In the tapestry of India’s history, certain events stand as stark reminders of the intersection between religion, politics, and the law. The controversy surrounding the Gyanvapi Mosque, is one such intricate thread woven into the nation’s fabric. To understand the origins of this dispute and its resonance in modern times, we must first retrace our steps to the Babri Mosque in Ayodhya and the tumultuous legal judgement that followed. The aftermath of the Ayodhya judgement not only redefined the boundaries between history, religion, and legality but also paved the way for a series of challenges against other mosques, including the one in Gyanvapi. This article delves into these complex layers, dissecting the impact of court decisions on religious structures and the broader implications for a nation striving to achieve social harmony and sustainable growth. The Ayodhya judgementThe Supreme Court’s Ayodhya judgement was not a mere property dispute as embedded in it was an act of religious and political violence: the destruction of the Babri Masjid. By holding in favour of the Hindus, the court ignored the basic principles of restitution that parties must be restored to their original positions, where possible. The court could have ordered a status quo that prevailed before the demolition and then adjudicated the dispute, but it failed to do so. This (in)action of the court fuelled the ‘temple reclamation’ movement and its consequences can now be seen. The first stage of temple reclamation has become filing cases before the courts. It was expected that the Ayodhya judgement would settle the law, and no new claims or disputes would arise in the future. However, the Vishwa Hindu Parishad (VHP) has never backed down on its demand for the construction of Hindu temples in Varanasi, Mathura and several others.As Arundhati Roy writes in her book AZADI: Freedom. Fascism. Fiction., ‘‘The VHP has refused to back down on its past statements that it will turn its attention to other mosques. Theirs can be an endless campaign- after all, everybody came from somewhere, and everything is built over something.’’Gyanvapi mosque. Photo: Oasis.54515/Wikimedia commons CC BY-SA 4.0, The Gyanvapi rowThe Supreme Court is already hearing upon the constitutionality of The Places of Worship [Special Provisions] Act, 1991 passed during the heat of the Babri Masjid dispute in 1991. The law bans the conversion of any place of worship to preserve its character as it was during the time of independence of India. Despite being challenged before the Supreme Court, the Act still exists and is in force. Yet, a petition was filed by five Hindu women in April, 2022 before a Varanasi Court claiming their right to worship since they believed there exists a shivling under the Gyanvapi Mosque, which was constructed by Aurangzeb after destroying a temple. An archaeological survey of the mosque was ordered in May, 2022, led to an object resembling a shivling allegedly being found inside the mosque’s wazukhana (ablution pond).Consequently, an order was passed that namaz would not be allowed in the mosque; however, the Supreme Court ordered to restore the offering of namaz and preservation of the wazukhana, directing the Varanasi district judge to hear the matter.Also read: Gyanvapi Is a Litmus Test for the Sanctity of the Places of Worship Act. Our System Failed It.The petition of those five women was challenged by the Masjid Intazamia on the grounds of its maintainability itself that The Places of Worship Act, 1991 is in force, and such a petition cannot be entertained that seeks to convert any religious place of worship as barred by Section 3 of the Act. The district judge rejected this argument as he ruled that the law prevents the conversion of the place of worship, whereas, in this petition, the question is about the ‘determination and ascertainment of the character of the place of worship’, which is not barred by the Act. This interpretation that the district judge has provided for Section 3 is enough to open a floodgate of litigation before the courts.Furthermore, the State of Uttar Pradesh had enacted a legislation, namely, The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which defines a temple under section 4[9] which pertains to the temple of Adi Vishweshwar, popularly known as Sri Kashi Vishwanath temple, situated in Varanasi. Hence the Gyanvapi Mosque is to be considered a temple as per this law.While the apex court will determine the constitutionality of the 1991 Act, it is still valid and needs to be followed in the meantime. Similar trajectory in the Mathura caseThe Shahi Idgah Mosque in Mathura is the subject of more than a dozen cases. The first of these cases was filed in the aftermath of the Ayodhya judgement. Based on the court’s order in the Gyanvapi case, the petitioners requested a similar video survey of the mosque and the local court in Mathura agreed to hear the plea.As seen from the aforementioned cases, the courts seem to be developing a jurisprudence on religious conversions that is not grounded in the laws. Why are the courts acting in this manner?A possible reason why courts seem to be sympathetic to the Hindu cause may be that they want to respect the faith of the majority. They may also hold the opinion that even if they rule according to the law, people would be forced to bow down to societal pressures – like in the Sabarimala case where, ultimately, prevailing pressures led to only two women entering the temple, in the middle of the night, with government help and leading to multiple attacks afterwards.But while a frenzied mob can demolish the mosque on the spur of the moment, it would not have been possible to construct the temple without the help of the court and the state. Babri Masjid demolition The Babri Masjid demolition was soon followed by, what were then called, serial bomb blasts in Mumbai in early 1993 and began being called terrorist attacks after the 2001 attack on the twin towers in New York. India witnessed many terrorist attacks after the Babri Masjid demolition including the one in 2008 in Mumbai. Radicalisation of Islam and Muslim youth was an outcome of the Babri Masjid demolition and more such injustices are likely to elicit more reactions from the Muslim community. This is something that the judiciary must keep in mind when deciding the fate of Islamic historical religious structures.The Supreme Court in the Babri Masjid case stated that the principle of non-retrogression should be followed as the court will not undo the historical injustices by the previous rulers of the country or its parts thereof. ‘‘This Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate,’’ the court had said. It is unfortunate that this part of the judgement has been ignored by the lower courts which are encouraging litigations such as Gyanvapi and Mathura through favourable orders to the petitioners and thereby encouraging them to file more such cases that browbeat religious interests of the minority communities.The courts are supposed to be the custodians of the constitution. If they start giving in to the majority sentiment, the distinction between the judiciary and legislature will be lost. The legislature can still overrule the court like in the case of Shah Bano but the judiciary has to stand its ground.Vishnu Bandarupalli and Ayush Bajpai are students of law at NALSAR, Hyderabad and Sandeep Pandey is General Secretary, Socialist Party (India).
