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Saturday, July 02, 2022

Finding religious nature not barred by 1991 law: Supreme Court

It said that the application filed by the mosque committee challenging the maintainability of the suit filed by five female Hindu devotees would be decided on priority by the Varanasi district judge.

Written by Ananthakrishnan G | New Delhi |
Updated: May 21, 2022 7:14:46 am
Security personnel guard outside the Gyanvapi mosque after its survey by a commission, in Varanasi, May 17, 2022. (PTI Photo)

Underlining the “complexity of the issues involved in the civil suit” pending before the Civil Judge (Senior Division), Varanasi, on the Gyanvapi dispute “and their sensitivity”, the Supreme Court Friday ordered transfer of the pending proceedings to the District Judge, Varanasi, for “trial and all interlocutory and ancillary proceedings”. It said the suit “should be tried before a senior and experienced judicial officer of the Uttar Pradesh Higher Judicial Service”.

Responding to the argument of Senior Advocate Huzefa Ahmadi — he appeared for the Committee of Management of Anjuman Intezamia Masjid, Varanasi — that the process initiated by the Varanasi court was in violation of the Places of Worship (Special Provisions) Act, 1991, the bench of Justices D Y Chandrachud, Surya Kant and P S Narasimha, also said that “ascertainment of the religious character of a place is not barred by… the Act”.

The bench said the application filed by the mosque committee, challenging the maintainability of the suit by five Hindu women seeking the right to worship at Maa Shringar Gauri Sthal on the outer wall of the mosque complex, “shall be decided on priority by the District Judge upon the transfer of the suit”.

It said its May 17 interim order — when it declined to stay proceedings before the Varanasi court, and asked the District Magistrate to secure the area where a Shivling was claimed to have been found during the videographic survey of the mosque area without impeding or restricting the rights of Muslims to access and offer namaz at the mosque — “shall continue to remain in operation pending the disposal of the application” challenging the maintainability and for eight weeks thereafter “so as to enable any party which is aggrieved by the order of District Judge to pursue its rights and remedies in accordance with law”.

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“Unless adequate arrangements for ensuring the due observance of wazu have already been made by the District Magistrate, we request the Magistrate, in consultation with the parties, to ensure that appropriate arrangements are made for the religious observance,” the bench said.

Ahmadi contended that the very order of sealing sought to alter the status quo that existed “for 500 years” and to change the religious character of the mosque, something prohibited by the 1991 Act.  He said if the proceedings are to be sent to the District Judge, then the status quo, as existing before the suit was filed, too must be restored.

“You are changing the status quo of that particular area. This was a pond… change of religious character of a place is expressly barred. Now I ask myself this question. Why did you appoint a commission? You appointed a commission to see what existed on site — whether there were deities there, whether there were any symbols relating to another religion which were present at the site. That is precisely an extension of what was sought to be prohibited by Parliament,” Ahmadi said.

Justice Chandrachud said a five-judge Constitution Bench had “tried to interpret it in our judgment in Ayodhya… there are various nuances of the Act which will also fall for consideration, which we need not go into today at all… ascertainment of the religious character of a place is not barred by… the Act.”

“Suppose there is an agiary (fire temple). Suppose there is a cross in another segment of the agiary in the same complex… Act applies to it. Does the presence of the agiary make the cross an agiary? 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. What does the Act therefore recognise? That the presence of a cross will not make an article of Christian faith into an article of Zoroastrian faith, nor does the presence of an article of Zoroastrian faith make it an article of Christian faith.”

“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 Chandrachud said, adding “all the more reason why, on the basis of evidence… let’s allow” the proceedings.

On concerns expressed by Ahmadi about the leak of the Advocate Commissioner’s report, Justice Chandrachud said “that we can tell the other side that selective leaks of the report must stop. Once there is a commission report, it must be presented to the court. Nobody should leak things to the press… there is an order in judicial proceedings.”

Ahmadi contended that “so far as existence of this particular property as a mosque is concerned for a period of 500 years and the religious character of that mosque, as on August 15, 1947, is very apparently not in dispute. It is precisely that religious character that is sought to be protected. Otherwise the Places of Worship Act and the object behind it will become a dead letter. Because there are a large number of places in India where you have had these sorts of multiple religions, a temple, a mosque, a Buddhist temple earlier, a different temple later, a Jain temple earlier, a Vaishnavite temple later. It is precisely this sort of controversy which the Act wanted to interdict and the object that it should not be allowed to fester.”

He said the continuation of the proceedings before the Varanasi court had the potential for “grave mischief” which “has to be nipped in the bud”. He said “all the orders, right from the appointment of commission, are illegal and are to be declared as void”.

During the hearing, the bench also drew attention to the need for fraternity and sense of balance within the nation. “We hold the balance and we have created a sense. The need for fraternity is crucial in our minds as well and there is a need to balance. Our interim order will preserve that sense on the ground… That the Supreme Court is seized of proceedings brings a certain degree of calm… It also sort of calms some frayed nerves on both sides because very important, at this point of time, a certain degree of healing touch with our interim order,” Justice Chandrachud said.

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The court will hear the matter next in the second week of July.

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