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Note: This article was originally published on May 27, 2022 and republished on September 12, 2022 after a Varanasi court upheld the maintainability of a suit seeking the right to Hindu worship at the Gyanvapi mosque.
New Delhi: The destruction of a monument of political, cultural or religious significance erected by an earlier, defeated order followed by the erection of a new building upon its ruins was standard practice for emperors and kings of all faiths in history. Though the pedigree of a given artefact or architectural element could be open to doubt, India is full of monuments which bear traces and vestiges of earlier constructions. None of this is of any legal relevance to the religious character of a site, after the passing Places of Worship (Special Provisions) Act 1991.
The 1991 Act says that a mosque, temple, church or any place of public worship in existence on August 15 1947, will retain the same religious character that it had on that day – irrespective of its history – and cannot be changed by the courts or the government.
Parliament was well aware of the possible traces of history at many places of worship, and it intended to put an end to claims that seek to set the clock back. “In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.” This is what the Supreme Court said in one voice in its 2019 Ayodhya judgment, authored by five judges.
The Gyanvapi mosque in Varanasi was built upon a temple destroyed in 1669 on Aurangzeb’s orders and video surveys are hardly needed to identify Hindu features and motifs that are part of its masonry and structure. What matters in law is the status of the Gyanvapi mosque on August 15,1947. Its status as a mosque and a waqf was noted by a judgment of the Allahabad high court (AIR 1942 Allahabad 353, Din Mohammed and Ors. vs Secretary of State). Hindutva activists cite this judgment at their own peril.
In 1935 or 1936, some Muslim individuals went to court for a declaration to the effect that the enclosure outside the mosque was included in the dedicated waqf. During Eid and other special prayers, the congregation spilt over beyond the mosque into this enclosure. By its decree, the civil court recognised that the mosque itself, the plinth underneath and some adjacent portions were waqf but the enclosure around it was not. The issue in appeal was the status of this enclosure – which was held to be an area of public usage over which neither the Muslims (nor anyone else) could claim exclusive use, by ownership or by custom.
The Allahabad high court confirmed the findings of the civil court and also traced an instructive history of the administrative policy to protect the rights of both communities as they stood, in the area of the Gyanvapi site.
Following communal riots in 1809, a magistrate named Watson suggested exclusion of Muslims from the mosque in a letter to the vice president in council. His suggestion was turned down. The high court found a reference to this in a letter of March 28, 1810, written by a secretary to the government to the acting magistrate. Watson’s letter is quoted by those who want the Muslims ejected from the mosque but they omit to mention its summary rejection by the vice president in council.
Some passages of the aforesaid Allahabad high court judgment are worth noting:
“4. The learned Civil Judge found that the land under the mosque and its plinth was waqf land. He also found that some houses over and nearer the northern gate of the mosque had been in the possession of the mutwallis for over 12 years and might be considered as waqf. It was further established in his opinion that the Musalmans had been in the habit of celebrating an urs or memorial service once a year near two graves to the west of the mosque and of using the part of the open land occupied by ruins as a passage for going over the proof (sic) of the mosque (whatever that may mean). He gave the plaintiffs a declaration to the effect that they could use the waqf property for the purpose of their religious ceremonies and that they could use the land near graves to the west in order to celebrate the urs once a year and that they could use the land covered with ruins as a passage but also declared that they had had no right to offer ordinary, funeral or Alvida prayers on any portion of the land marked red in the plaint map which would be part of the decree, but they might, if they liked, offer prayers on the proof (sic) of the mosque and of a certain house occupied by a dhobi or washerman and in the house over the northern gate and the house to the east of the gate and over the plinth to the north of the mosque over which there existed many graves. I may mention that the portion marked red and in the plaint map is that part of the enclosure between the mosque itself and the surrounding houses or wall.
