SC to check maintainability of Hindu side’s plea on Gyanvapi Mosque

`New Delhi: The first question to be determined in a petition filed by a group of women demanding the right to worship Hindu deities inside the Gyanvapi mosque complex will be its maintainability, The Supreme Court said on Tuesday after the mosque management committee argued that the suit was completely barred by the Places of Worship Act, 1991.

The Act locked 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.

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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.

On Tuesday, a bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud noted that although there were two petitions filed by the mosque management committee, the primary issue of determination would be whether the suit filed by Hindu plaintiffs in 2021 was maintainable or not.

“The first issue would be whether their suit is barred or not. We will keep the Order VII Rule 11 matter first because that’s the first and foremost matter to be decided... We will have to read their plaint to see if it’s barred or not,” the bench, which also included justices JB Pardiwala and Manoj Misra told senior counsel Huzefa Ahmadi, who represented the mosque management committee.

Ahmadi, who represented the Anjuman Intezamia Masjid Committee which manages the 17th century mosque, argued that both the petitions filed by them have maintained that the suit is barred by the 1991 Act, and therefore, all orders passed by the Varanasi district court in the suit were bad in law. He pointed out that one of the petition related to the appointment of an advocate commissioner in May 2022 for a survey. Next month, a section of the mosque complex was ordered to be sealed after Hindu plainitiffs claimed that a “Shivling” was seen at the bottom of a tank during the survey. The committee claims it’s part of an ablution fountain.

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Senior advocate Madhavi Divan, appearing for some of the Hindu women plaintiffs, said that much water has flowed under the bridge since the April 2022 order of the Varanasi court, and that an extensive survey by the Archaeological Survey of India (ASI) was underway to determine if the 17th century structure was built upon a pre-existing temple.

As Ahmadi sought adjournment of the matter, the bench deferred the hearing to the third week in October, directing that both the petitions filed by the committee will be listed together on the next date.

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 will 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 cannot 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 cannot be construed to be without jurisdiction since the CPC empowers a court to issue a commission for a scientific investigation, the report of which is 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 will be no excavation at the site, nor would there be destruction of any part of the existing structure. The top court added that ASI will carry out its survey only using non-invasive methods.