SC observes trial required to determine religious nature of Gyanvapi mosque

The 1991 Act locks the “religious identity” of any place of worship as it existed on August 15, 1947, with the exception of the Ram Janmabhoomi-Babri Masjid.

It may need a trial to determine the religious nature of the place where the Gyanvapi mosque stands in Varanasi, the Supreme Court observed on Friday, even as the mosque management committee pressed that any suit seeking the right to worship Hindu deities inside the complex or title of the land was absolutely barred under the law.

Due to paucity of time, the bench adjourned the hearing of the matter to October 16. (Pic for representation)

“You are saying you are covered by the Places of Worship Act, 1991. You say you cannot alter the status as it existed as on August 15, 1947, and it cannot be converted also. Therefore, what was the religious character also has to be led by evidence. Is it not?” a bench, led by Chief Justice of India Dhananjaya Y Chandrachud, asked senior counsel Huzefa Ahmadi, who appeared for the Anjuman Intezamia Masjid Committee, which manages the 17th century mosque.

Ahmadi maintained that the suit filed by some Hindu women seeking right to worship was “ex facie barred” because their plaint too states that it is a mosque.

But the bench, which also included justices JB Pardiwala and Manoj Misra, replied: “You are saying it is barred by the 1991 Act..It will have to be seen at evidence in trial.”

Senior advocate Madhavi Divan, appearing for some of the Hindu women plaintiffs, said that she would be opposing any plea to halt the proceedings before the Varanasi civil court on the ground of maintainability of their suit.

Due to paucity of time, the bench adjourned the hearing of the matter to October 16.

The 1991 Act locks the position or “religious identity” of any place of worship as it existed on August 15, 1947, with the exception of the Ram Janmabhoomi-Babri Masjid and barred any court from entertaining a matter that seeks to alter the religious nature of that place.

This has, however, not prevented a spate of litigations in recent months, which include several suits regarding the Gyanvapi mosque in Varanasi and Sri Krishna Janmabhoomi-Shahi Idgah dispute in Mathura. While the Varanasi district judge is holding a joint trial of eight suits claiming the existence of Hindu idols inside the Gyanvapi mosque, there are 10 suits pending before a Mathura trial judge relating to Sri Krishna Janmabhoomi-Shahi Idgah dispute. Meanwhile, a batch of petitions – some seeking to scrap the 1991 Act and some others asking for tight enforcement of the same law-- have remained pending before the top court since March 2021.

The Supreme Court is seized of a bundle of petitions filed by the mosque management committee, challenging the spot inspection and order of scientific survey of the mosque complex, as well as order upholding the maintainability of the suits.

Through its petition, the mosque management committee endeavours to bar all claims over the access to the mosque or title of the Gyanvapi complex, relying on the 1991 law. Section 3 of the Act imposes a prohibition on individuals and groups of people against converting, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination -- or even a different segment of the same religious denomination.

It had earlier sought to get the case thrown out under Order VII Rule 11 of the Civil Procedure Code (CPC). But last September, the Varanasi district judge dismissed the committee’s application. This judgment was upheld by the Allahabad high court in May, compelling the committee to approach the Supreme Court.

The other petition has challenged the May 2022 order of the Varanasi court directing a full survey of the mosque complex through an advocate commissioner. After the mosque management committee challenged this before the top court, the bench declined to stop the survey but directed that the section of the complex where the “Shivling” was reportedly found shall remain protected, adding Muslims would also have the right to offer namaz in other sections of the mosque without any hindrance.

On May 20, 2022, the Supreme Court transferred the suit from a civil judge to the Varanasi district judge, citing the “complexities and sensitivities involved in the matter”. It further asked the district judge to decide on priority the application of the mosque management committee under Order VII Rule 11 of the CPC that challenged the maintainability of the suit.

Last month, the apex court refused to halt the ASI survey of the mosque, observing that it could not find fault with the district court’s order of July 21, nor would it interfere with every interlocutory direction passed in the case. The bench held that the order of the Varanasi district judge could not be construed to be without jurisdiction since the CPC empowered a court to issue a commission for a scientific investigation, the report of which was subject to be argued and tested at the time of the trial.

At the same time, the bench noted that the high court was correct in introducing some additional safeguards to circumscribe the order of the district judge, which included the directions passed to ensure there would be no excavation at the site, nor destruction of any part of the existing structure. The top court added that ASI would carry out its survey only using non-invasive methods.