The deity has survived for last 800 years: Delhi court reserves order in Qutub Minar case

Saket District Court
Image Courtesy:indiatoday.in

On May 24, 2022, the Saket District Court in Delhi reserved its order on the appeal challenging the order passed by the Civil Judge dismissing the suit alleging that the Quwwat-Ul-Islam Masjid situated within Qutub Minar complex was built in place of a temple complex comprising as many as 27 temples and seeking restoration of the same.

Additional District Judge Nikhil Chopra reserved the judgement to be pronounced on June 9.

The original suit had been filed on behalf of Jain deity Tirthankar Lord Rishabh Dev and Hindu deity Lord Vishnu. Noting that the suit was barred by the provisions of the Places of Worship Act 1991, Civil Judge Neha Sharma dismissed the suit under Order 7 Rule 11(a) of Civil Procedure Code for non-disclosure of cause of action.

Right to worship

As Hari Shankar Jain (being one of the appellants himself) appearing on behalf of all appellants demanded why couldn’t the temples be restored, the court reportedly asked, “What is the legal right that entitles you restoration? Let’s assume it was demolished, admission that it was not being used by Muslims for 800 years. Question is now how can it be restored- on what basis? Down south you’ll find many monuments which are not being used. Prayers offered. Now you want the monument to be turned into a temple. My question is how can you claim a legal right for restoration for something which happened 800 years ago?”

Referring to Section 16 of Ancient Monuments and Archaeological Sites and Remains Act, Jain reportedly asked, “If it was a Hindu temple why can’t it be used for that purpose?” To this the Court pointed out that character is lost. However, Jain reportedly contended, “Once a deity property, always deity property. It is never lost. After demolition, temple won’t lose divinity, sanctity. There are idols. There’s an iron pillar which is 1,600 years old. It is in the midst of the monument. Sanskrit shlokas are inscribed there. Lordship may consider that deity is never lost. If deity survives, right to worship survives.”

Interestingly, the court reportedly remarked, “On a light side, the deity has survived for last 800 years. Let it survive! Let’s come to remedy. You want a right to worship. Is it a statutory right or a constitutional right? Despite existence of idol, there are directions in place already not to remove them. Question is right to worship. What is the backing of this right? We have very limited question whether there’s any denial of legal right to appellant.”

Jain argued that there is a denial of constitutional right as he referred to Article 13 (Laws inconsistent with or in derogation of the fundamental rights) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion) of the Constitution. The Court demanded Jain to support his contention that ‘right to worship is a fundamental right’ with case laws. Jain claimed that in the Ayodhya judgment, the right to worship survived and that it is never lost. However, the Court corrected him stating that the judgment only upheld public order rather right to worship. The Court noted that Section 3 of the Places of Worship (Special Provisions) Act, 1991 states that status quo is to be maintained and demands Jain to show the anomaly in the judgment.

Impugned order by the Civil Judge

As reported by LiveLaw, the Court suggested that the impugned order of the Civil Judge seems to have made findings on the point that granting of relief to the plaintiffs may upset or be in violation of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act). According to the Court, Section 16 of the AMASR Act seems to be on the same principle as Section 3 of Places of Worship Act, which bars conversion of places of worship.

However, Jain disagreed with this and argued that Section 16 of AMASR Act is a deviation from the provision of Section 3 of the Places of Worship Act. He reportedly stated, “Every monument governed by Monument Act is exempted from application of Places of Worship Act. Nobody can dispute this. My test is on exclusion. When the Act exempts the application of Places of Worship Act, how the suit is dismissed on this basis?”

Archaeological Survey of India

Counsel for ASI, Advocate Shubhash Gupta submitted that there are no grounds for interfering with the judgment of the lower court as the monument comes under the purview of the AMASR Act 1958 and therefore character once frozen in the monument can’t be changed.

He admitted that fundamental right exists, but he stated that they are not absolute. Accordingly, he informed the court that even though the mosque was built on remains of the temple that does not mean that the materials were retrieved by demolishing temples. It stated that it is not clear if they were retrieved from the site or brought from outside. He concluded by denying that the Qutub Minar is a place of worship.

