Places of Worship Act Challenge: SC refers ‘Bhojshala’ survey to Chief Justice led Bench

Hearing an appeal by the mosque administration, the court had last year refused to stay the High Court order for a survey of the premises by the Archeological Survey of India (ASI). But it also said no physical excavation that would alter the character of the premises should be carried out. It directed that no further action should be taken on the outcome of the excavation without its permission.

On Thursday, as the top court proceeded to refer the matter to the CJI-led bench, Advocate Vishnu Shankar Jain, appearing for the Hindu side, contended that the Places of Worship Act does not apply to ASI-protected monuments such as the Bhojshala.

The top court said that if that’s the line of argument, it would issue notice on the plea alleging contempt of the court’s earlier order against physical excavations that would alter the character of the premises.

“We have seen some of the pictures… We find from the pictures that some excavation is going on…,” said Justice Roy.

Jain subsequently agreed to have the matter placed before the CJI-led bench.

For Hindus, the ASI-protected complex is a temple dedicated to the Goddess Vagdevi (Saraswati), while for Muslims, it is the site of the Kamal Maula Mosque. As per an arrangement in 2003, Hindus perform puja at the complex on Tuesdays while Muslims offer namaz on Fridays.

The petitioner in the case, the Hindu Front for Justice, has argued that the Kamal Maula Mosque was constructed between the 13th and 14th centuries during Alauddin Khilji’s reign by “destroying and dismantling ancient structures of previously constructed Hindu temples”.

The high court ordered a complete scientific investigation, survey and excavation of the Bhojshala complex. It said the “nature and character of the whole monument, admittedly maintained by the Central government, needs to be demystified and freed from the shackles of confusion”. Because of the “mystery” surrounding the exact “nature, form and character” of the complex, “the ghost of controversies has assumed such mammoth proportions”, it said.

On March 11, 2024, the high court had ordered the ASI to constitute an expert committee that would “complete scientific investigation, survey and excavation, through the adoption of latest methods and techniques” and submit the report within six weeks.