ON Friday, the Supreme Court interdicted the civil judge, Sambhal, from hearing a suit concerning the survey of Shahi Jama Masjid at Chandausi, Sambhal till the appeal filed by the management committee, Shahi Jama Masjid, Sambhal, is listed before the Allahabad High Court.
A two-judge Bench comprising Chief Justice of India (CJI) Sanjiv Khanna and Justice P.V. Sanjay Kumar passed the Order to this effect while hearing a special leave petition filed by the management committee, Shahi Jama Masjid, Sambhal challenging the Order of the civil judge on November 19, 2024, appointing an advocate commissioner for a survey of the mosque. The civil judge had passed the Order ex parte.
Article 136 of the Indian Constitution confers discretionary jurisdiction on the Supreme Court to grant special leave to appeal against any judgment, decree, determination, sentence or Order in any cause or matter passed or made by any court or tribunal in the territory of India.
At the outset, the Bench said even though it had reservations about the Order of the civil judge, it would advise the petitioner to approach the high court first. The Bench added that it would, however, keep the special leave petition pending with it.
The Bench also directed that the survey report of the advocate commissioner should be kept in a sealed cover.
Further, the Bench asked the Uttar Pradesh government to ensure peace and harmony are maintained in the town and that the government behaves in an “absolutely neutral” manner. The Bench suggested the formation of a peace and harmony committee in the town.
Senior advocate Huzefa A. Ahmadi appeared for the petitioner, assisted by advocate-on-record Fuzail Ahmed Ayyubi.
Explaining the reason for coming directly to the Supreme Court, Ahmedi said ten such suits are pending all over the country. The modus operandi, Ahmedi said, is that a survey is ordered and then a “story is built”.
CJI Khanna asked Ahmedi to make these arguments in a matter that is pending before the Supreme Court in an appeal. Possibly, Justice Khanna was referring to the Shahi Idgah–Krishna Janmabhoomi dispute.
Building a story?
In the Shahi Jama Masjid, Sambhal case, the suit has been filed by eight plaintiffs claiming that the mosque is actually ‘Shri Hari Har Temple’. Among other things, the plaintiffs are seeking directions to the effect that they have a right to access the Jama Masjid. They are also seeking an injunction against the defendants, the management committee of the mosque, from creating any hurdle in accessing the mosque.
The suit was accompanied by an application seeking the appointment of an advocate commissioner to conduct a survey of the mosque. The suit was filed on November 19, 2024. On the same day, Judge Aditya Singh passed an ex parte Order appointing an advocate commissioner for the survey of the mosque.
In their petition before the Supreme Court, the masjid committee said that within two hours of the Order of the civil judge, the advocate commissioner, along with the plaintiffs’ advocates and police force, arrived at the mosque, which is situated nearly 30 kilometers away from the court premises, for conducting a survey of the mosque. The survey, which started at 6 p.m., continued till 8:30 p.m.
“While the petitioners were preparing for their legal remedies against the ex parte Order and the survey on November 19, 2024, just before the midnight of November 23–24, 2024, the circle officer came to inform the president of the petitioner committee that suddenly another survey will be conducted the next morning, i.e., November 24, 2024,” the petition reads.
It adds: “Before the petitioner had the occasion to fully comprehend and avail any remedies against the second survey, by 6:15 a.m. on November 24, 2024, along with heavy police presence and advocates of the plaintiffs, the survey commissioner arrived and commenced the survey.
“At that time, worshippers/namazis who were present in the mosque for dawn/fajr prayers were asked by the survey commissioner to leave the premises immediately.”
The petitioner contends that the hot haste in which the matter proceeded and a subsequent survey was suddenly conducted, gave rise to apprehensions in the minds of the residents of the area, which brought them outside their houses.
During the second survey, the Sambhal town witnessed violence on November 24 leaving four dead and many injured. The locals allege that the four youths died from police bullets, whereas the police have denied the claims.
The petition asserts that since the rampant ordering of surveys where belated claims on mosques are made is emerging as a pattern, it has become necessary for the Supreme Court in the interest of the constitutional goal of fraternity and to do complete justice, to pass directions that surveys should not be ordered and executed as a matter of routine in cases involving different communities over places of worship without hearing the defendants and without allowing sufficient time to the aggrieved persons to seek judicial remedies against the Order of survey.
Places of worship
One of the contentions raised by the masjid committee is with regard to the Places of Worship (Special Provisions) Act, 1991. This Act was enacted by the Parliament to prohibit the conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on August 15, 1947 and for matters connected therewith or incidental thereto.
The Ayodhya Babri Masjid–Ram Janmabhoomi dispute was excluded from the application of the Act. Subsequently, in 2019, the Supreme Court ruled in favour of the Hindu side in the Ayodhya dispute and ordered that the Muslim side be given five acres to rebuild the demolished mosque elsewhere.
In the judgment, the five-judge Bench said that the Places of Worship Act had been enacted in 1991 by the Parliament to protect and secure the fundamental values of the Constitution.
The Bench observed: “The State has, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution.
“The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution.”
The Bench added, “In providing a guarantee for the preservation of the religious character of places of public worship as they existed on August 15, 1947 and against the conversion of places of public worship, the Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered.”
Measures by the state government
Meanwhile, the Uttar Pradesh government has formed a three-member judicial inquiry commission headed by a former judge of the Allahabad High Court Devendra Kumar Arora to:
i) inquire whether the incident of violence was sudden or was well planned and the result of a criminal conspiracy,
ii) inquire into the arrangements made by the district administration and police for maintaining law and order during the incident and other aspects related thereto,
iii) ascertain the reasons and circumstances due to which the said incident took place, and
iv) give suggestions regarding the non-recurrence of such type of incident in future.
The commission has been asked by the government to submit its report within two months.