It seems Hindutvawadis were emboldened after getting a ‘favourable’ verdict from the Supreme Court on the Babri Masjid Vs Ram Mandir dispute in November 2019. Since then a number of petitions have been filed in lower and higher courts, raking up their pet ‘mandir-masjid’ issue. It is also shocking to note that a section of the judiciary is readily entertaining such frivolous and bizarre petitions while ignoring the entire written submissions and applicability of the Places of Worship (Special Provisions) Act, 1991.
The latest in this series is the ‘shocking and unwarranted’ order of a civil court in Varanasi on Gyanvapi Masjid, giving its approval for survey of Gyanvapi Masjid complex by Archaeological Survey of India (ASI). Taking a cue from Varanasi court order, a petition has been filed in a local Mathura court, seeking order for a survey of the Jama Masjid in Agra and the Shahi Eidgah mosque in Mathura to find out if idols of Hindu deity Krishna allegedly looted from the Mathura structure are buried in the Agra mosque.
Sensing the danger posed by the controversial order, the Anjuman Intezamia Masjid, caretaker of the Gyanvapi Masjid, Varanasi and the Uttar Pradesh Sunni Central Waqf Board have swiftly moved the Allahabad High Court.
In the petition, they have challenged the maintainability of a civil suit pending before the Varanasi district court regarding the title dispute in the case. Arguing that the HC on March 15 reserved its judgment in the maintainability suit, the Mosque Committee and the Sunni Board pleaded with the HC to restrain the lower court from further proceedings.
An urgent application moved by the Anjuman stated that the civil Judge was “behaving in the most arbitrary manner and is passing the orders against the spirit of Judicial discipline”.
“…it appears the learned civil Judge concerned is more interested to bypass all judicial disciplines and ethics as well as procedures of law and to establish himself as above the judicial hierarchy as defined under the Civil Procedure Code and had assumed himself as the only authority to decide the entire issue without looking into the legal impediment and bars,” said the application which was filed by advocate Syed Farman Ahmad Naqvi on behalf of the Masjid Managing Committee.
A similar application was filed by Sunni Central Waqf Board. The Board’s standing counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without jurisdiction as the matter is pending before the High Court and Justice Prakash Pandia had reserved the order on March 15 this year.
“Our miscellaneous application has prayed that till the order in the writ petition is passed by the High Court, the trial court in Varanasi be restrained from proceeding in the matter,” Gupta said.
“During court hearings, the plaintiffs in the matter had filed an undertaking stating that they will not proceed with the case on merit till the matter is decided in the High Court. The proceedings in the local court in Varanasi are barred by the Places of Worship Act, 1991, which says that the nature of religious places will not be changed from what it was on August 15, 1947.”
Gupta added that the Varanasi trial court judge has ignored Places of Worship (Special Provisions) Act, 1991, and order VII Rule 11D of the Civil Procedure Code. The rule deals with any suit which is barred by Statute, which in this case will be the Places of Worship (Special Provisions) Act.
It is mentioned that on April 8, senior fast-track court civil Judge Ashutosh Tiwari directed the ASI to conduct a physical survey of the Gyanvapi mosque compound adjacent to the Kashi Vishwanath temple to find out whether it was a “superimposition, alteration or addition or there is structural overlapping of any kind, with or over, any other religious structure”. The civil judge directed the ASI to form a five-member team to “trace as to whether any Hindu temple ever existed before the mosque in question was built or superimposed or added upon at the disputed site”.
The order further states that the ASI team would be entitled to enter every portion of the religious structure situated at the disputed site, but shall first resort to only Ground Penetrating Radar or Geo-Radiology System or both to satisfy it on whether any excavation or extraction work is needed at any portion of the religious structure.
The court order came on a petition filed by a local lawyer Vijay Shankar Rastogi in 2020 seeking, who had demanded that the land entailing the Gyanvapi Mosque be restored to Hindus. The petition was filed in December 2019 on behalf of Swayambhu Jyotirlinga Bhagwan Vishweshwar in the court of civil judge. The first petition was filed in the Varanasi civil court in 1991 on behalf of Swayambhu Jyotirlinga Bhagwan Vishweshwar seeking permission for worship in Gyanvapi.
In his petition, he said Kashi Vishwanath Temple was built over 2000 years ago. He said Gyanvapi Mosque was constructed allegedly after the temple was demolished by the Mughal emperor Aurangzeb in 1664. The temple was re-constructed by Maharani Ahilyabai Holkar in 1780, he said.