Places of Worship Act

Regarding the Places of Worship Act, 1991, the lower court had held that the suit was barred by the provisions of the Act but the appellants contended that Section 4(3)(a) of the Act excluded an ancient and historical monument or an archaeological site from its purview.

The Court reportedly said, “You (ASI) say it’s a monument without worship and as such it should continue like that. They (Appellants) say it’s a temple, pre-existing and suppose this is a situation, fact v. fact, can it be decided under Order 7 Rule 11?”

Original Suit

A suit had been filed at Saket Court, Delhi to restore 27 Hindu and Jain temples in Qutub Minar complex. The plaintiffs, which included Lord Vishnu and Tirthankar Rishabh Dev, apart from humans, claimed that these temples were dismantled, desecrated and damaged under the command and orders of Qutub-Din-Aibak, a commander of invader Mohammad Gauri, who established “slave dynasty” and to show the ‘Might of Islam’, raised some construction at the same very place of temples naming it as, ‘Quwwat-Ul-Islam Mosque’.

The plaintiffs claimed that the walls and pillars of the mosque have images of Hindu gods engraved, and the inner and outer outlook of the building complex symbolise ancient Hindu and Jain temple Architecture. The suit also asserted that the Qutub Minar was erected at a sacred place of temple, dedicated to Lord Vishnu with Lord Shiva, Lord Ganesh, Lord Sun and Goddess Gauri and also the temples dedicated to Jain Tirthankaras and constellations. The suit also stated that the pillar was constructed during the rule of King Chandra, probably under the kingship of Chandra Gupta Vikramaditya and has been misconstrued as having been built by Sultan Qutubuddin.

The plaintiffs relied upon Arabic inscription on the inner eastern gateway of Quwwatul-Islam Mosque, stated that it was built by using the materials of 27 demolished temples and also upon Archaeological Survey of India report for the year 1871-72-Volume IV and some other uncited historical records to substantiate their claims. The plaintiffs stated that “The construction was named as Quwwat-ulIslam which means might of Islam and purpose was to humiliate / dishonor and degrade Hindu Deities and demoralize their devotees.”

The plaintiffs stated that after the Ayodhya verdict, they visited Qutub Minar purchased books from the Book sale counter and “were shocked to see a large number of pictures of mutilated idols at the pillars of the building and came to know about the barbaric action of first Mohammedan Sultan Qutubdin Aibak to show ‘Might of Islam’ partly demolished the temples and constructed a structure and termed the same as mosque.”

The plaintiffs sought appropriate relief against vandalism and barbarian action of an invader by applying the law applicable to such deity and temple property. The suit also stated that “a number of temples with deities were existing within the temple complex before the construction of the alleged Quwwat-ul-Islam Mosque but nature of Hindu religious property continued and the Muslims never declared the place as Waqf property before or after the construction raised under the command of Qutub-din Aibak and therefore the construction could not be used as Mosque at any point of time.”

The suit stated that lakhs of Hindus visit every year at the place called Quwwatul Islam Masjid considering the area as place of worship dedicated to Lord Vishnu and Trithankars and worship there in restricted manner.

“The broken and mutilated deities are shame for the nation and they are showing our weakness and cowardness from invaders. This National shame must be vanished without any further delay,” stated the suit. The plaintiffs had pleaded for mandatory injunction directing a Trust be created to manage the affairs of 27 Hindu and Jain temples with Iron Pillar.

Observations by Civil Judge

Article 25 and 26 of the Indian Constitution

According to the Court, it is settled law that fundamental rights enshrined under Article 25 and 26 of the Indian Constitution are not absolute in nature and have to be exercised subject to just exceptions created. Admitting the fact that the suit property is a mosque built over temples and noting that it is not being used for any religious purpose nor any prayers/namaz is being offered in the suit property, the Court held that as per an exception to Article 25 and 26, for the sake of public order, status quo must be maintained and protected monument must not be used for religious purpose.

