Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Soumyabrata Chakraborty, a second-year law student at Gujarat National Law University, Gandhinagar, Gujarat.
Last Friday, 4 August 2023, the Supreme Court of India (SCI) refused to stay a “scientific survey” by the Archeological Survey of India (ASI) to determine whether a 17th-century mosque was constructed over a pre-existing Hindu temple. The mosque in question is the Gyanvapi Mosque in the holy city of Varanasi, Uttar Pradesh. It is situated in close proximity to the Kashi Vishwanath Temple, a popular site of Hindu pilgrimage in Prime Minister Narendra Modi’s parliamentary constituency, Varanasi. It is alleged that the mosque was constructed after demolishing a Hindu temple several centuries ago and a section of the temple remains as the rear wall of the mosque, giving the mosque its name, Gyanvapi Mosque, after the site it was built upon.
The instant case arose from a petition filed by five Hindu women in August 2021 before a Varanasi Civil Court seeking the right to worship Hindu idols located inside the mosque complex. They further sought the prevention of any damages to the said idols. Subsequently, the civil court ordered a videotaped survey of the mosque premises by an Advocate Commissioner, who submitted a report of the findings in May 2022. The report stirred controversy for its claim that a structure similar in appearance to a Shiva Lingam, a revered representation of the Hindu god, Shiva, was found in the mosque’s Wuzukhana or ablution pond. The Hindu parties in the case approached a District Court in Varanasi seeking a scientific investigation to ascertain the veracity of the survey findings with regard to the Shiva Lingam. The District Court however rejected the plea on October 14, 2022. The Allahabad High Court however, held on May 12, 2023, that a scientific investigation can be conducted to ascertain whether the alleged object was indeed a Shiva Lingam, without causing any damage to the object itself. When the matter reached the Apex Court of the country, the SCI sought responses from the Central and the State governments to the contentions of the Muslim side. The matter has been conclusively settled before the SCI, which has refused to interfere with the process as well.
On July 21, 2023, the District Court ordered a survey of the mosque premises excluding the contentious Wuzukhana area, previously sealed by the Supreme Court, by the Archaeological Survey of India (ASI), an organisation of archaeological research under the Ministry of Culture, Government of India. Subsequently, on August 3, the Allahabad High Court allowed the scientific survey by the ASI, dismissing a plea filed by the Muslim party challenging the district court order. The High Court noted that the scientific survey is important in the ‘interest of justice’. The present dismissed appeal before the SCI arose from the August 3 order of the Allahabad High Court.
On August 4, a three-judge bench of Chief Justice of India (CJI) DY Chandrachud, and Justices JB Pardiwala and Manoj Misra rejected the appeal challenging the survey, allowing the ASI survey on the mosque premises. The Bench noted that such a survey was also conducted in the infamous Babri Masjid or Ayodhya mosque case. On the very next day, August 5, 2023, the ASI started its survey of the mosque premises, with cooperation from both the Hindu and the Muslim sides.
Before the Supreme Court, the Anjuman Intezamia Masjid Committee, which manages the Gyanvapi mosque, contended that such a survey would be an attempt to change the religious character of the mosque. The contention was based on the Places of Worship (Special Provisions) Act, 1991, which bars the conversion of a place of worship from its nature from how it existed on August 15, 1947, the day of India’s Independence. Meaning, a place of worship which was a mosque on August 15, 1947, would remain a mosque, and its nature couldn’t be changed. In light of the provisions of the Act, the Muslim party questioned whether the High Court could permit such a survey. It was argued that the Gyanvapi mosque was a Muslim Mosque on August 15, 1947 (the day of India’s independence) and continues to remain the same. The appellant contended that the Act of 1991 bars any examination into the nature of a place of worship from its status on August 15, 1947. The appellant argued that the survey order goes against the principles of secularism and the statement of object of the 1991 Act.
A bench of the SCI had previously held that the Act of 1991 doesn’t bar the ascertainment of the religious character of a place of worship. Both the Allahabad High Court and the Varanasi District Court had earlier held that the Act doesn’t bar the instant civil suit, since the suit was solely to seek the right to worship and not to alter the character of the place of worship. Section 4 of the said Act stipulated that the religious character of a place of worship shall continue to be the same as it existed on August 15, 1947. However, there is no explicit bar on the examination of the nature of a place of worship. While the Muslim party contended that the site in question has remained a Muslim Mosque for over 600 years, the Hindu parties argued that regular prayers to Hindu idols inside the mosque complex were offered until 1993, and then annual prayers were allowed on a specific day. Based on this contention of the Hindu side, the district court ruled that the Act of 1991 doesn’t bar the instant case. Notably, the Places of Worship (Special Provisions) Act, 1991 is currently under challenge before the top court in at least two different petitions, questioning the arbitrary and retroactive cutoff date mandated in the Act.
The Supreme Court in its order on August 4 reiterated the safeguards introduced by the High Court in relation to the methodology of the scientific survey. The Court noted that the ASI has clarified that there would be no excavation or destruction of the property. The Court ordered the ASI to conduct its survey using “non-invasive methodology”. The Bench also directed the ASI to submit its report before the Allahabad High Court, in a sealed cover, so as to avoid public outcry due to any unwarranted disclosure of the findings.
The Muslim party stated before the Apex Court that such a survey will lead to “unravelling wounds of the past”. The appellant’s contention that the civil suit was frivolous was rejected by the SCI, with the CJI stating that “what is frivolous to you is faith to others”.
Legal disputes over the mosque’s origins date back to 1991 when petitions were filed by Hindu priests before a civil court in Varanasi seeking the right to worship within the mosque premises. However, the proceedings were stayed by the Allahabad High Court. The present legal dispute is believed to be significant politically, with Prime Minister Modi’s Bharatiya Janata Party welcoming the decision of the High Court, saying that the survey will bring out the “truth”. The debate around the mosque’s origins has been going on for decades in the country’s historical and political corridors. Prominent historians, like Satish Chandra, have stated that Aurangzeb, the Mughal Emperor ordered the demolition of a temple at the site, and built the Gyanvapi Mosque in 1669. Similar claims were made by historian Audrey Trushke in her book “Aurangzeb: The Man and the Myth”. Historians believe that the temple at the site has been demolished and rebuilt several times throughout history.
The District Court’s order requiring the ASI survey can be questioned in terms of its legal reasoning. Even the superior courts have lacked in questioning the legal grounds for allowing such a survey. The District Court’s order says that a scientific survey would help establish the “true facts” about the case and help arrive at a conclusion in the instant suit seeking the right of worship. Both the High Court and the Supreme Court allowed this gathering of official evidence from ASI that the plaintiff side did not have. The judgement in the Ayodhya case was also based on a similar survey report of the ASI among other evidence. The Courts in this instance dismissed objections that said that the court cannot gather evidence on behalf of the plaintiffs and that the court cannot ask for expert evidence even before framing of issues in the suit. Whether the courts are raking up political debates by encouraging such motivated litigation, is a question that needs to be answered by the country’s judiciary. While one side believes that such cases will legally settle injustices caused over the centuries, the other side believes such exercises will unravel wounds of the past, and will be detrimental to the fraternity and secular character of the country. Regardless of the beliefs of either side, this dispute may well be on its way to becoming a national political issue in India, akin to the highly polarising and contentious Babri Masjid dispute that was settled a few years ago.
Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.