The plaintiffs appealed. The first question which naturally arises is whether the whole of the enclosure is wakf or dedicated land. The learned Civil Judge has gone into the history of this mosque and has come to the conclusion that it was built on the site of a Hindu temple which was demolished by the Emperor Aurangzeb in the seventeenth century. I do not think that it is necessary to go into the question of the origin of the mosque. It is sufficient to go back to the year 1809 when there was a serious riot between Hindus and Musalmans in that part of Benares where the mosque is situated. It appears from a letter from a Secretary to Government to the acting Magistrate of Benares written on 28rd March, 1810, that the previous Magistrate, Mr. Watson, had suggested that the Musalmans should be absolutely excluded from the mosque and that the Vice-President in Council disapproved of this suggestion. The vice-President based his opinion upon the obvious expediency of uniformly manifesting the strictest impartiality on the occurrence of any dispute between the Hindus and Musalmans. He pointed out that a departure from that principle would be productive of the utmost jealousy and discontent on the part of those who were excluded and would give rise to the most extravagant pretensions on the part of other party. He asserted that the authorities must depend for the maintenance of public tranquility on a firm and just confidence in the known intentions of Government to afford both parties equal protection in the exercise of their religious opinions and on the conviction that any violence or outrage on either side would infallibly meet its merited punishment. The Vice-President approved of the proposal of the acting Magistrate for re-establishing the exercise of the Hindu and a Mahomedan religion respectively at the place mentioned in his letter which seems to suggest that both parties were to be allowed to perform their legitimate ceremonies in the enclosure of this mosque.”
The 1942 judgment – which upheld Gyanvapi’s status as a mosque – binds all the current proceedings.
Even today, none of the Hindu worshippers deny that the mosque was in existence on August 15,1947, nor is it their case that a temple was converted to Muslim use only after that date. They do not deny that Muslim worship took place at the site on August 15, 1947 and thereafter. The only allegation is that the structure was not made by any waqf known to be set up by Aurangzeb and must not be treated as a mosque. This allegation has no meaning in the face of a judicial declaration that the mosque and the plinth upon which it stands is indeed waqf.
The Allahabad high court also declared that the enclosure around the mosque was to be a public space. In fact, the high court records that periodic intrusions into this space – whether by Hindus or by Muslims – were corrected by the administration, and idols were removed from this space on occasion.
Now, fast forward to 2022. The grievance of the plaintiffs in the current suits appears to be that the temple was demolished in 1669. A slew of suits have been filed seeking court orders to enable Hindu worship in the mosque area, and even for the removal of the mosque. It is self-evident that such pleas are pleas to change the religious character of the mosque. A belated suit claiming that the deity Vishvanath has title to the land on which the mosque stands is also awaiting a decision before the Allahabad high court on whether such a claim can be at all maintained. Given that the sole purpose of the 1991 law was that all such pleas and claims must cease, it is astonishing to see the sustained campaign against the mosque, with allegations of idols and their damage coming thick and fast.
Rani Ahilyabai Holkar built the present Vishvanath temple in 1777. This is the temple that is statutorily recognised by the Uttar Pradesh Kashi Vishvanath Temple Act 1983. In the course of upholding the vires of this Act, the Supreme Court (in 4 SCC 606 Shree Adi Vishveshvara vs State of UP, 1997) recognises that the original svayambhu jyotirlinga was carefully removed from the old structure and protected every time the temple was attacked. The deity in the temple Ahilyabai built is the statutorily recognised “jyotirlinga”, which any devotee of the Hindu faith would be loathe to deny. These are not issues that can now be reopened.
The Constitution Bench judgment in the Ayodhya case says this:
85…….”Section 4(1) clearly stipulates that the religious character of a place of worship as it existed on 15 August 1947 shall be maintained as it existed on that day. Section 4(2) specifically contemplates that all suits, appeals and legal proceedings existing on the day of the commencement of the Places of Worship Act, with respect to the conversion of the religious character of a place of worship, existing on 15 August 1947, pending before any court, tribunal or authority shall abate, and no suit, appeal or proceeding with respect to such matter shall lie after the commencement of the Act. The only exception in the proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on the ground that the conversion of the religious character of a place of worship had taken place after 15 August 1947 and such an action was pending at the commencement of the Places of Worship Act. (emphasis original)
None of the claims being pressed against the Gyanvapi mosque today fits the aforesaid exception. It is also worth noting that the conversion of the religious character of any place of worship (not only that which was in existence in 1947), or any attempt to do so is a criminal offence under section 6 of the 1991 Act.
Shadan Farasat is an advocate in the Supreme Court