Gyanvapi row: 2 months ago, different HC bench backed survey, faulted 2022 decision

On May 12 this year, Justice Arvind Kumar Mishra-I of the Allahabad High Court — he retired on July 1 — in his order stated: “Now insofar as the above observation of the District Judge, Varanasi in regard to direction being issued for carrying out scientific investigation is concerned, it is admitted fact that before passing the order (14.10.2022), due diligence was not exercised by the District Judge, Varanasi for the specific reason that the finding reached by the District Judge, Varanasi regarding damage being caused to the structure in issue is assumptive and presumptive and the same is not based upon any relevant material on record as such not supported by record.”

He passed an order in favour of conducting the survey after taking into consideration a report submitted by the ASI in a sealed envelope. On May 19, a week after the High Court ordered the survey, a bench headed by Chief Justice of India D Y Chandrachud deferred implementation of the order. The CJI cautioned that “these are matters where one has to tread a little carefully”. Both the Centre and the Uttar Pradesh government agreed to put in abeyance the survey of the mosque.

In his order, Justice Arvind Kumar Mishra-I had stated: “In view of above discussion, natural conclusion emerges that scientific investigation of the Shivlingam/site, under able guidance of the Archaeological Survey of India assisted by the experts, scientists, archaeologists, can be done conveniently subject to the rider that the site/Shivlingam in question shall not be damaged and it shall be preserved and protected in its present shape.”

The High Court was hearing a revision petition filed by the Hindu side against the District Court’s order last year.

“If the trial Judge had any apprehension of damage being caused to the site in case scientific investigation of the site is directed, in that event it was obligatory on his part to have sought expert opinion of the persons well versed in carrying out such type of enterprises like the present one. The learned trial Judge, without collecting specific data/material from the able agency, jumped upon the conclusion that scientific investigation of the site/Shivlingam if directed to be done will in all probability result in destruction of the site/Shivlingam itself.”

In October 2022, Varanasi District and Sessions Judge Dr Ajaya Krishna Vishvesha had declined a plea by the Hindu side for a survey on the grounds that it would violate the Supreme Court’s May 2022 directions to ensure that the site/ Shivlingam “be preserved and protected.” In the same order, the Supreme Court had transferred the Gyanvapi cases from a civil judge to a “more senior and experienced judicial officer” – Judge Vishvesha – citing the social complexities of the dispute.

The Supreme Court intervention in May 2022 came after the civil judge, hearing the case then, had allowed a video survey of the Gyanvapi mosque which led to the Hindu side claiming that it found a structure resembling a Shivling on the mosque premises.