The case in this round will go down in history as Committee of Management Anjuman Intezemia Masajid Varanasi vs Rakhi Singh and others SLP(C) No. 14853/2023, Diary No. 31345-2023 . The Anjuman Intezamia Masjid Committee’s repeated challenges to the Varanasi District Judge’s July 21 order for an Archaeological Survey of India (ASI) survey have been sequentially dismissed, first by the Allahabad High Court on August 3, 2023 and then by the Supreme Court on August 4. This has tightened the grip around the Gyanvapi Mosque, which holds a history of over 350 years.
By rejecting the mosque committee’s objection, have both the courts have effectively signalled a potential demise (or dilution of) the Places of Worship Act, 1991 (POW) whose constitutionality has been challenged by a lawyer associated with the right-wing Bharatiya Janata Party (BJP) and is currently awaiting a decision from the apex court?
The judge on the bench which granted ASI the right to continue with its survey (Allahabad HC) observed that the ASI survey is necessary in the interest of justice (1). This statement begs the question – justice for whom? The Gyanvapi Masjid’s case is contentious; the claim being put forward is related to both claims of encroached land and the rights of religious minorities.
The hearings on and around this law, which was enacted in September 1991as a consequence to the violent mobilisations around the demand for the demolition of the then 450-year old Babri Masjid at Ayodhya-Faizabad had been only opposed by the BJP at the time. Today, the law that Parliament regarded as necessary consequential to those developments and the accompanying shrill demands of the Rashtriya Swayamsevak Sangh (RSS)-Viswa Hindu Parishad (VHP) campaign to re-open conflictual wounds and campaign for “re-claiming” thousands of others, is in serious danger of utter disregard and dilution. The PoW 1991 has, seemingly lost its significance, as the clamour for a temple at the Gyanvapi Mosque site by the Hindutva movement is likely to gain a shrill momentum once the ASI declares (a la ASI excavation below the Babri Mosque) the presence of ‘temple-like structures’ beneath the mosque.
Significantly, the famed 2019 Ayodhya judgment by the Supreme Court acknowledged the presence of “temple-like structures at the disputed site” but refrained from definitively establishing whether they were “demolished to build the Babri Masjid.” Moreover, this judgement widely critiqued otherwise, also held that the provisions of the PoW 1991 formed part and parcel of the Basic Structure Doctrine that was formally underlined in thee Keshavananda Bharati Case in 1978.
Arguments
During the court proceedings, senior advocate Madhavi Divan, representing the plaintiffs, emphasised that the ASI survey would provide expert evidence beneficial to all parties. The plaintiffs sought to “worship visible and invisible deities” within the Gyan Vaapi Masjid, claiming to have observed certain signs and symbols. Divan argued that a scientific study could logically reach a conclusion regarding the religious character of the site.
The court clarified that the survey was conducted under Order 26 of the Code of Civil Procedure and is not adversarial or prejudicial since it does not determine the rights of the parties and is subject to objections. Divan further contended that the Places of Worship Act does not prohibit determining the religious character of a place before August 15, 1947.
Solicitor General of India, Tushar Mehta, assured that no excavation would be carried out during the survey, and the ASI would maintain the stand taken before the High Court. However, Huzefa Ahmadi, representing the mosque committee, raised concerns that the survey would re-open past wounds, contradicting the very spirit of the Places of Worship Act.
Justice Pardiwala suggested that the survey be conducted, given the assurance by Mehta that no invasive methods would be used, and the report be presented in a sealed cover. Ahmadi requested the report to be sealed, but the court did not explicitly address this issue in the formal order.
Ahmadi cited previous cases and the Places of Worship Act, arguing that the survey violates the Act’s provisions. The Chief Justice of India (CJI) DY Chandrachud mentioned that these issues would be considered during the arguments in the main matter, and also that the court would safeguard the structure.
Ahmadi raised concerns about potential frivolous suits requesting further such surveys. The Chief Justice clarified that the power of a civil court to pass interim orders is not barred, and the court will protect the structure while addressing maintainability concerns.
The Court allowed the ASI survey to proceed, considering it an interlocutory order appointing a commissioner. The court acknowledged the importance of addressing maintainability issues during the hearing of the main title suit and further assured respondents that Masjid would be protected during the process.
