The legal test before the civil court in Varanasi and the Supreme Court is whether a title suit can exist on the Kashi Vishwanath-Gyanvapi mosque disputed site since the Places of Worship (Special Provisions) Act, 1991, puts a constitutional bar on it. Section 3 and Section 4 of the 1991 Act essentially declare that the religious character of a place of worship, barring the one at Ayodhya, shall continue to be the same as it was on August 15, 1947, and that no person shall convert any place of worship of any religious denomination into one of a different denomination or section. This is the constitutional bar under the Places of Worship Act, 1991 which forms the basis of deciding the title of the disputed site. While hearing a plea challenging the maintainability of the Gyanvapi suit, the Supreme Court had in May 2022 observed that “finding the nature of the religious place” is not barred under the 1991 law. “…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)…,” it had said. Essentially, this ascertainment is limited to 1947 and not prior to the construction of the mosque itself. The Supreme Court is, however, yet to hear final arguments to decide whether the 1991 Act bars even the filing of such a plea. So far, only oral observations have formed the basis of this argument but the Court is yet to conclusively rule on the issue. Separately, a constitutional challenge to the 1991 Act is also pending in the Supreme Court. It had in 2019 indicated the case could be referred to a larger constitution bench. However, the Centre is yet to file a response in the case. Though the voluminous Archaeological Survey of India report submitted to the Varanasi court, and to both the parties to the dispute now, suggests “there existed a Hindu temple prior” to the Gyanvapi mosque, it would be considered expert evidence that could be contested in Court. Essentially, Courts will have to determine first whether the ASI report can be relied upon conclusively and then what does the existence of a Hindu temple mean to the religious character of the mosque on August 15, 1947. A similar ASI report in 2003 was cited in the Babri Masjid-Ramjanmabhoomi suit. While pronouncing its order in November 2019, the Supreme Court had rejected the ASI report as inconclusive. “The report concludes on the basis of the architectural fragments found at the site and the nature of the structure that it was of a Hindu religious origin. The report rejects the possibility (urged by the Sunni Central Waqf Board) of the underlying structure being of Islamic origin. But the ASI report has left unanswered a critical part of the remit which was made to it, namely, a determination of whether a Hindu temple had been demolished to pave way for the construction of the mosque. ASI’s inability to render a specific finding on this facet is certainly a significant evidentiary circumstance which must be borne in mind when the cumulative impact of the entire evidence is considered in the final analysis,” the Supreme Court had said in its Ayodhya judgement.
