The Supreme Court on Tuesday asked the Hindu women plaintiffs in the Gyanvapi mosque case to move a proper application for demanding an archaeological survey of a section in the mosque where the Hindu side insists a Shivling has been found, while the Muslims says it is part of a fountain in an ablution tank.
A bench, led by Chief Justice of India Dhananjaya Y Chandrachud, asked senior counsel Madhavi Divan to file a formal application after the latter made a request for a survey of the area has remained sealed under the order of the top court.
“You file a proper application and then, we will see,” the bench, which also comprised justices JB Pardiwala and Manj Misra, told Divan, who appeared for the Hindu women plaintiffs. To be sure, an order of survey would mean modification of the May 2022 order of the top court.
By an order in July, the Varanasi district court had ordered an extensive survey of the Gyanvapi mosque by the Archaeological Survey of India (ASI) to ascertain whether the mosque was built over a pre-existing Hindu temple, holding that the scientific investigation was “necessary” for the “true facts” to come out.
The court order excluded the sealed area.
While the high court upheld this order, the top court, in September, refused to halt the ASI survey of the mosque and added that the agency will carry out its survey only using non-invasive methods. The ASI survey has since been completed.
Also Read: ASI plea for not disclosing Gyanvapi report for 4 weeks partially allowed
Divan, on Tuesday, told the bench that her clients want to press for a survey of the area that has remained sealed following the order of the top court in May 2022.
“The area that is sealed is of utmost sacredness to us because our case is that it has a Shivling. A survey was ordered by the trial court but the area under seal has been excluded. We will be making a request for a survey of the sealed area,” she said.
Responding, senior lawyer Huzefa Ahmadi, representing the Gyanvapi mosque management committee, said that they would respond to the application after it is filed by the other side.
Meanwhile, the bench on Tuesday allowed a plea by the Hindu women plaintiffs, seeking a directive to the Varanasi district magistrate for cleaning a section in the mosque where the Hindu side insists a Shivling has been found, while the Muslims says it is part of a fountain in an ablution tank.
Four of the five women plaintiffs, who had filed a suit in a local court in Varanasi in 2021 pressing for their right to worship deities inside the Gyanvapi mosque complex complained of the dead fish in the tank, causing foul smell.
The court took on record that there was no objection from the mosque management committee to the cleaning of the water tank in the area sealed under the orders of the court. It directed that the tank be cleaned under the supervision of the Varanasi district magistrate.
The application, filed by advocate Vishnu Shankar Jain on behalf of the Hindu side, stated, “Since there exists Shivlingam which is sacred to Hindus and should be kept away from all dirt, grime, dead animals, and must be in clean condition, is currently in the midst of dead fish which is hurtful to the sentiments to the devotees of Lord Shiva.”
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 by the committee has challenged the May 2022 order of the Varanasi court directing a full survey of the mosque complex through an advocate commissioner. After the 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.
In September 2023, 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.
While the mosque management committee banks on the provisions of the 1991 Act to challenge all proceedings relating to the religious character of the Gyanvapi mosque, the law has, however, not prevented a spree of litigations in recent months, which include several suits regarding the Gyanvapi mosque in Varanasi and Sri Krishna Janmabhoomi-Shahi Idgah dispute in Mathura.
The Varanasi district judge is holding a joint trial of eight suits claiming the existence of Hindu idols inside the Gyanvapi mosque whereas 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.