Background to the Gyanvapi Masjid case
The Gyanvapi masjid issue was first brought to the courts’ attention in 1991. A petition was filed with the Varanasi Civil Court by a group of priests, demanding the right for Hindu prayers to be allowed within the mosque’s premises. This demand was based on the claim that the Gyanvapi mosque had been constructed upon a Kashi Vishwanath Temple – and that, based on the original usage of the land, the premises ought to be returned to the Hindus. The proceedings were stayed by the Allahabad High Court in 1998, and the matter pretty much laid dormant for the next two decades – until the Ayodhya Dispute was resolved.
The landmark 2019 Ayodhya title dispute judgement marked the renewal of the Gyanvapi mosque case. In the same year, a fresh case was filed at a Varanasi Civil Court, seeking an archaeological survey to assess the mosque’s origins. In 2020, the original petitioners of the 1991 case approached the court to hear the original petition again. However, these proceedings were once again eventually stayed by the Allahabad High Court in September 2021.
In August 2021, a fresh petition was filed by 5 Hindu women at a Varanasi Civil Court seeking permission to worship Hindu deities within the masjid’s premises (2). Affiliated with the Vishwa Vedic Sanatan Sangh, the women advanced the same claim as prior petitions did regarding the original usage of the land, stating that the Mughal Emperor Aurangzeb had destroyed the temple and built a mosque on its ruins. The maintainability of this suit, i.e. the Shringar Gauri case, was challenged by the Anjuman Intezamia Mosque (AIM) Committee in April 2022 under Order 7, Rule 11 of the Civil Procedure Code (CPC). However, once the Supreme Court redirected the matter to the Varanasi district court, the committee’s plea was dismissed in September 2022. District judge A.K. Vishvesha stated that the “plaintiffs will have right to prove their averments by cogent evidence (2)”, and ruled that Acts like the Waqf Act, 1995 and the Places of Worship Act, 1991 could not prevent the suit from being heard.
Encouraged by this decision, the petitioners filed a plea requesting the carbon dating of a structure (which they claimed to be a ‘shivling’) that had been found in the ablution tank of the mosque in May 2022 (3). The claim that the structure was a sibling was advanced as proof that a Hindu temple once existed upon the masjid’s premises. However, the structure had already been dismissed as a part of a defunct fountain by the AIM Committee and a couple of Mahants associated with the Kashi Vishwanath Temple. In a positive development for the case, the Varanasi Court eventually rejected this plea on 14 October 2022, citing possible damage to the structure as a deterrent.
Over the course of the Shringar Gauri case, several pleas to be made party to the case were dismissed by the Varanasi Court. But just as quickly as these positive steps were taken, the Varanasi FTC undid them by dismissing a plea challenging the maintainability of a suit filed by the general secretary of the Vishwa Vedic Sanatan Sangh. This suit was a separate suit filed parallel to the original suit filed by the 5 Hindu women, and sought to ban the entry of Muslims into the mosque’s premises and obtain permission to pray to the shivling (4). The AIM Committee challenged the maintainability of the suit, but it was dismissed by the FTC on 17 November 2023.
To top it all off, the Archaeological Survey of India (ASI), i.e., the very institution making headlines as of late in this contentious case, informed the Allahabad High Court that while carbon-dating of the structure (claimed to be a shivling) could not be conducted, other modern techniques can be used to determine the age of the structure – thereby providing opportunity for the petitioners to raise unwarranted doubt as to its origins (5). This declaration was a result of the October 14th plea rejection by the Varanasi Court. A plea revision was then filed before the Allahabad High Court, seeking directions to ASI to conduct a scientific probe through excavation and radar devices (5) – bringing us to the present.
Places of Worship Act, 1991
The legislation was introduced by the then Narasimha Rao government (the union minister for SB Chavan at the time and the Bill was introduce by then union finance minister, Manmohan Singh) and passionate interventions in Parliament at the time emphasised the need for such a law that protected the identity and ownership of religious places of worship as they were/are on August 15, 1947.