Section 16 of AMASR Act

The Court held that Section 16 of AMASR Act has to be read in consonance with the Places of Worship Act, 1991. It dismissed the plaintiffs’ contention that the suit is not barred under the Places of Worship Act, 1991 as section 4(3)(a) of the Act excludes an ancient and historical monument or an archaeological site and it remains covered by the AMASR Act. The Court is of the opinion that section 4(3)(a) should be seen in the larger context of the Act as the object of the Act is to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947. Moreover, it held that since Section 4(3)(a) of the Places of Worship Act, 1991 is an exception to Section 4(1), such ancient and historical monument cannot be used for some purpose which runs counter to its nature as a religious place of worship but it can always be used for some other purpose which is not inconsistent with its religious character.

Places of Worship Act

The Court ruled that the purpose of the Places of Worship Act, 1991 was to maintain the secular character of the nation. It commented, “Our country had a rich history and has seen challenging times. Nevertheless, history has to be accepted as a whole. Can the good be retained and bad be deleted from our history?” Therefore, the court was of the opinion that harmonious interpretation of both the statutes is required to give full force to the objective behind the Place of Worship Act, 1991. The Court also stated, “India had a culturally rich history. It has been ruled over by numerous dynasties. During arguments, the Ld. Counsel for plaintiff has vehemently argued on the point of national shame. However, nobody has denied that wrongs were committed in the past but such wrongs cannot be the basis for disturbing peace of our present and future.”

The Court referred to the various passages from the Supreme Court’s Ayodhya Verdict which upheld the validity of the Places of Worship Act.

Temple-Mosque Controversy

Besides the Qutub Minar case, there are similar suits in line such as the Gyanvapi- Kashivishwanath case and the Shahi Idgah- Krishna Janmabhoomi case invoking land disputes at temple sites.

Regarding the Gyanvapi case, on May 20, considering the complexities and sensitivity involved in the civil suit, the Supreme Court directed the suit filed by Hindu devotees in connection with the Gyanvapi case be transferred from the trial court judge to a more senior and experienced district court judge and directed that the application filed by the Mosque Committee (AIM) before the trial court under Order 7 Rule 11 CPC be decided on a priority basis by the District Judge and the SC order of May 17 be operational until then and for 8 weeks thereafter.

In effect, today, that is May 24, the Varanasi District Court announced that it would first hear the appeal filed by the defendants about the maintainability of the suit against the Gyanvapi mosque under Order 7 Rule 11 of the Civil Procedure Code (CPC). The matter will be heard on May 26.

In fresh developments in the Krishna Janmabhoomi case, two advocates have moved a Mathura court seeking directions to seal the Shahi Idgah mosque that is located next to the Katra Keshav Dev temple in the city. The petitioners, advocates Mahendra Pratap Singh and Rajendra Maheshwari, in their application before the court of Civil Judge (Senior Division), Mathura, claim that this is necessary to ensure that the religious character of the place remains unchanged. They have also asked that the deployment of security personnel at the mosque be stepped up to prevent any movement. The applicants have sought directions to the District Magistrate as well as the Superintendent of Police, along with the CRPF Commandment, to seal the premises and preserve the Hindu religious symbols such as Swastika, lotus flower, Kalash etc. The matter will be heard on July 1.

The Places of Worship (Special Provisions) Act

The purpose of the law was to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on August 15, 1947. The law kept the Ram Janmabhoomi-Babri Masjid dispute out of its purview, without citing any reasons for the same but probably because the case was sub-judice at that point in time.

The section 3 of the Act clearly states, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.” The objective of the law was clearly to maintain communal harmony in the future.

The law states that all suits, appeals or any other proceedings regarding converting the character of a place of worship, which are pending before any court or authority on August 15, 1947, will abate as soon as the law comes into force. But there are exceptions to this as well, any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 is not declared to maintain its religious character. It is unclear why this was done.

One then wonders why are there suits in courts in this day and age making attempts to reinvigorate Hindu temples and why were they being entertained in courts if the law does not allow it? The language of the Act is clear when it states that no suit shall lie on or after such commencement (of the Act) in any court for conversion of the religious character of any place of worship, existing on the 15th day of August, 1947. So, clearly, it is not just a penal law that provides punishment for contravention but also disallows suits that seek to challenge places of worship.

All of these suits rely on history which clearly states that temples were destroyed, and mosques were built in their place, by invaders as a mark of victorious conquest.