Gyanvapi mosque committee moves Allahabad HC: What is the order they’ve challenged

The case so far

Last year, five women filed a civil suit seeking enforcement of their right to worship deities within the Gyanvapi mosque complex. In April, the Civil Judge (Senior Division) allowed a video survey of the mosque where a Shivling was said to have been found in the wazukhana. The Anjuman Intezamia moved the Supreme Court, arguing that the proceedings were an attempt to change the religious character of the mosque. The Places of Worship Act, 1991 bars the conversion of the religious character of a place of worship from how it existed on August 15, 1947.

On May 20, the Supreme Court, underlining the “complexity of the issues involved in the civil suit”, transferred the case to the District Judge. The SC subsequently said it would intervene only after the District Judge had decided on the preliminary aspects of the case.

Preliminary ruling

District Judge Vishvesha ruled that he did not find any law that barred the petitioners from filing such a suit.

Under the Code of Civil Procedure, in the initial stage, averments made in a suit must be prima facie accepted without going into the veracity of the claims, unless such a suit is barred by law. Once the suit is accepted, the onus of proving the claims would be on the plaintiffs.

The mosque side had argued that the suits were barred under three specific laws.

The Places of Worship Act, 1991: Section 4 of the Act is a declaration that “the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day”. The provision states that if “any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on [that day]… is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority”.

The Muslim side argued that allowing the civil suits would alter the character of the mosque as it has existed for over 600 years. The Hindu petitioners argued that until 1993, regular prayers were offered inside the Gyanvapi mosque complex to Hindu deities — and since 1993, prayers have been allowed on a designated day annually. Relying on the argument that even after August 15, 1947, the religious character of the Gyanvapi mosque allowed for prayers to Hindu deities, the Varanasi court said in its order that the Places of Worship Act does not bar the civil suit.

In May, the Supreme Court too had observed that “finding the nature of the religious place” is not barred under the 1991 law. “But the ascertainment of a religious character of a place, as a processual instrument, may not necessarily fall foul of the provisions of Sections 3 and 4 (of the Act)… These are matters which we will not hazard an opinion in our order at all,” Justice D Y Chandrachud had said.

The court will now have to look into evidence on the situation in 1947 before deciding on the issue. Legal experts have pointed out that this is a tricky reading of the law since such broad claims can be made in civil suits, opening the door for a wider religious divide in the country.

The Wakf Act, 1995: The Muslim side argued that the subject matter of the civil suit is a Wakf property and, according to Section 85 of the Act, only the Wakf Tribunal, Lucknow, can decide the suit. The mosque made two submissions to prove that the mosque is built on Wakf property. First, that it is published in the Varanasi gazette that the mosque is built on Wakf land; and second, that the Allahabad High Court has held that land that is used from time immemorial for a religious purpose, such as for a mosque or Muslim burials, would be dedicated to God almighty, and would be treated as Wakf.

But the court agreed with two arguments made by the petitioners to decide that the suit is not barred by the Wakf Act.

First, it relied on rulings which held it could “never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims”. The Wakf Act, according to the court, is to solve disputes within the community and not to extinguish claims from outside the community. Second, the court agreed with the petitioners that since the land belonged to the deity Adi Vishveshwar from time immemorial, it could have never been Wakf property.

Kashi Vishwanath Temple Act, 1983: The Muslim side also challenged the civil suits on the grounds that under this Act, the “temple land” was clearly demarcated, and that the Board of Trustees appointed under law did not interfere in the case.

The court cited Section 4 (9) of the Act, which defines “Temple”, to hold that it does not bar the mosque premises. The provision defines the temple as “the Temple of Adi Vishveshwar, popularly known as Sri Kashi Vishwanath Temple…which is used as a place of public religious worship, and dedicated to or for the benefit of or used as of right by the Hindus, as a place of public religious worship of the Jyotirlinga and includes all subordinate temple, shrines, sub-shrines and the Asthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto…”.