Gyanvapi case: SC transfers the case from Trial Court to District Court

SC transfers
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On May 20, 2022, 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.

Considering the complexities and sensitivity involved in the civil suit, the bench comprising of Justices DY Chandrachud, Surya Kant and PS Narasimha the Court also 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. This clarification came after senior counsel Huzefa Ahmadi appearing for the mosque authorities, the Anjuman Intezamia Masjid (AIM) stressed that this issue needed to be decided first before the stay imposed by the SC is lifted. The Order finally stated that “The application filed under Order 7 Rule 11 CPC shall be decided on priority by the District Judge. The interim order dated May 17 of this Court (SC) shall continue in operation till O 7 R 11 is decided and for a period of 8 weeks thereafter. The special leave petition has been kept pending and the matter will now be heard in July after the SC vacation.

The Court went on to direct the District Magistrate to make ‘wuzu’ (ritual washing performed by Muslims before prayer) arrangements after consulting with parties. Accordingly, the court ordered that the terms of the SC order dated May 17 shall subsume the order passed by the Civil Judge, Senior Division, Varanasi dated May 16, pending further orders of the Supreme Court.

On May 17, 2022, the Supreme Court had ordered that the area where the Shivling was found at Varanasi’s Gyanvapi mosque should be protected, without impeding Muslims’ right to enter the mosque and pray which was a significant change from the restriction previously imposed by the lower court in Varanasi. Solictor General of India, Tushar Mehta, appearing for the UP government tried to intervene saying that “alternate arrangements should be made for ‘wuzu’”. To which, Ahmadi sharply interjected with “why an alternate arrangement?” To which, Justice Chandrachud said, “We have said arrangement, not alternate arrangement.”

The bench then put forth three suggestions before the parties:

Trial court could dispose the application filed under Order 7 Rule 11
The interim order passed by the SC dated May 17 could continue until the application under Order 7 Rule 11 is disposed
The suit before the Trial court be transferred to a more senior and experienced District court judge.

Senior Advocate CS Vaidyanathan, appearing for one of the plaintiffs before the trial court contended that the SLP filed by the Mosque committee has become infructuous as all the impugned orders have been implemented. With respect to the maintainability of the suit under Order 7 Rule 11, the counsel justified that the religious character of the property had to be considered and for the same reason the Commission report had to be looked at.

Agreeing with the counsel, Justice Chandrachud suggested the suit be heard by District Judge, with 20-25 years of experience, making it clear that the court is not casting any aspersions on the trial court judge.

However, counsel for the petitioners, stressing on Section 3 the Places of Worship (Special Provisions) Act, 1991, pressed for nipping the issue in the bud itself as it had the potential for grave mischief. He argued that all the orders right from the appointment of commission are illegal and are to be declared as void. Justice Chandrachud admitted that the Order 7 Rule 11 od CPC should be given priority and must not be left on the backburner.

Ahmadi reportedly argued, “Our SLP is against the appointment of the Commission. It is to prevent this type of mischief that the 1991 Act was enacted. The Commission report has been selectively leaked to create a narrative. This is something your lordship must interdict. A status quo which has been in existence for last 500 years has been altered. And this altered status quo to continue. They have achieved this through a particular design. Even if the suit has to go back, the status quo as existed on the date of suit must be restored. Look at what is happening all over the country, floodgates will be opened.”

Justice Kant reportedly retorted, “Mr. Ahmadi, sorry for interruption. Whatever preliminary issues you want to raise, if tomorrow your Order 7 Rule 11 application is allowed, then whatever interim orders you are challenging, don’t you think they will become a nullity?”

Considering the ground reality and the fact that the maintainability suit could take a while until its taken up, Ahmadi expressed his concern that it will cause grave public mischief which the Places of Worship (Special Provision) Act 1991 wanted to avoid. He was quoted saying, “If this is allowed to fester, those directions will only remain a pipe dream. There is a narrative which is being created. Commission reports are being leaked selectively. This is disturbing communal harmony. Don’t look at this
from the point of one suit alone. Look at the ramifications across the country.”

However, the Court refused to interfere with the Survey by the Court Commissioner and rule upon the appointment of the Commissioner, claiming that they cannot do so without commenting on the maintainability of the suit.

Justice Chandrachud was then quoted saying, “If we hold in your favour, they are ousted from their argument but if we accept their submission, you will be ousted. Is it right for the SC to do? We have to adopt fair process across the board. We cannot allow the trial to run amok.” Ahmadi forcefully argued that the trial had already run amok and the damage had already been done.