The Places of Worship Act, 1991 was passed against the growing trepidation regarding the Ayodhya dispute. On September 12, 1991, the Act was passed by the Rajya Sabha, preventing the conversion of any place of worship from the form it took on August 15, 1947. Conveniently enough, the Act states Ram Janmabhoomi-Babri Majid in Ayodhya as an exception to the rule that no case can stand in any court regarding the conversion of a place of worship as it existed on August 15, 1947.
The Act, while primarily questionable due to its contentious exception, was still passed with the intention of acting as a stabilising force amidst rising communal tensions. However, it has seen a mixed implementation.In the Gyanvapi case, the AIM Committee’s plea challenging the maintainability of the Shringar Gauri case’s petition was dismissed by interpreting the Places of Worship Act, 1991 in a specific way so as to create a legal loophole. Varanasi District Court Judge A K Vishveshva pointed out that technically, the petitioners were not seeking a conversion of the Gyanvapi mosque into a Hindu temple dedicated to Lord Shiva, and were merely seeking the right to worship their religious deities upon the disputed land as a civil right guaranteed to them by law. Hence, the Places of Worship Act, 1991 could not serve as an obstacle in the way of the petition.
The Places of Worship Act, 1991 is itself being challenged on the grounds of Constitutional validity. Since the Act bars judicial review, a basic feature of the Indian Constitution, petitions have been filed before the Supreme Court of India this year declaring it to be absolutely arbitrary. They however remain to be fully heard, with proceedings having been adjourned to October 2023 to provide the Central Government with enough time to defend its position.
This law provided some reassurance to religious minorities and citizens who did not support Hindutva politics that the state would not permit the Sangh Parivar’s agenda of “demolishing mosques to restore temples to persist indefinitely,” justifying a falsified and perverted understanding of history and the past.
Hence, the recent decision of the SC allowing the ASI survey, questions of opening a Pandora’s box of controversies has arisen. The SC order endorsed the orders of the two other courts that had previously examined the matter: the Varanasi District Court and the Allahabad High Court.
This legal process has been ridden by contradictions and controversies, beginning with the initial direction in April 2021 from a lower local Varanasi city court to the Archaeological Survey of India (ASI) to conduct a comprehensive survey. The matter was subsequently carried to the Allahabad High Court and then eventually reached the apex court through the appeals of the Mosque committee and others.
After hearing arguments from both sides, the survey was initially halted. During this time, the city court “ordered the videography of the inner precincts of the Gyanvapi Mosque.” When this decision was challenged in the Supreme Court, it permitted the videography but simultaneously transferred the case from the city court to the District Court, citing the social complexities involved.
The sequence of events in this legal process has been marked by a lack of consistency and clear direction, leading to further uncertainties surrounding the issue.
The unfolding of events in this case presents a Kafkaesque narrative or a perplexing whodunit script, lacking clear logic or consistency.
The district court’s order for the ASI survey seemed to overlook previous barriers, even though permission for the same survey had been declined on technical grounds the previous year, only to be allowed on July 21, 2023 by the same judge. The trajectory of this case is hence complex and often, contradictory.
In May of this year, Chief Justice of India DY Chandrachud acknowledged the delicate nature of such matters and the need for cautious handling while hearing a plea against the ASI survey order.
Recently, when the Mosque Committee approached the apex court seeking time to appeal the District Judge’s survey order, the Supreme Court granted a stay and directed the High Court to promptly admit and hear the committee’s petition. The court expressed concern that the Muslim side had not been given adequate time, and it noted that the ASI had started the survey in the early hours of the morning. Interestingly, a similar sequence was followed after the High Court’s approval of the survey in August 2023, but this time, the Supreme Court did not halt the process; instead, it only directed that the survey should be “non-invasive.”
As a consequence, the Supreme Court’s order permitting the ASI survey arguably opens the door for the Sangh Parivar to intensify their campaign for the ‘restoration of temples,’ which they claim were “demolished” by ‘foreign invaders’ centuries ago.
