The court also ordered the continuance of its earlier interim order ensuring protection of the ‘Shivling’ as well as free access of Muslims to the mosque.
BEFORE breaking for its summer vacation, the Supreme Court earlier today directed the transfer of the suit concerning the Gyanvapi mosque, located next to the Kashi Vishwanath temple, from the civil judge to the Varanasi district court. The Supreme Court was of the view that given the sensitivity of the matter, it should be heard by a senior and experienced judicial officer of Uttar Pradesh Higher Judicial Service. The order was passed by a special bench comprising Justices D.Y. Chandrachud, Surya Kant and P.S. Narasimha.
The bench extended its interim order directing the protection of the ‘Shivling’ and free access of Muslims to the mosque for prayers or any other religious activities. The bench said its interim order would operate till the district judge decides on the maintainability of the suit, and eight weeks thereafter to enable the aggrieved parties to challenge the same before the appropriate court.
The bench directed the district judge to decide on a priority basis the application filed by the Committee of Management, Anjuman Intezamia Masjid Varanasi, against the maintainability of the suit. The suit, filed by five plaintiffs, seeks a decree declaring that they are entitled to darshan, pooja and perform all the rituals of Maa Srinigar Gauri, Lord Ganesh, Lord Hanuman and other visible and invisible deities allegedly within the premises situated at settlement plot no. 9130 in the area of ward and Police Station, Dashwamedh, Varanasi district, that is, the Gyanvapi Mosque.
It also directed the District Magistrate, Varanasi to make alternate arrangements for wazu (that is, ablutions before offering prayers at the mosque) after consulting the parties. The matter will now be heard by the Supreme Court in July.
Justice Chandrachud, heading the bench, remarked that the court has to create a framework to maintain peace and an atmosphere of fraternity between communities as envisaged by the Constitution, and it is our duty to uphold that message.
Senior advocate Huzefa Ahmadi, for the Masjid Committee, sought to argue that the order passed by the trial court appointing a commissioner for surveying the mosque complex itself was barred by thePlaces of Worship (Special Provisions) Act, 1991. He alleged that the reports of the commissioner were being selectively leaked to the media. He urged the court to quash all the three orders passed by the trial court and also to set aside the high court order upholding the appointment of the commission. He submitted that if the court does not intervene, similar such mischief will be raked up as regards other structures too. The submission, however, did not find favour with the court, which said that it cannot decide suo motu on the maintainability of a suit, as it has to follow due process of law.
During the hearing, Justice Chandrachud also remarked that the Places of Worship Act does not bar the ascertainment of religion. He illustrated it by giving an example: Suppose there is an Agyari (fire temple), with a cross present in it. Does the presence of a cross not make the place an agyari? Does the presence of a cross make it a Christian place of worship? Such hybrid nature is not unknown in India, he said.
Senior advocate C.S. Vaidhyanathan, appearing for the plaintiffs, sought dismissal of the appeal by the masjid committee since, according to him, the appeal had become infructuous for the court commissioner had already conducted the survey. He was joined by senior advocate Ranjit Kumar in seeking dismissal of the appeal.
The appeal at the Supreme Court contends that the proceedings being sub-judice at the High Court, the new suit filed in 2021 is an abuse of the process of law.
It adds that “it is a settled law that local inspection or Commission by the court is made only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or Commission. It cannot be claimed as a right by any party”.
It also argues that the Advocate Commissioner for local inspection could not have been appointed upon the suggested choice of the plaintiffs.