A Bench led by Chief Justice of India (CJI) D Y Chandrachud put on hold until July 26 the order of a Varanasi district court that had directed ASI to carry out a “scientific” survey of the mosque premises. The top court also asked the mosque committee to move the Allahabad High Court against the district court’s order before the expiration of the interim stay order.
The decades-old litigation around the 17th century mosque built by Aurangzeb allegedly after destroying the original Kashi Vishwanath Temple, has gained momentum over the last year or so after five Hindu women sought the right to worship Maa Shrinagar Gauri on the outer wall of the mosque complex.
The matter has since moved from a magistrate’s court to a district court, to the Allahabad High Court and the Supreme Court, and back to the district court.
What was the Varanasi court’s order?
On July 21, the Varanasi court asked for a “scientific investigation/ survey/ excavation” of the mosque premises by the ASI. District and Sessions Judge Ajaya Krishna Vishvesha asked the ASI to conduct a “ground penetrating radar survey just below the three domes of the building in question and conduct excavation, if required”.
The court directed the ASI Director to “find out…whether the [present structure] has been constructed over a pre-existing structure of a Hindu temple”, and to “prepare a list of all the artefacts which are found in the building specifying their contents and carry out scientific investigation and undertake dating exercises to find out the age and nature of construction”.
How did the court take up this matter?
The July 21 order of the Varanasi district court came in the civil suit filed by the Hindu women seeking the right to worship Maa Shringar Gauri.
The court clarified that the survey would exclude the wuzu khana, or ablution area, which was sealed last year on the orders of the Supreme Court after Hindu litigants claimed that they had identified a Shivling there. However, the Muslim defendants in the litigation contended that the object that had been found was a fountain.
The district court directed that the survey proceedings be videographed and the report be submitted before August 4. The court had agreed to hear the present plea for an ASI survey on May 16 this year, after an order by the Allahabad High Court.
What did the High Court order?
On May 16, 2023, the Allahabad High Court ordered a “scientific survey”, including carbon dating, of the “Shivling” that was claimed to have been found during an earlier videographic survey last year.
The petitioners, Laxmi Devi and three others, had approached the HC after the Varanasi district judge rejected their plea for a scientific survey and carbon dating of the “Shivling” on October 14, 2022. The petitioners prayed for a survey “to find out the nature of construction beneath the Shivlingam discovered on 16.05.2022”.
The videographic survey was conducted on an order passed by the Civil Judge (Senior Division), Varanasi, Ravi Kumar Diwakar, on April 8, 2022 on the plea by the five women. The three-day survey that ended on May 16, 2022, was carried out in the presence of court-appointed Advocate Commissioners, lawyers from both sides, all concerned parties, and officials.
How did the Supreme Court enter the picture?
The Anjuman Intezamia Masajid Committee, which manages the Gyanvapi mosque, moved the top court arguing that the proceedings were an attempt to change the religious character of the mosque. The Places of Worship (Special Provisions) Act, 1991, bars the conversion of the religious character of a place of worship from how it existed on August 15, 1947. The only exception to this law was the Ramjanmabhoomi-Babri Masjid complex, which was standing at the time.
On May 20, 2022, 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.
During the proceedings, senior advocate Huzefa Ahmadi, who appeared for the mosque committee, contended that the process initiated by the Varanasi court violated the 1991 Act. In response, a Bench of Justices D Y Chandrachud (now CJI), Surya Kant, and P S Narasimha said the “ascertainment of the religious character of a place is not barred by…the [1991] Act. Justice Chandrachud invoked a hypothetical situation in which a cross is found in an agiary (fire temple): “Does the presence of a cross make the agiary a place of Christian worship? Therefore, this hybrid character, forget this arena of contestation, is not unknown in India.”
In November 2022, the SC extended its interim direction securing the area of the Gyanvapi complex where the “Shivling” was claimed to have been found, without impeding or restricting the rights of Muslims to access and offer namaz there until further orders.
So what are the issues involved in this case?
The case revolves around a suit filed by the five Hindu women seeking the right to worship Maa Shringar Gauri.
The Hindu side has contended that the mosque was built on the site of a temple. The Muslim side has argued that the mosque was built on Wakf premises, and the Places of Worship Act bars the changing of the character of the mosque.
A new issue arose unexpectedly with the discovery of the so-called “Shivling” in May 2022.
However, the main question of law is whether The Places of Worship Act, 1991, bars the litigants on the Hindu side from approaching the court for their right to worship a deity situated within the mosque complex.
Section 4 of the Act states 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”.
In the present case, the Muslim side has argued that allowing the present suit would alter the character of the mosque as it has existed for more than 600 years. The Hindu petitioners have contended that until 1993, regular prayers were offered inside the mosque complex to Hindu deities and, since 1993, prayers have been allowed on a designated day annually. Relying on this argument, the Varanasi court said in its order that the Places of Worship Act does not bar the civil suit.
The Act had an exception for the Ayodhya site. Section 5 of the Act states that the Act shall not apply to the Ram Janmabhoomi-Babri Masjid case or to any suit, appeal, or proceeding relating to it.
At least two petitions challenging the Act — filed by Lucknow-based Vishwa Bhadra Pujari Purohit Mahasangh and followers of Sanatan Vedic religion and advocate Ashwini Upadhyay — are pending before the Supreme Court.
The Act has been challenged on the ground that it bars judicial review, which is a basic feature of the Constitution, imposes an “arbitrary irrational retrospective cutoff date”, and abridges the right to religion of Hindus, Jains, Buddhists, and Sikhs.
The court issued notice on Upadhyay’s plea in March 2021, but the Centre is yet to file its reply.
The Supreme Court has stopped the scientific survey of the structure, for now. Previously, a Varanasi court had ordered a survey of the structure located next to the Kashi Vishwanath temple. (PTI Photo) 
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