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Saturday, June 25, 2022

Gyanvapi mosque: Why Supreme Court’s transfer of case to district judge sends the wrong signal

Rekha Sharma writes: Supreme Court order inadvertently casts aspersions on competence of subordinate judiciary. District court should not be weighed down by SC observation

Written by Rekha Sharma |
Updated: May 26, 2022 9:50:57 am
Police personnel stand guard on the day of the hearing of the Gyanvapi Masjid-Shringar Gauri Temple case, outside the Varanasi District Court, Tuesday. (PTI)

The Supreme Court order of May 20, transferring the suit on the Gyanvapi Masjid dispute from the civil judge (senior division) Varanasi to the district judge casts aspersion, though unintended, on the competence of civil judges in general.

The matter had reached the Supreme Court on a petition filed by the Mosque Management Committee, which challenged the civil judge’s orders. The order permitted inspection, survey, and videography of the mosque’s complex to collect evidence about the alleged existence of idols of Hindu deities inside the mosque, which is adjacent to the Kashi Vishwanath Temple. After the survey, the lawyers representing the Hindu side claimed that a shivling was found at the mosque premises. They filed an application for the protection of the shivling, whereupon the civil judge directed the district magistrate, Varanasi, to seal the area where the shivling was sighted. It also directed the deployment of the CRPF to protect the sealed area and prohibited people from entering it.

The Mosque Management Committee had filed an application before the civil judge seeking the rejection of the plaint on the ground that it was barred by the Places of Worship (Special Provisions) Act, 1991 – it prohibits individuals and groups of people from converting, in full or in part, a place of worship of any religious denomination into a place of worship of a different religious denomination, or even a different segment of the same religious denomination. It was argued before the SC that given the said Act, the suit was liable to be rejected at the threshold as the civil judge had no jurisdiction to entertain the same, much less to pass the aforesaid interim orders. It was further argued that not only did the civil judge proceed with the suit but also passed interim orders that are coming in the way of Muslims offering namaz — they are not being allowed to use the pond close to the protected site for performing wuzu, which is an essential part of their prayers. It was thus alleged that the religious character of the mosque is being sought to be changed. The Committee prayed for the stay of the proceedings before the civil court.

The SC has not found any fault with the order of the civil judge, though there is also a view that it was mandatory on the part of the civil judge to have first passed an order on whether he had the jurisdiction to entertain the suit. And only after holding so, he should have proceeded to pass the interim orders. However, it appears that in the SC’s view, this was not a serious infraction. Had it been so, it would have set the order aside or changed it or stayed the proceedings.

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So, in a way, the SC has affirmed the orders of the civil judge. Significantly, though a legal challenge was made to the orders passed by the civil judge, no one alleged that he was biased, or not competent, nor did anyone ask for the transfer of the case from him. The civil court had territorial and pecuniary jurisdiction to deal with the matter. Why, then, has the Supreme Court transferred the matter to the court of the district judge? The only ground in its order pertains to the complexity of the issues involved and their sensitivity. Therefore, according to the apex court, the matter needs to be dealt with by a senior and experienced judicial officer. Does this mean that the civil judge is not competent to decide a complex matter? Is the SC not passing an adverse observation about the competence of all civil judges?

The SC, with the stroke of a pen – and without finding any fault with the order of the civil judge — has seemingly declared civil judges to be not competent to decide a matter alleged to be complex. Who will decide whether a matter is complex enough to be taken up by a superior judge? When the Civil Procedure Code, the High Court Rules and Orders invest a civil judge with jurisdiction, why take it away merely on the plea that the matter is complex?

Almost every day, we hear of Hindu groups laying claims to mosques on the ground that they were built by razing temples to the ground by Muslim rulers. Today, it is the Gyanvapi Masjid tomorrow it will be Shahi Idgah Mosque in Mathura, and on another day it will be Jama Masjid, Bhopal. All such cases will be no different from Gyanvapi Masjid. They would be equally complex and sensitive. Nobody knows when this madness, which is threatening to rip apart the social fabric of our country, will come to an end. And who knows when such matters may land before the SC again. With the greatest respect to the apex court, will it transfer all such cases to the district judges? If yes, then why have civil judges at all? If not, then the transfer of the case to the district judge has set an unhealthy precedent and will have a demoralising effect on the subordinate judiciary. Besides, it will also take away one step in the right to appeal of the aggrieved party.

In the recent past, many lower-level judicial officers have passed outstanding orders in matters concerning the liberties of the citizens, which are under threat as never before. Let us, therefore, not under-rate their competence. The subordinate judiciary provides the foundation of our judicial system. Do not shake it.

During the hearing in the Supreme Court, on the question of whether The Places of Worship Act, 1991, debars filling of any suit relating to the places of worship as they stood on August 15, 1947, one of the judges is reported to have remarked that the ascertainment of the religious character of a place may not necessarily fall foul of Section 3 of the Act. Any word written or spoken by the Supreme Court carries its own weight. Hence, with all respect, such a comment should be avoided, especially, when the matter is still to be decided by a subordinate court. It is hoped that the district judge to whom the case has now been entrusted will not get weighed down by the aforesaid remark.

The writer is a former judge of the Delhi High Court

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