The saffron camp’s crusade is likely to expand beyond the Gyanvapi Mosque and Shahi Idgah in Varanasi and Mathura, respectively. Depending on the outcomes of various political events, especially national and state elections in the next couple of years, there is a possibility of adding new shrines to the ‘to-be-restored’ list. However, a more disheartening prospect looms as there is a clear chance of dramatic or even destructive developments concerning the Varanasi shrine prior to the parliamentary polls scheduled for March-May next year (2024).
These potential developments, following the ASI report’s submission and ominous ‘leaks’ like the videos of the inner precincts of the Gyanvapi Mosque, could lead to a disconsolate occurrence of the impending Lok Sabha elections being contested around the theme of ‘resurgent’ Hindus ‘reclaiming’ their past glory after centuries of ‘subjugation’ by ‘foreign’ rulers.
Following the contentious Ayodhya verdict, in which the Supreme Court awarded the property to Hindu parties for constructing a Ram temple while acknowledging the demolition of the mosque as an “egregious violation of the rule of law,” many law-abiding secular citizens of India had praised the judges for upholding the Places of Worship (PoW) Act as a beacon of hope.
The 1991 law was considered instrumental in resolving disputes, including those of Ayodhya, while excluding the Ayodhya conflict from its purview. The five-judge Ayodhya title suit bench, which included the current CJI Chandrachud, viewed the PoW Act as emblematic of the Indian Constitution’s basic structure. They emphasized that it was “intrinsically related to the obligations of a secular state” and a law that “reflected India’s commitment to the equality of all religions.”
Judicial view on Places of Worship act (POW)
According to the judges, the PoW Act served two purposes: firstly, it prohibited the conversion of any place of worship, thereby preserving the future character of public worship sites. Secondly, the law imposed a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947.
However, this faith in the PoW (places of worship act) Act was significantly eroded in May 2022 when the Supreme Court declared that ascertainment of religious character is not barred under Section 3 of the Act. This ruling came during the hearing on the Gyan Vapi Mosque Committee’s appeal against the videography of the premises, casting doubt on the Act’s protective intent.
Questions have arisen around whether the process of ascertainment, as with the current survey, which goes beyond mere videography, could potentially (without necessary archaeological or historic evidence) reveal the existence of a temple-like structure beneath the Gyanvapi Mosque. If so, it raises concerns whether any court or state institution could prevent its demolition without risking widespread violence and police intervention.
The implications of the Supreme Court’s deadline of October 31, 2023 for the government to present its viewpoint on the 1991 law are significant. The possibility of the ASI findings being leaked to the media looms, potentially influencing political and legal proceedings.
Legal Provisions of Places of Worship Act 1991
Section 3: This bars the conversion, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination or even a different segment of the same religious denomination.
Section 4(1): It declares that the religious character of a place of worship “shall continue to be the same as it existed” on 15th August 1947.
Section 4(2): It says any suit or legal proceeding with respect to the conversion of the religious character of any place of worship existing on 15th August, 1947, pending before any court, shall abate and no fresh suit or legal proceedings shall be instituted.
The proviso to this subsection saves suits, appeals, and legal proceedings that are pending on the date of commencement of the Act if they pertain to the conversion of the religious character of a place of worship after the cut-off date.
Section 5: It stipulates that the Act shall not apply to the Ramjanmabhoomi-Babri Masjid case, and to any suit, appeal, or proceeding relating to it.
Section 6 of the Act prescribes a punishment of a maximum of three years imprisonment along with a fine for contravening the provisions of the Act.
Exemption from places of worship act 1991
Any place of worship which is an “ancient and historical monument”, or an archaeological site covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958. A suit that has been finally settled or disposed of.
Any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.
In 2007, the Himachal Pradesh High Court, in Satinder Kumar And Ors. Vs Union Of India (Uoi) on 26 April, 2007 related to a Church in Shimla, said any structure that is more than 100 years old and satisfies the definition of ancient monument under the law, automatically becomes an ancient monument and there is no special declaration necessary. And once the place of worship is established as an “ancient monument”, it falls outside the ambit of the Places of Worship Act.
Similar cases across the country
Qutub Minar, Delhi
On December 9, 2020, a lawsuit was filed before a civil court in Delhi, alleging that the Qutub Complex, housing the 13th-century Qutub Minar, originally comprised Hindu and Jain temples before being destroyed by Qutb-ud-din Aibak, who then erected the present structures.
