EXAMINING THE LEGALITY OF A VARANASI COURT

ORDER MANDATING ASI SURVEY OVER GYANVAPI

MOSQUE
By Chaithra Sathyan
Introduction
A civil court in Varanasi District assigned Archaeological Survey of
India (ASI) in undertaking a survey at the disputed site of Kashi
Vishwanath Temple- Gyanvapi Mosque and the cost for the same was
beard by the government of Up. The survey was for finding out
“superimposition, alteration or addition or structural overlapping
with/over, any other religious structure.”
All this began from the petition which got filed by Advocate Vijay
Shankar on behalf of Swayabhu Jyotirlinga Bhagvan Vishweshwar
and his contention was that the land where the mosque is built
belongs to Hindus. It was claimed that the Mosque which is situated
adjacent to the Kasha Vishwanath temple, was built after demolishing
a portion of the said temple. To understand this case at the fullest we
need to look upon the history of the dispute regarding the mosque and
the temple.
Background of the case
The first religious parliament formed by Hindus in Delhi called for a
nationwide claim over the Holy shrines situated in Varanasi, Mathura
and Ayodhya. This movement took place just after the Babri Masjid
dispute and hence gained support from the public. The claim was over
around 3000 mosques in the aforementioned places but their main
focus was over two particular mosques, that is shahi iddah mosque,
adjacent to Lord Krishna temple in Mathura and Gyanvapi mosque
adjacent to kasha Vishwanath temple in Varanasi. This led to the
enactment of the Places of worship (Special Provisions) Act 1991 by
the then PV Narasimha Rao administration. But this was strongly
opposed by BJP contesting that this had a strong favour towards the
Muslim community.
The conflict came into its peak when the petition was filed by
advocate Vijay Shankar Rastogi on the behalf of the main deity of the
temple- Swayabhu Jyotirlinga Bhagwan Vishweshwar. In his petition,
Vijay Shankar claimed that the temple was constructed by Maharaja
Vikramaditya about 2050 years ago in the place where the mosque is
situated. He put forward his demand to remove the mosque from the
site and give over the land to Hindus for worshipping inside the
mosque. The main contention put forward by the petitioner was that
the Place of Worship (Special Provisions) Act, 1991 won’t have any
applicability over here as the mosque was built after demolishing part
of the temple. But the trial court in Varanasi stated that the relief
sought by the petitioners was barred under the Places of Worships
(Special Provisions) Act, 1991. The petitioner filed a revision petition
on this. And in 1998, AIM Committee moved to Allahabad High
Court and stated that the dispute could not be adjudicated upon by a
civil court and cited Section 4 of the Places of Worship (Special
Provisions) Act,1991. A stay order was passed by the Allahabad HC
on the civil proceedings and the matter got pending for about 22
years. And finally in 2020, the petitioners again approached the lower
court to resume the hearing as the HC had no extended the stay for the
past six months.
This move again got challenged by the Allahabad HC which
reiterated the stay order again.in February 2020. And in its order on
April 8, the civil court of Varanasi District assigned ASI to conduct a
survey inorder to dig up the truth and settle the matter before it. Thus,
the findings of ASI are having evidentiary value in this case.
This brings up the question whether the survey report can alone
decide the title suit in question here. In the landmark case of Babri
Masjid it was settled that the title suit cannot be decided on the basis
of an ASI report alone. So, the question we have to deal here is how
or when the ASI report become crucial in case. Merely submitting the
report won’t make it an evidence in a case. It requires certain
requirements to be full filled to be considered as a valuable evidence.
It’s only going to remain as a report unless someone from the ASI
enters the witness box and depose about it and subjects himself to
cross examination.
Exception under Places of Worship Act and its effect
Another exception put forward towards the case was the exception by
the Section 4 of Places of Worships Act 1991. According to Section
4(1) any legal proceeding that seeks to change the character of a place
of worship shall abate with the commencement of the Act and the
religious character shall be maintained as it was on August 15,1947.
And as per clause 2, if a suit or appeal or any other proceeding is
instituted claiming that conversion of a place of worship took place
after august 15, 1947, it should be disposed of in the same manner as
clause 1 by ensuring the character of the place of worship as it existed
on August 15,1947.
There are certain other exceptions too put forward by Section 4.
Section 4(3)(a) states that if a place of worship is covered under the
definition of ancient and historical monuments or archaeological site
or remains, those places could be from the ambit of the Places of
Worship Act. Now when we look upon the Ancient Monuments and
Archaeological sites and Remains Act 1958, an “ancient monument”
is any structure, erection or monument, or any tumulus pr place of
interment, or any cave, rock-sculpture, inscription or monolith, which
is of historical, archaeological or artistic interest and which has been
in existence for not less than one hundred years. In the landmark case
relating to church in Shimla, the Himachal Pradesh HC gave its
judgement that if any structure is of 100 years old in its existence and
satisfies the definition of ancient monument under law, it
automatically becomes eligible to be called as an ancient monument
and any special declaration is not necessary. And such a structure will
automatically fall outside the ambit of the Places of Worship Act.
Now our question is how will Section 4(3)(a) of the Places of
Worship Act apply on the Gyanvapi mosque dispute in Varanasi.
After the survey conducted by ASI if it’s found that there are
structures or monuments underneath the mosque, it will support the
claims put forward by the Hindu community and the suit will be
exempted from the Places of Worship Act. This will add up to the
exemptions already existing, that the temple’s character has not
changed with superimposition of a mosque. Considering the sensitive
issue involved in the case a HC judge stated that the provision of
Section 4 (3) (a) has to be seen in a larger context to evoke the
exception. The former judge quoted that the provision on ancient
monument was meant to facilitate the takeover of a structure by the
central government or ASI to protect it, not to allow for a change of
its character. The Former Madras HC judge K Chandru said that the
main aim behind the Place of Worship Act is to protect the places of
worship from alteration of its character. So according to him the court
order regarding ASI survey is unconstitutional as the court doesn’t
have any jurisdiction to hear the suit. He also added that changing the
religious character of a place of worship merely upon the finding of
ASI survey is not considerable. They can only protect a monument if
it is of importance not to destroy it altogether.
Hence the Varanasi court order in authorizing ASI to provide report
on the matter is debatable and needed further revision.
Conclusion
India is known for its diversity and culture. All these are connected
more with their religious beliefs. People in India are known for their
religious sentiments and disputes happens mostly in the name of these
sentiments. Indian religious culture can be traced back to centuries
and the government finds it really important to settle the dispute
regarding these matter with utmost diligence and it has high level of
public scrutiny. The matter like this should be settled in the most
appropriate way inorder to avoid further complications. Thus, the
Varanasi HC decision has to be reviewed if it is needed.
Bibliography
1. https://scroll.in/article/992086/analysis-could-asi-survey-of-
gyanvapi-mosque-lead-to-it-being-exempted-from-places-of-
worship-act
2. https://www.thehindu.com/news/national/other-states/kashi-
vishwanath-mandi-gyanvapi-masjid-case-sunni-waqf-board-
moves-allahabad-high-court-against-varanasi-court-
order/article34311266.ece
3. https://indianexpress.com/article/opinion/columns/gyanvapi-
mosque-dispute-kashi-vishwanath-temple-asi-7270802/