Rastogi maintained that the Places of Worship (Special Provisions) Act, 1991 was not applicable to this suit. Barring for the litigation on the Ayodhya land dispute, this law prohibited courts from entertaining any petition that would alter the status quo of a religious place as existed on August 15, 1947.
However, in January 2020, the Anjuman had filed an objection against the petition. The Gyanvapi mosque management committee had also opposed the petition.
Questioning the court order, Zufar Ahmad Faruqi, Chairman, UP Sunni Central Waqf Board asserted that the status of Gyanvapi Masjid is beyond question. He said the UP Waqf Board viewed the order violative of the Places of Worship (Special Provisions) Act, 1991 which has been upheld by the Supreme Court on many occasions.
“Our understanding is clear that this case is barred by the Places of Worship (Special Provisions) Act, 1991. The Places of Worship Act was upheld by a 5-judge Constitution Bench of the Supreme Court in the Ayodhya judgment. The status of Gyanvapi Masjid is, as such, beyond question, Chairman Faruqi told Radiance Viewsweekly.
Referring to several petitions filed in different courts in UP, he said the UP Waqf Board wants that this practice of mosques being ‘investigated’ by the ASI has to be stopped. He also underlined that the order of survey is questionable because technical evidence can only supplement certain foundational facts.
In this connection, no evidence has been produced before the Ld. Court that suggests that there was a prior existing temple at the site of the mosque.
Referring to Babri Masjid title judgment, Faruqi underlined that even in the Ayodhya judgment, the ASI excavation was ultimately of no use and the ASI did not find proof that the Babri Masjid was built upon demolition of a temple and the Supreme Court has specifically observed that there was no such evidence.
Anjuman Intezamia Masjid’s general secretary S M Yasin also said the mosque committee would file a revision petition soon in the Varanasi district judge’s court.
Meanwhile, the members of Muslim community noted the development with a grave concern. A group of seven prominent community organisations issued a joint statement terming the civil court order on Gyanvapi as shocking.
“The order is quite surprising, disconcerting and raises a lot of questions. With the existence of this law, the recommendation by a fast-track court of Benaras to conduct a survey of the precincts of the mosque is quite bewildering and goes against the 1991 law,” it says.
Leaders of these organisations warned that the social and political fallout of this decision can turn out to be quite unpleasant. The politics of hate and the communal disharmony may receive a fillip because of it. After the 1991 law, any scheming and plotting with regards to places of worship should be construed to be against the nation and against national-interests. All conspiracies against this law should be dealt strictly by the judiciary and all the institutions of the government.”
The statement was signed by Navaid Hamid, Syed Sadatullah Hussaini, Dr. Manzoor Alam, Maulana Asghar Ali Imam Mehdi Salfi, Maulana Tauqeer Raza Khan, and others.
The current ruling by the Varanasi court and the Supreme Court’s willingness to entertain the plea on Places of Worship Act may once again ignite the communal cauldron in the country. However, so-called secular political parties are keeping a deafening silence on these developments. Only exception is of the Communist Party of India (Marxist) which promptly issued a statement. CPI (M) said, “The order of a civil court in Varanasi for a survey of the Gyanvapi mosque by the Archaeological Survey of India to ascertain whether a temple existed at the spot is violative of the extant law in the matter. The Places of Worship (Special Provisions) Act enjoins the maintenance of status quo in all such religious places of worship.
The largest constituent of the Left Front asked the higher judiciary to intervene immediately to nullify the Varanasi court order.
In a similar vein, Jamaat-e-Islami Hind Vice president Prof Mohammad Salim Engineer said the higher judiciary should overthrow the civil judge’s ruling in the Gyanvapi mosque case.
Terming such petitions as ‘mischievous’ , Engineer Salim said it is the duty of the government and the higher judiciary to protect the constitutional values as well peace and tranquillity in the society. There is no doubt that such petitioners are cheap publicity seekers who want to put the country on the boil.
We should learn a lesson from the devastation and havoc perpetrated by the so-called Ramjanmabhoomi movement which was carried out by a particular ideological group for achieving its petty political gains while secular political parties should not remain mute spectators on these activities which are detrimental to peace in the country, the Jamaat leader said.
These petitions also filed with intent to provoke the Muslim community in order to provide fresh fuel for the ruling party’s politics of polarisation. Engineer Salim exhorted the community to control their emotions and work to deprive anti-social and communal forces to take advantage of the unfortunate judgment of the lower court.