The Legalese Behind the Gyanvapi Mosque

The Supreme Court (SC) has raised eyebrows by giving approval for a Archeological Survey of India (ASI) survey of Gyanvapi mosque in Varanasi, in order to ascertain whether the over 600-year-old mosque was built over the ruins of a Hindu temple, which was demolished by Mughal emperor Aurangzeb.

The SC order has come as a surprise to many stakeholders, more so as the apex court had stayed the Allahabad high court order to the same effect barely days ago. And the nod now has come with no new material being placed before it.

The Supreme Court is also looking into petitions challenging the constitutional validity of the Places of Worship Act, 1991, which was enacted by the Narasimha Rao government in the wake of Babri masjid demolition in order to forestall Ayodhya-like catastrophic events.

The Act specifically excluded Ayodhya from its ambit and mandated that the religious character of all other religious places should be maintained as on August 15, 1947. Once India became independent, the country decided to embrace the history of invaders and demolitions and move on to build a new modern, progressive, self-reliant and inclusive India, which could hold its own proudly in a world divided by “ isms.”

A brief glimpse of recent developments. In 2021 a fast track court in Varanasi had ordered the Archaeological Survey of India to conduct a comprehensive survey of the Kashi Vishwanath Temple-Gyanvapi mosque complex in Varanasi, to find out whether a Hindu temple was demolished there to build the mosque which stands today adjacent to the temple.

The order came on April 8, 2021, on a petition by Vijay Shankar Rastogi. He had contended that the Gyanvapi Mosque was built upon the ruins of an ancient Shiva temple in 1664 after Mughal emperor Aurangzeb demolished the temple.

Rastogi had contended that the ruins of the ancient temple were used to build the mosque and some remains of the old temple can still be seen adjacent to the mosque. He had pleaded that the entire Gyanvapi mosque complex was thus built over the ruins of an ancient Hindu temple which should now be handed over to the Hindu community.

The Allahabad High Court Bench of Justice Prakash Padia, however, on September 9, 2021, put a stay on the Varanasi civil court order saying the matter was already pending for consideration before it so the lower court should have refrained from passing such order. The plea for ASI survey rested there.

But in the meantime, in August same year five Hindu women, Rakhi Singh, Sita Sahu, Manju Vyas, Laxmi Devi and Rekha Pathak petitioned the Varanasi civil court pleading that they be allowed to offer puja to the Shringaar Gauri shrine located on the outer western wall of the mosque on a daily basis.

They also pleaded that they be allowed to offer daily worship to all other visible and invisible deities present inside the mosque building.

Passing the order on this petition Varanasi civil judge, Ravi Kumar Diwakar, on April 26, 2022 ordered a survey and videography in the mosque complex, under supervision of a court appointed commissioner Ajay Kumar Mishra.

The survey was conducted on May 6-7, 2022. But when the court appointed team tried to enter the mosque building they were prevented from doing so by members of the mosque management committee. The mosque management committee approached the court demanding to change the court commissioner.

This plea was, however, rejected by the Varanasi civil court which ordered on May 12, 2022 that a comprehensive survey and videography be conducted inside the mosque too and all should cooperate. This survey and videography has now been completed and the report is with the Varanasi civil court. The matter is pending.

This entire exercise had, however, resulted in another controversy. Leaked reports suggested that a shivalinga has been found in the mosque complex, which the mosque claimed was a fountain which was used as ‘wazukhana’ by Muslims. The Supreme Court in May last year, sealed this area, pending further studies. The petition for worship at Shringaar Gauri filed by the five women is still pending before the Varanasi court.

In August last year, the same women, except Rakhi Singh, approached the Varanasi civil court again, demanding the ASI survey of Gyanvapi mosque. On July 21, 2023, the Varanasi court ordered the ASI survey which began on July 22, 2023, but the Muslim side got a stay order from the Allahabad High Court again on any survey and the order was stayed till August 3.

The Allahabad High Court, however, gave a nod for the survey on August 3, 2023, and the Supreme Court refused to stay this order. On August 4, 2023, a 41-member ASI team , led by Prof Alok Tripathi, additional director general, started the scientific survey which would include differential GPS (DGPS) mapping, imaging , photography and videography.

The SC has directed the ASI team to not conduct any “ intrusive act” during the survey, meaning no digging or scrapping any structure. The shivalinga/fountain has been kept out of the ambit of this survey.

Chief Justice of India D. Y. Chandrachud himself was part of this Bench which also had Justice J. B. Pardiwala and Justice Manoj Mishra on the Bench. The CJI is at the same time listening to petitions challenging the constitutional validity of the Places of Worship Act 1991, which have been filed by BJP leader and advocate Ashwani Upadhyaya and former BJP MP, Subramanian Swamy.

Swamy has actually pleaded for only reading down some sections in the act, not challenging its constitutional validity on the whole.

The Places of Worship Act prohibits conversion of any place of worship and aims to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947. Sections 3 and 4 of the Act declared that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947.

The Act is categorical that no person shall convert any place of worship of any religious denomination into one of a different denomination or section. Section 4(2) of the act says that all suits, appeals or others regarding converting the character of a place of worship, that was pending on August 15, 1947, will stand abated when the Act commences and no fresh proceedings can be filed.

This Act had, however, excluded Ayodhya, where furious litigation was already going on when it was legislated in 1991. The predominance of this act was, however, once again reiterated by the then CJI Raman Gogoi while delivering the Ayodhya verdict in November 2019.

The top court had in its Ayodhya judgement made an exception by allotting the entire land at the disputed Ramjanmabhoomi-Babri Masjid site to contesting Hindu outfits but had said that this law would hold in the future.

The Bench had hoped that it would cap such demands to reopen the ownership issue of Hindu-Muslim structures which co-exist at Kashi and Mathura.

With such clear orders by this constitution Bench about not entertaining any such pleas with regard to Kashi and Mathura, it is significant that the present chief justice of India should entertain such petitions now.

For the last two years, the GOI has only been seeking more time from the court. The last such request from the GOI was on July 11, 2023, when solicitor general Tushar Mehta pleaded for the nth time that the government needed more time to make up its mind about the law. This Bench, besides the CJI, also has Justice P S Narasimha and Justice Manoj Mishra and the case will now come up for hearing on October 31, 2023.

But even as the ASI survey continues, it has to submit the report by September 2, 2023, the clamour by right wing organisations has begun, with the sant samaj also joining in. “ It is already clear that the temple remains are there inside the mosque. Once the report comes out, no court can deny us the control,” said Sudhir Singh, president of Kashi Vishwanath Mukti Andolan, who has been running a social awareness and religious campaign for liberation of the mosque in Varanasi.

The Muslim side, which has joined the survey after the SC nod, is apprehensive about the outcome. “I shudder to think what will happen, I can't even imagine the consequences, " said S M Yasin, secretary of Anjuman Intezamia Masajid, managing committee of Gyanvapi mosque.

The All India Muslim Personal Law Board too has described the SC order as unfortunate. It said in a statement that while the sectarian forces have launched an onslaught on places of worship of Muslims across the country, the courts, in recent judgements relating to Gyanvapi and other mosques, have disappointed the minorities.

The Board statement also said that while sectarian forces were bent upon hate mongering and vitiating the atmosphere in the country, the Central and state governments’ silence on the issue is disconcerting. It called upon the central government to clarify its stand on the Places of Worship Act 1991 since the recent court orders have been in violation of this act.

UP CM Adityanath has said in an interview to ANI that he will be bound to implement the court orders as and when it comes.