The petitioners argued that Delhi was under Hindu rule until 1192 AD when Mohammed Ghori defeated Prithviraj Chauhan in the Battle of Tarain. However, the suit was dismissed by a Delhi court, stating that acknowledging historical wrongs should not disturb peace in the present.
Following the dismissal, the case was challenged, and on February 22, 2022, additional district judge Pooja Talwar agreed to hear a plea contesting the earlier decision. The case is ongoing.
On May 10, 2022, members of a Hindu group called the Mahakal Manav Seva demanded that the Qutub Minar be renamed Vishnu Stambh, claiming it was originally part of a tower constructed atop an ancient Ganesha temple.
Taj Mahal , Uttar Pradesh
On May 7, 2022, Rajneesh Singh, who claimed to be in charge of the BJP’s media outreach, filed a petition with the Lucknow bench of the Allahabad High Court, seeking the opening of more than 20 rooms within the 17th-century Taj Mahal. Singh’s public-interest litigation (PIL) argued that numerous Hindu groups had asserted that the Taj Mahal was an ancient Shiva Temple known as the Tejo Mahalaya.
However, on May 12, the Allahabad High Court dismissed the petition. Justice D K Upadhyay expressed concern, stating, “Tomorrow you’ll come and ask us to go to the chambers of Hon’ble judges? Please, don’t make a mockery of the PIL system.” The court upheld the sanctity of the Taj Mahal, rejecting the claim that it was a Shiva Temple.
Shahi Masjid , Mathura
The 17th-century Mathura Shahi Masjid and Krishna Janmabhoomi in Mathura, Uttar Pradesh, have become contentious places of worship, with two cases currently pending before the Allahabad High Court and a local Mathura district court.
On November 12, 2020, a Public Interest Litigation (PIL) was filed before the Allahabad High Court, requesting that the Shahi Masjid, situated next to a Sri Krishna temple, be handed over to Hindus. Initially dismissed on January 19 of the following year due to the petitioner appearing in court without legal representation, the plea was later reinstated by the High Court on March 14, 2022. The PIL claims that the Shahi Masjid was constructed on the Krishna Janmasthan, believed to be the birthplace of Lord Krishna. The matter has been scheduled for July 2022.
Concurrently, a separate case is ongoing before the Mathura district court seeking the removal of the Shahi Idgah Masjid on the grounds that it was erected over the Krishna Janmabhoomi. The plaintiff, Sri Krishna Janmabhumi Mukti Aandolan Samiti, alleges that the mosque in question (Shahi Idgah) was built on 13.37 acres of land belonging to Thakur Keshav Dev Maharaj Katra.
Bhoj Shala complex , Dhār Madhya Pradesh
On May 11, 2022, the Madhya Pradesh High Court issued a notice to both the central and state governments in response to a petition that seeks to reclaim the 11th-century Bhojshala complex, situated in the district of Dhar, for Hindus and prohibit Muslims from offering namaz there.
Located in Dhar, approximately 250 km east of the state capital Bhopal, the Bhojshala-Kamal Maula mosque has been a shrine claimed by both Hindus and Muslims.
In 2003, an Archaeological Survey of India (ASI) notification allowed Muslims to offer namaz within the Bhojshala complex. However, the recent petition has raised concerns over the place of worship’s status, leading to legal proceedings and discussions on its rightful ownership and usage.
Consequences
The consequences of the High Court and Supreme Court rulings extend beyond the Gyanvapi Mosque. The existence of the Shahi Idgah in Mathura is also jeopardized, as similar cases which are moving towards resolution. Fears and concerns of the ultra right wing’s, relentless ‘demolish-mosques-to-restore-temples’ campaign becoming perpetual seem to be coming true, with winning elections becoming the primary objective of the current regime, as demonstrated by recent events in Manipur and Haryana.
Order may be read here:
(The author is an intern with the organisation, cjp.org.in)
[i] https://www.drishtiias.com/daily-updates/daily-news-analysis/the-places-of-worship-act-1
https://thefederal.com/opinion/gyanvapi-mosque-why-sc-ordered-asi-survey-will-open-the-floodgates/