Justice Chandrachud suggested that allowing the lower court to dispose the application under Order 7 Rule 11 for rejection of the suit would be the way to go ahead because this way the petitioners would still have the scope to challenge the appointment of the commissioner, even if they fail the challenge under Order 7 Rule 11. The court suggested that even they were to lose the challenge before the High Court, they would still have the remedy under Article 136 to approach the Supreme Court. He was quoted saying “If Order 7 Rule 11 is allowed, why are we spending time over this?”

Referring to its interim order May 17, he further stated, “We are weighed with a need to have a sense of balance on ground and to have a sense of calm. There is a certain degree of healing touch with the interim order of the Supreme Court. Please don’t forget that we are in a joint mission to preserve the balance of the nation. The selective leaks of Commission report must stop. It should be submitted to the court. Do not leak things to the press. You must present it to the judge.”

Highlighting the gravity of the situation, Ahmadi brought to the court’s attention, “While the Commission is in progress, there is an application moved by plaintiff ex-parte, which relies on confidential proceedings of Commission to suggest a Shivling has been seen. According to us, it is a fountain. On the basis of the application, the entire area is sealed.”

When the Judge remarked that all this was taken well care of in their interim order dated May 17, he reportedly asked, “Why? Isn’t namaz allowed?” To this, Ahmadi reportedly responded, “Namaz is allowed. But the area was used for wazu. The entire area has been sealed. There are police and iron gates all over. The 500 years status quo has been altered.”

Taking into consideration this plea raised by the counsel for the petitioner, the Court offered to pass further orders for the protection of “wuzu”.

As the Solicitor General and Counsel Vaidyanathan raised objections to this offer, Ahmadi requested the bench to look at the provisions of the Places of Worship (Special Provision) Act, 1991 and the directions passed by the 5 judge bench in the case of Ayodhya seeking to interdict mischief like this. He submits that the objectives of the Act is not to allow controversies like this to fester. Pointing out to Section 3 of the Act, he argues that there is an absolute bar on religious character of a place of worship and there is no exception to this. He reportedly questioned, “Why did you appoint a Commission? To find out if there are deities etc. This is an extension of bar under Section 3.”

However, Justice Chandrachud responded saying that the ascertainment of religious character is not barred under the Act. He reportedly said, “Suppose there is an aghyari (fire temple). And there is a cross. Does the presence of cross not make the place an aghyari? Does the presence of cross make it a Christian place? Such hybrid nature are not unknown in India. The ascertainment of religious character of a place as a processural instrument may not fall foul of Section 3 or 4. These are matters where we will not hazard an opinion in our order. We are in a dialogue.

Ahmadi persistently argued, “In India we have several examples…if controversies like this are allowed to fester, the Act will become a dead letter. Even after the order was passed by this court, that area is in the middle of a tank. From the sides, you have taps, where people used to offer wazu. The middle area can be protected. Let access be… Let that tap water be used, as has been for the last 500 years.” To this Solicitor General objected that it would create law and order problems and the Justice Chandrachud said in their defence that they don’t have a birds eye view of the place in question.

Brief background of the case

The Gyanvapi mosque has been in the eye of the storm as it was built after Mughal Emperor Aurangzeb, according to a section, razed a portion of the Kashi Vishwanath temple, many claim that the mosque was built using the temple’s debris. Hardline Hindutva groups, feeling particularly empowered in wake of the Ayodhya dispute verdict (November 2019), have been demanding that the mosque land be given back to the temple authorities. A slew of petitions has been filed over the last two years.

One such petition was filed in August 2021, five women, one of whom has since withdrawn her name from the case. They had moved the Civil Court (Senior Division), demanding that the Maa Shringar Gauri Temple be reopened, and people be allowed to offer prayers before the idols that are still kept there. The petitioners cited the right to practice one’s faith and religious freedom guaranteed by Article 25 of the Constitution.

On April 8, 2022, Civil Judge (Senior Division), Varanasi, Ravi Kumar Diwakar had appointed Advocate Commissioner Ajai Kumar to carry out the survey and asked him to submit a report at the next hearing on May 10. It is noteworthy that this is distinct from the survey by the Archeological Survey of India (ASI), as that was stayed by the Allahabad High Court. The authorities began conducting the video survey on May 5.

But the Anjuman Intezamia Masjid (AIM), which is the mosque management authority, opposed this and moved court. However, their petition against the survey was dismissed by the Allahabad High Court on April 21. The lower court in Varanasi, on April 26, then again passed an order to carry out the survey, though now it appears that there was some ambiguity about where the survey could be conducted, specifically if it could be conducted inside the temple that is located on mosque land that is a Wakf property. The mosque authorities raised concerns as they claim this violates the principle of non-retrogression under the Places of Worship Act. But the petitioners say the same law would be applicable if it is discovered that there was originally a temple on the mosque and therefore the survey is important.

