Gyanvapi Masjid Case: Decoding the Varanasi Court Verdict and Lingering Concerns

The question is – will our courts be able to rely on science to rule on matters of religious fervour?

Gyanvapi Masjid. 

(Photo: Altered by The Quint)

Varanasi’s Gyanvapi Mosque has been the centre of several legal disputes since 1991.

In 1991, a suit was filed by devotees of the Kashi Vishwanath temple near which the Gyanvapi Mosque is situated, alleging that the Mosque was built after a Lord Vishweshwar temple was destroyed on the orders of Mughal Emperor Aurangzeb. The proceedings in the 1991 suit have since been stayed by the Allahabad High Court.

But another suit was filed in 2021 by five women Shiva devotees before ivil senior judge, Varanasi, seeking "restoration of performance of rituals at the principal seat of an ancient temple" at the Gyanvapi Mosque area.

The dispute reached the apex court after multiple orders were passed by both the civil court in Varanasi and the Allahabad High Court on pleas by both the Hindu devotees and Anjuman Intezamia Masjid Varanasi (the Masjid Committee) as well as others.

The Varanasi court had originally ordered an inspection of the premises on petitions moved by the five Hindu women seeking all-year-long access to pray at a Hindu shrine behind the western wall of the Gyanvapi Mosque complex in Varanasi (which is currently opened for prayers once a year).

Advocates and security personnel arrive at Gyanvapi Masjid complex to resume a videographic survey of the disputed site on Saturday, 14 May.

(Photo: PTI)

Meanwhile, the Anjuman Intezamia Masjid Varanasi had sought leave of the Supreme Court that its application under Order 7 Rule 11 should be heard first by the civil judge, and then only should the case be proceeded with, including the unfolding of the Commission’s findings.

The Anjuman Intezamia Masjid Varanasi, also staked claim that the present suit is not maintainable on account of the Places of Worship Act, 1991, and that when a certain law holds the field, the suit is bound to be dismissed.

In response, the plaintiffs stated that to address the very cause of action in the case it is imperative that the Commission’s reports be attended to at first.

These claims and counter-claims, understandably, led to a legal quagmire, causing an impasse, in the Gyanvapi case.

In a bid to rationally move forward through this legal maze, the Supreme Court, on 20 May 2022, ordered that the application filed by the Committee of Management Anjuman Intezamia Masjid under Order 7 Rule 11 CPC for rejection of the suit as being barred in law, shall be decided on priority by the District Judge.

So the question reverted back to the District Judge, Varanasi on whether the Gyanvapi mosque does conceal in its premises a “shiv ling” and therefore, there arises a 'cause of action' and also on whether the Court can adjudicate the matter at all in view of the Places of Worship Act, 1991.

What Does the Places of Worship Act Say?

Section 3 of the Places of Worship Act of 1991, reads

"No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof."

The significance of the Places of Worship Act, 1991, cannot be understated. It is a legislation that's been key in preserving the secular fabric of our nation. Only the Babri masjid case has been accepted as an exception to its covenant. The Act itself, which is under challenge before the Apex Court, has been described by its defenders as the torch bearer of the secular ethos of our Constitution.

The Constitutional Bench of the Supreme Court of India in the Babri masjid title suit, while observing on the importance of the Places of Worship Act, 1991, stated that:

“The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution.”

The Verdict on the Preliminary Issue of Maintainability of the Gyanvapi Suit

On 12 August, District Judge Ajay Krishna Vishwesha observed that the suit of the plaintiffs is not barred by the Places of Worship (Special Provisions) Act, 1991, The Waqf Act 1995 , and the U.P. Shri Kashi Vishwanath Temple Act, 1983 as was being claimed by the Anjuman Masjid Committee (which manages the Gyanvapi Masjid).

The Court specifically held that since the Hindu worshippers claimed that Hindu deities were being worshipped by them inside the masjid complex even after August 15, 1947 (which is the cut-off date provided under the Places of Worship Act), this act will have no applicability in this case.

" In the present case, the plaintiffs are demanding right to worship Maa Sringar Gauri, Lord Ganesh, and Lord Hanuman at the disputed property, therefore, Civil Court has jurisdiction to decide this case. Further, according to the pleadings of the plaintiffs, they were worshipping Maa Sringar Gauri, Lord Hanuman, Lord Ganesh at the disputed place incessantly since a long time till 1993. After 1993, they were allowed to worship the above mentioned Gods only once in a year under the regulatory of State of Uttar Pradesh. Thus, according to plaintiffs, they worshipped Maa Sringar Gauri, Lord Hanuman at the disputed place regularly even after 15th August, 1947. Therefore, The Places of Worship (Special Provisions) Act, 1991 does not operate as bar on the suit of the plaintiffs and the suit of plaintiffs is not barred by Section 9 of the Act."

With this, the Anjuman Islamia Committee's challenge to the maintainability of the suit has been rejected. Now, the suit of the Hindu worshippers will be heard further by the Varanasi Court.

Lingering Concerns

The Varanasi District Judge's ruling saying that the Gyanvapi suit is maintainable, and that the Places of Worship Act, 1991, does not apply to it, is bound to unsettle waters and cause a ripple of claims pertaining to other "places of religious significance and worship".

Apart from the Gyanvapi Mosque, there are already four other instances where the origin of various structures have been challenged before the courts despite the law: notably for the Qutub Minar complex, in New Delhi; a petition that sought to reclaim the 11th-century Bhojshala complex located in the district of Dhar, Madhya Pradesh; the writ petition about the Taj Mahal of Agra itself, and the 17th-century Mathura Shahi Masjid and Krishna Janmabhoomi in Mathura, UP, over which there are two cases pending before the Allahabad High Court and a local Mathura district court, Uttar Pradesh.

Qutub Minar.

(Photo: PTI)

The dismissal of the plea by the Allahabad High Court seeking the constitution of a fact-finding committee to research on the "real history" behind Taj Mahal, is an interesting case in point.

The petitioner had sought a direction to the Archaeological Survey of India (ASI) to open the sealed doors of over 20 rooms inside the Taj Mahal premises so that the alleged controversy pertaining to the "history of Taj Mahal" can be put to rest. However, the plea couldn’t see the light of the day, unlike the ‘Gyanvapi’ or the time-tested 'Babri’ Masjid case. The difference between them being that the Taj case was a writ petition in which the scope of securing evidence is more limited than in a suit.

What is worrisome, however, is that matters of religious fervour are being adjudicated in Courts of law, where far greater reliance on science and forensics ought to have been the basis for taking these cases forward.

The other big question is - how far can one go to correct an alleged 'historical wrong', and can our courts of Law deliver 'historical justice' and balance the 'secular' ethos of our Nation at the same time. Or even more pointedly, should our courts do so?

(Adeel Ahmed is an Advocate on Record at the Supreme Court. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses them nor is responsible for them.)