The Gyanvapi Mosque Case, the Places of Worship Act & Connected Concerns

A mosque. A mandir. And an ongoing court case. These three motifs might be too familiar for comfort.

But the Gyanvapi mosque case is a little different from the Babri Masjid-Ram Janma Bhumi case, the history of which is steeped in communal hate and political discord.

Because, in the Gyanvapi mosque case, the petitioners have not yet asked for their own Hindu temple in place of the mosque, only that they be entitled to perform daily darshan, pooja, and other Hindu rituals at the site of Maa Shringar Gauri, Lord Ganesh, Lord Hanuman, and other "visible and invisible deities within old temple complex” — which is essentially part of the mosque.

And yet this case does not seem to be without cause for concern.

But before that, what is the case about, and what is going on right now?

The Case So Far...

The location of Gyanwapi Mosque in Uttar Pradesh’s Varanasi is adjacent to the Kashi Vishwanath temple. It is believed that it was built in the seventeenth century after the demolition of an existing Vishweshwar temple.

According to The Indian Express, some historical accounts suggest that the plinth of the temple and one of the walls was left untouched. The wall thereby went on to become the qibla wall, which is the most important wall in a mosque that faces Mecca.

The neighbouring, present-day Kashi Vishwanath Temple is believed to have been constructed after more than 100 years of the mosque’s construction.

Many Hindus, reportedly, are of the opinion that the original lingam of the erstwhile Vishweshwar temple was hidden away in an adjoining Gyanvapi well during a raid by Mughal emperor Aurangzeb.

In the present petition, five Hindu women have sought round-the-year access to pray at “a shrine behind the western wall of the mosque complex”. The site is currently made open for Hindu prayers once a year.

A Varanasi court had in April ordered a video inspection of the site, but the survey could not take place as the mosque committee opposed the videography inside the mosque, and accused Advocate Commissioner Ajay Kumar Mishra of bias and demanded his replacement.

The local court, however, on Thursday, 12 May, ordered that the survey work will continue, and in stead of replacing Mishra, appointed two more lawyers — Vishal Kumar Singh and Ajay Singh — to accompany him.

Meanwhile, a petition was filed in the Supreme Court against the Varanasi court’s survey order, which has now been listed before a bench headed by Justice DY Chandrachud.

But What’s the Concern?

Dubbing Thursday’s order of the Varanasi court to allow the survey and videography inside Gyanvapi mosque to continue a “blatant violation” of the Places of Worship Act, 1991, All India Majlis-E-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi told ANI:

“The order of the court is a blatant violation of the Places of Worship Act 1991. It is a violation of Supreme Court judgment given in the Babri Masjid title dispute.”

Owaisi’s opinion was also echoed by Congress leader P Chidambaram, who, on his part, told ANI:

"Places of Worship Act was passed by the PV Narasimha Rao government with the only exception to Ram Janmabhoomi. All other places of worship should remain in status as they are. We shouldn't change status of places of worship (as) it will lead to huge conflict.”

What Does the Places of Worship Act Say?

Section 3 of the Places of Worship (Special Provisions) Act, 1991, bars conversion of places of worship.

This means that no person shall convert any place of worship of any religious denomination into a place of worship of a different religious denomination.

Conversion, under section 2(b), “with its grammatical variations, includes alteration or change of whatever nature.”

Section 4 of the same Act declares that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day. This basically means that if a building was a temple on 15 August 1947, it cannot be turned into a mosque in the future and vice versa.

The singular exception to these provisions, as stated in section 5 of the Act, was the Ram Janma Bhumi-Babri Masjid conflict.

How Does the Places of Worship Act Apply in This Case?

Elaborating on the points made by Owaisi and Chidamabaram, former Allahabad High Court Judge Amar Saran told The Quint:

“The objective of the plaintiffs appears to be to unearth some Hindu artefacts from the campus of the mosque. But the plaint itself says that the plot in question was illegally appropriated by Aurangzeb for erecting the Gyan Vapi mosque. This confirms that members of the Muslim community and the mosque was on the plot on 15 August 1947, and therefore Places of Worship Act will apply.”

Besides (retired) Justice Saran said the fact that the suit has been filed stating that the Hindus had permission to worship their deities on one day of the year in the mosque campus and that they would like continuous permission to do the same indicates that they were not in continuous possession of the plot or even a portion of it on and since 15 August 1947.

“Otherwise they could have simply carried out their religious activities without seeking permission or filing a suit for the same,” Justice Saran said, before adding:

“Therefore this admission as to the factual position and prayers to recite perform Hindu rituals at the spot amounts to an attempt to utilise the legal and administrative process for converting the mosque into a Hindu place of worship post 15 August 1947.”

The former judge also asked: “If that part outside the western wall had no connection with the mosque, then why would only once a year access be allowed there for Hindu prayers?”

Under section 3 read with sections 4 and 6 of the Places of Worship (Special Provisions Act 1991), any change or even attempted conversion of the religious character of a place of Worship to another religion, which is different from its status on 15th August 1947 is punishable with imprisonment upto 3 years and fine.

But conversion is not a problem in the Places of Worship Act alone.

According to section 16(1) of The Ancient Monuments and Archeological Sites and Remains Act, 1958:

A protected monument maintained by the Central Government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character.

As per the former High Court judge, "using a mosque or part thereof for Hindu prayers amounts to converting the basic nature as it amounts to using a place of worship or a shrine ‘for any purpose inconsistent with its character’".

Is the Court’s Interim Order Allowing a Mere Survey a Problem?

“The plaintiffs might wish to locate signs of idols, paintings or other Hindu symbols for building up their claim, that the mosque has come into existence where there must have earlier been a Hindu temple,” Justice Saran said. “But consequent to the 1991 Act, which has been introduced for ending interminable communal disputes and disharmony, this claim cannot be raised now.”

Therefore, he said that, “as first step the pending application under Order 7, Rule 11, should be decided as to whether the plaint is even maintainable on the ground that the Gyan Vapi mosque in its present form, existed on Independence Day, 1947 on the disputed land.”

He noted that this is even if the mosque was built by 'Muslim invaders', all those years ago, by occupying a temple.

Further, observing that sections 6(2) and 6(3) also include attempts and abetments of conversion of places of worship, the retired judge told The Quint:

“In that view the lower courts are complicit in perpetrating an illegality and in contempt of the Ayodhya decision.”

The Supreme Court had in the Ayodhya judgment praised the Places of Worship Act and said that “non-retrogression is a foundational feature of the fundamental constitutional principles, of which secularism is a core component.”

And Why is This of Consequence?

“The case has grave consequences, because encouraged by cognisance being taken in this matter and a suit being entertained where interim directions for survey of the property by advocate commissioners or other directions are issued, the apprehension is that such polarising contests over places of worship will be carried out incessantly.”

Justice Amar Saran

As pointed out by SA Iyer, in an article for The Times of India, history is rife with conquests changing the character of places of worship.

In Indian history, several mosques were also converted into temples, mainly during the time of partition — Sonipat’s Jama Masjid into a Durga Mandir, Aurangabad’s Jama Masjid into a Bharat Mata temple, Hisar’s Dana Shir mosque into a Bhagwan Danasher temple etc.

However, Iyer notes, “the answer cannot be to re-fight every historical battle — that will stoke eternal religious conflict.”

Meanwhile, on Saturday afternoon, photographs trickled down to our screens from Varanasi.

They showed a team of advocates, with their black coats, white tie, a red teeka firmly between their brows, and a bevy of uniformed security personnel in a crowd behind them, making their way to the Gyanvapi Masjid complex to resume their videographer survey.