The AIM opposed videography inside the mosque and also alleged that Advocate Commissioner Ajay Kumar was “biased”. They moved court again on May 7. Hearings took place on May 10 and 11 following which the court ordered on May 12 that while it will not replace or remove Ajay Kumar as Advocate Commissioner, it will appoint two more Advocate Commissioners to conduct the survey and submit a report by May 17. The court said, “The survey will be conducted in Gyanvapi mosque and the entire barricaded area. Authorities will photograph and videograph the area. District authorities are ordered to open/break the lock of the basement and allow videography there as well.”

The survey ended on Monday, May 16, when the Shivling controversy broke out. An advocate representing the Hindu petitioners in the case moved an application before the court of the Civil Judge (Senior Division) saying that a Shivling, a stone sculpture considered holy by Hindus, was discovered on the premises. Responding to the application, the judge immediately ordered the area sealed.

While advocate Vishnu Jain claimed the “Shivling” was found in a well, another advocate Madan Mohan Yadav claimed it was facing Nandi (a statue of a holy cow). Details of the survey’s findings were to be submitted to the court by May 17 and have not been made public so far. In fact, when India Today probed the videographer, he simply said that he was not allowed to divulge any details. Though another cameraman Vibhash Dubey, who was a private cameraman allegedly hired by Mishra made statements about finding lotus and swastika motifs in sculptures, these being symbols associated with Hinduism. Some images and videos also found their way to different publications and news channels.

All this has transpired even though the official report has not been submitted to the court, the deadline is tomorrow. Moreover, no relevant authority has confirmed that the structure found was indeed a “Shivling”, a stone sculpture considered holy by Hindus.

Meanwhile, mosque authorities denied that the object found was a “Shivling” and said that it was actually a part of a fountain that once stood at the spot. The AIM was also displeased with how the court ordered the area sealed without even listening to the mosque authorities. The AIM moved court asking for an urgent listing and on May 17, the Supreme Court bench comprising Justices DY Chandrachud and PS Narasimha heard the appeal challenging the Allahabad High Court order which permitted a court commissioner appointed by Varanasi Civil Court to inspect, conduct survey and videography, the Gyanvapi mosque.

Senior Counsel Huzefa Ahmadi appearing for the appellant reportedly argued, “Despite this matter being seized of by this court, the commission went. Despite the fact no report was filed, application by plaintiff said there was a Shivling somewhere near the pond, this was highly improper. Such proceedings had to be confidential. Trial court allows the application and sealed off the area prohibiting entry. We brought this into record by an interim application.”

The Masjid Committee had opposed the suit by filing an application for rejection under Order 7 Rule 11, on the ground that both the suits filed in 1991 and 2021 are barred by the provisions of Places of Worship (Special Provisions) Act, 1991. Reliance was placed on Supreme Court orders which categorically held that the religious character of a place as on August 15, 1947 cannot be tinkered with.

The Supreme Court ordered that the area continue to be sealed, but without denying Muslims access to the mosque for prayers. On May 17, the court of the Civil Judge (Senior Division) removed Ajay Kumar Mishra as one of the Advocate Commissioners tasked to conduct a video survey of the Gyanvapi mosque. This is the same Advocate Commissioner that the AIM had claimed was biased and sought removal of earlier. AC Vishal Singh also moved an application before the court seeking two more days to include all facts in the report. The court granted the extension, and the report was filed on May 19, 2022. The contents have not been made public officially.

Interestingly, the petitioners also moved an application to conduct a new survey of the premises. They want a survey of the wall that stands to the north of the Shivling and the basement area facing the statue of Nandi.

On May 19, 2022, the Supreme Court ordered the Varanasi Civil Court to not proceed further in the matter pertaining to the Gyanvapi mosque, and had adjourned the hearing for today to be heard by the three-judge bench.

In effect, today, that is May 20 order of the three judge bench of the Supreme Court has not considered the constitutional aspects of the 1991 Act enacted 15 months before the Babri Masjid was demolished because Parliament felt strongly that such a law was needed to prevent such “disputes” festering in future. The ruling regime dominated by the BJP has never denied its opposition to this law and may well be waiting for a chance to overturn it. Today’s stance of the SC is likely to impact the ground situation in Mathura too and possibly a host of locations where far right, Hindutva groups have built their political programme on targeting shrines of syncretic culture or those Masjids of the minority.