Halt Gyan Vapi proceedings today: SC to Varanasi Court

Varanasi Civil Court
Image Courtesy:english.madhyamam.com

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 adjourned the hearing to tomorrow as urged by the counsel appearing for the respondent, Advocate Vishnu Shankar Jain. The court was while hearing the plea by Anjuman Intezamia Masjid (AIM), which is the mosque management authority, challenging the Allahabad High Court order which permitted an Advocate Commissioner appointed by the Varanasi Civil Court to inspect, and conduct a video survey of the Gyanvapi mosque.

The Court was informed today by the counsel appearing for the petitioner, Senior Advocate Huzefa Ahmadi, that an application has been filed in the lower court i.e the court of Civil Judge (Senior Division) Ravi Kumar Diwakar, to demolish a wall near the Wazu Khana of the mosque. He prayed that the proceedings should be stayed if the Supreme Court was to defer the matter. Accordingly, the court directed the trial court to strictly act according to the arrangement ordered by the court yesterday.

A bench headed by Justice DY Chandrachud asked Advocate Jain to inform the local counsel in lower court not to proceed with the matter. The bench reportedly said, “The trial judge does not have to ticker the tape there.”

The matter will be heard tomorrow at 3 P.M by three-judge bench of the Supreme Court, comprising Justices DY Chandrachud, Surya Kant and PS Narsimha.

Yesterday the Supreme Court had ordered to protect the area where the “Shivling” was found at the Gyanvapi mosque, without impeding the right of Muslims to enter the mosque and pray. This was a significant change from the restriction previously imposed by the lower court in Varanasi. The bench had issued notice on the petition and has listed the matter to be heard today, i.e on May 19, 2022.

A moot point being discussed among legal circles however also is how at all the lower court proceedings can continue when the SC has been seized of the matter by an aggrieved party who is questioning the propriety of the manner in which the lower court has been hearing the matter.

On the same day, i.e 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.

The court of Civil Judge (Senior Division) Ravi Kumar Diwakar has received today, the report from two Advocate Commissioners appointed to conduct a video survey of the Gyanvapi mosque. The survey report has been submitted in three sealed boxes containing detailed written report, data cards of photographs and video clips of the entire survey period i.e from May 6 to May 17. The report was to be submitted on May 17, but the ACs asked for and were granted a two-day extension.

Hearing in the court of Civil judge senior division Ravi Kumar Diwakar was to take place at 2 P.M today, but now it looks like it will not take place in light of the SC order.

Legal journey of the case

On April 8, 2022, Civil Judge (Senior Division), Varanasi, Ravi Kumar Diwakar had appointed Advocate Commissioner Ajay Kumar Mishra 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 Mishra 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 Mishra as Advocate Commissioner, it will appoint two more Advocate Commissioners – Ajay Singh and Vishal Singh – to conduct the survey and submit a report by May 17. At that time, the court had passed and order saying, “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.