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New Delhi: The Supreme Court on Tuesday ordered that a section of Varanasi’s Gyanvapi Masjid complex where a “Shivling” was ostensibly found shall remain protected until further orders but Muslims will have the right to offer namaz in the mosque without any hindrance, observing that it was “aware of the sensitivities of the matter”.
The decades-old dispute reached a tipping point this week when Hindu petitioners claimed the recovery of a Shivling in a ceremonial ablution tank in the complex — a contention that the Muslim side rejected, saying the object was part of a fountain.
“If a Shivling is found, we have to maintain a balance. We will direct the district magistrate to ensure protection of the place without restricting Muslims from entering and offering namaz and other religious observances,” said a bench of justices Dhananjaya Y Chandrachud and PS Narasimha while hearing a petition by the managing committee of the Gyanvapi mosque.
In its plea, Anjuman Intezamia Masjid Committee, which manages the Gyanvapi mosque, pressed for a stay of the proceedings before the Varanasi civil judge, on whose orders a day-to-day survey was carried out to inspect, conduct videography, and collect evidence regarding the alleged existence of idols of Hindu deities inside the mosque located next to the Kashi Vishwanath temple. The committee also complained that the Varanasi civil court order of Monday seemed to impose a complete ban on the entry of Muslims in the mosque premises and from offering namaz there.
The bench, however, did not entertain the request made repeatedly by senior counsel Huzefa Ahmadi, who represented the mosque managing committee, to suspend the proceedings before the Varanasi civil court until the top court decides the committee’s challenge to the validity of the survey.
“We have protected the spot where the Shivling was found. And we have clarified that this will not restrict the rights of Muslims. We think this is a balance…let us leave it at that… We are balancing everything. This is an interim arrangement,” the court told Ahmadi, who complained that the status quo has been disturbed by the order of the civil court on Monday by sealing a section of the mosque after lawyers representing Hindu petitioners claimed a Shivling was recovered during the survey.
Fixing the next hearing on May 19, the bench further noted that Hari Shankar Jain, the lawyer leading the suit on behalf of the five Hindu women petitioners in the case, could not make it to the proceedings on Tuesday due to a medical condition, and issued notices to the plaintiffs and the Uttar Pradesh government for the next date.
It added that the bench has clarified the ambit of the Varanasi court order of Monday to dispel all ambiguities since the Hindu petitioners had asked for several restrictions on access to Muslims inside the mosque complex.
Solicitor general (SG) Tushar Mehta appeared in the case for the Uttar Pradesh government, clarifying the state and its officials were only acting as per the orders of the civil court, which directed the administration to protect the site where a Shivling was reported to be recovered. At the same time, the SG raised the issue of “law and order”, adding that the area where the Shivling has been reportedly found needs to be duly protected.
“We are not taking sides but there is something we must highlight as a state. There is a concern that the area where the Shivling has been reportedly found and somebody touches with feet, there could be a law-and-order issue,” contended Mehta.
His submissions were strongly opposed by Ahmadi. “I strongly object to the manner in which the suit is being proceeded with. What was the tearing hurry to seal the premises? You are changing the status quo by restricting access to any part of the property, including the wazu khana (ablution tank) where Muslims cleanse themselves before offering namaz. And this order of sealing was passed without hearing us, not upon a report from the advocate commissioner but when a plaintiff moved the trial court. Does this not show bias?” he argued.
The bench, however, told Ahmadi that only an interim arrangement is being put in place for the time being and that it expects all sides to cooperate. “We have to balance it out. We are aware of the sensitivities involved… This is a situation where everybody must co-operate,” it remarked.
At this point, Ahmadi urged the bench to stay the proceedings before the civil court but Mehta countered the plea, arguing that not only because the petitioner is not before the court but also since that such an order would only sensationalise everything.
“We are balancing everything. This is an interim arrangement…We have restricted the ambit of the trial (civil) court order. Ordinarily, when a judicial officer looks at our order, he or she knows what to do,” said the bench, refraining from issuing a stay order.
Hours after the SC order, joint secretary of Anzuman Intezamia Masjid Committee SM Yasin said, “Around 200 people (Muslims) offered prayers in Gyanvapi mosque on Tuesday.”
On Monday, the Varanasi civil court ordered a section of the Gyanvapi Masjid complex sealed after the Hindu petitioners’ lawyer Hari Shankar Jain claimed a Shivling was spotted at the bottom of a tank during the survey. The civil judge directed the Varanasi district magistrate, its police commissioner and the Central Reserve Police Force (CRPF) commandant to ensure security of the sealed area.
Muslim petitioners, however, said that the object recovered was a fountain, and that the civil court passed its order without hearing their version. The mosque managing committee also criticised Hindu parties for making disclosures before the survey’s results were officially declared.
The crucial turn of event came a day before the mosque managing committee’s petition was to come up for its first hearing before the Supreme Court. In its appeal before the top court, the committee argued that the suit filed by the five Hindu women, demanding an unhindered right to worship Maa Shringar Gauri Sthal — a shrine for Hindu goddess Parvati located behind the western wall of the mosque complex, is barred by the provisions of the Places of Worship Act, 1991.
Challenging the April 21 order of the Allahabad high court allowing the survey, the petition added that the suit has the propensity of disturbing the communal harmony, warranting an intervention of the Supreme Court in the wake of the 2019 judgment on the Act.
The Act lays down that the character of a place of worship, as existing on August 15, 1947, shall not be altered. Only the Ram Janmabhoomi-Babri Masjid dispute was kept out of the purview of this law. The 2019 Ayodhya verdict spelt out that the 1991 law prohibits the conversion of any place of worship and in doing so, it speaks to the future by mandating that the character of a place of public worship shall be preserved and not be altered.
In its appeal, the mosque managing committee further told the top court that the suit filed by five women in 2021 is a “via media” to skirt the stay ordered by the high court in September 2021 relating to another 1991 suit, where the Archaeological Survey of India (ASI) was to conduct a survey. The committee said that its application for dismissal of the suit has to be decided before ordering inspection.
When the hearing commenced on Tuesday, the bench told Ahmadi that it could direct the civil court to first decide the managing committee’s application for dismissal of the suit on the ground of maintainability. “We can issue a direction to the civil court to first decide your application under Order 7 Rule 11 (to dismiss the suit on maintainability). You have raised this and we will say this should be decided first. The basic challenge to the proceedings before the trial court is under the Places of Worship Act. That’s the basis of your grievance. We can ask them to decide your application first,” it told Ahmadi.
But the senior lawyer pressed for a stay of the proceedings till the civil court could decide the committee’s application. “I want stay on all these orders. The civil judge’s order is first interdicted by the Act. Second, it is interdicted by the judgment of this court (in Ayodhya case), and lastly, it is interdicted by the Allahabad high court order which has also stayed a survey of the premises,” he argued.
At this point, the court looked for the lawyer for the Hindu petitioners. Advocate Ardhendumauli K Prasad, who was also appearing for the state government, however, informed the bench that Jain could not remain present in the court due to bad health.
SG Mehta said: “An associate of mine has received a message from Mr Jain’s son, Vishnu Shankar Jain, that his father had a cardiac problem and he had to be rushed to a hospital.”
The court, therefore, deferred the hearing on this point and decided to make an interim arrangement till the matter could be heard next in the presence of the lawyer representing the Hindu women.
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