the petitioners — Hindu Front for Justice and others — are projecting personal and sectarian claims as public interest by asserting exclusive worship rights at the disputed complex, and in fact, raising questions of title and ownership.

Menon referred to petitioners' stress on fundamental rights while making their pleas before the court. Article 21 has been expansively interpreted to include cultural and heritage concerns, relief under it must be grounded in a direct and tangible threat to life or liberty. The present case, she argued, fails to meet that threshold and instead advances claims confined to a particular community.

She said under Article 25, religious freedom is available to ‘all persons' and is subject to public order, morality, and health. She warned that interpreting the article for exclusive rights of worship for a particular group at the disputed site would upset constitutional balance.

Drawing on the Ayodhya judgment, Menon challenged the evidentiary weight of books, research papers, gazetteers, travelogues, and archaeological opinions placed before the court by the petitioners, arguing these cannot substitute for proof. Questions of title, she said, cannot rest on faith, belief, or historical narratives alone, and must be determined through evidence tested at trial. Opinions of authors, however eminent, must similarly be tested in accordance with law before being accorded evidentiary value, and the court should not draw conclusions from historical or literary sources without cross-examined material.

Menon also referred to a gazette notification of the erstwhile Dhar state from 1935, which she said explicitly recognised the disputed site as a mosque and permitted its continued use.

Her central submission, she stated, was that the dispute involves contested questions of title, religious character, and historical fact — all requiring adjudication through evidence before a competent civil forum.

"This case involves disputed questions of fact and law, which require proper examination and adjudication by a competent civil court, as contemplated under Section 9 of the Code of Civil Procedure," she said.

She concluded her argument by referring to a quote by Swami Vivekananda and said, "All religions stand for tolerance and righteousness. This case, therefore, should not be seen as a dispute between two religious communities, but as a question of what is lawful and what is unlawful under the Constitution of India."

The court will hear the arguments by the Archaeological Survey of India on Wednesday.
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