Gyanvapi Mosque: 'Protect Shivling; No Restrictions on Rights of Muslim Devotees,' Says SC

The Supreme Court restricted part of the order passed by a local court in Varanasi a day prior which restricted entry into the mosque premises.

New Delhi: The Supreme Court on Tuesday, May 17, lifted the restrictions on entry into the Gyanvapi mosque, imposed by a Varanasi court a day prior.

On May 16, the counsel for the five Hindu women who filed the petition for the ongoing survey and inspection had told the Varanasi court that a ‘shivling’ had been found within the mosque premises, following which the court ordered that the area where it was found be sealed.

Civil Judge (Senior Division) Ravi Kumar Diwakar had told the Varanasi district magistrate (DM) to ensure that nobody accesses the area. The police commissioner and Central Reserve Police Force (CRPF) were also told to keep the area safe.

During Tuesday’s hearing in the Supreme Court, a bench of Justices D.Y. Chandrachud and P.S. Narasimha passed an interim order in which it directed the DM to protect the area where the ‘shivling’ was found, but to do so without impeding the access of Muslim devotees.

“In order to obviate any meaning and dispute on order of trial judge, the operation and ambit of the order dated May 16, 2022, shall stand restricted to the extent that the DM Varanasi shall ensure that the area where Shivling is found will be duly protected. The above direction shall not in any manner restrain or impede access of Muslims to the mosque or use of it for performing prayers and religious observances,” Bar and Bench quoted the judgement as saying.

It is important to note that the ‘shivling’ was reportedly found in a pond used for ‘wazu’ (ablution rituals). Senior advocate Huzefa Ahmadi, appearing for the Anjuman Intezamia Masjid committee (the mosques caretaking committee) asked for wazu to be categorically mentioned so as to leave no ambiguity as to what “religious observances” could mean.

Ahmadi also noted that the report of the survey committee, which was meant to be submitted on May 17, had not yet been submitted and that a plaintiff’s counsel had noticed the ‘shivling’ and had then filed an application.

“This is highly improper as the Commissioner report is supposed to be confidential until it is filed…Unfortunately the trial court entertains the application and marks an area which is to be sealed,” Live Law quoted Ahmadi as saying.

“Please see the manner in which order is passed. It is passed when the parties are there for execution of the commission. And on whose say? Not on the report of the Commission. On an application by plaintiff. Does it not show some element of lack of fairness,” he continued.

The court, in its interim order, also said that the restrictions on Muslim devotees which the Varanasi court had imposed will not operate and that the matter before the trial court will not be stayed.

Ahmadi, however, contended that all orders passed by the Varanasi court up to this point are not good in law. He objected to the basis of the case – the petition filed by five Hindu women who sought access to a supposed shrine within the Gyanvapi mosque complex – and contended that it went against the Places of Worship Act, 1991.

Also read: ‘Blatant Violation of Places of Worship Act’: Asaduddin Owaisi on Gyanvapi Mosque Order

The Places of Worship (Special Provisions) Act, 1991, says  the religious character of place of worship will continue as it existed on on August 15, 1947, and:

“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 same act says “conversion, with its grammatical variations, includes alteration or change of whatever nature.”

Ahmadi demanded that the Supreme Court pass an order for the status quo, as it was when the suit was filed, be maintained.

Solicitor general (SG) Tushar Mehta, appearing for the state of Uttar Pradesh, however, sought time to get instructions before any order is passed.

The top court set the next date of hearing as Thursday, May 19.

Advocate commissioner sacked

Following a heated discussion between the lawyers representing both parties during the hearing regarding findings from the survey being leaked, the advocate commissioner leader the survey, Ajay Kumar Mishra, was sacked by the Varanasi court hearing the plea, NDTV reported.

Mishra was sacked on the basis of a complaint filed by Vishal Singh, a lawyer who had been appointed as an additional advocate commissioner by the court on May 12. Singh was thereafter put in charge of the inspection.

Mishra accused Singh of “conspiring” against him, adding that he had been “betrayed”.

Singh had complained that Mishra had hired the videographer for the survey and it was reportedly this videographer who leaked details of the survey to the press.

“What can I do about it? I hired the photographer, he cheated,” NDTV quoted Mishra as saying.

Hindu Sena moves Supreme Court

The Supreme Court was hearing a special leave petition (SLP) by the Masjid committee appealing the decision of the Allahabad high court to allow the videographic survey and inspection of the contested religious site.

In the meantime, the president of the Hindu Sena filed an intervention application on the Mosque committee’s plea before the Supreme Court, seeking for the appeal to be dismissed.

The application contends that the near-by Kashi Vishwanath Temple as well as the Maa Shringar Gauri temple supposedly located within the Gyanvapi mosque complex come under the ambit of the  Ancient Monuments and Archaeological Sites and Remains Act, 1958.

Moreover, the application claims that several temples stood at the site in the past which were demolished and rebuilt until Mughal emperor Aurangzeb eventually destroyed the site in the 1600s and erected the Gyanvapi mosque.

Also read: By Allowing Gyanvapi Mosque Survey, SC Has Turned a Blind Eye Towards Injustice

Case background

The Varanasi court was hearing a plea by five Hindu women who sought access to the ‘Maa Shringar Gauri shrine’ supposedly located near the western wall of the mosque complex.

In April, the court had directed an inspection and videographic survey of the mosque premises, to be conducted by the court-appointed advocate commissioner Ajay Kumar Mishra and to be submitted by May 10.

However, the Masjid committee moved the Allahabad high court in April challenging the Varanasi court’s order. The appeal was, however, denied.

The inspection commenced on May 6 amidst widespread objections to videography within the mosque premises. The Masjid committee filed an application thereafter with the Varanasi court alleging bias on the part of advocate commissioner Mishra and seeking his replacement.

In its verdict on May 12, the court refused to stay the survey, nor did it remove advocate commissioner Mishra. However, it did appoint two additional advocate commissioners to assist in conducting the survey.

On May 16, as the survey was underway, the aforementioned ‘shivling’ was reportedly found, leading the Varanasi court to pass the order for the site of discovery to be protected and entry to the mosque complex to be restricted. 

The Supreme Court, on May 17, imposed the aforementioned restrictions on the Varanasi court’s order.