Balancing act

SC GYANVAPI

of worship as it existed on August 15, 1947.

The court clarified that its May 17 order on protecting a section of Varanasi’s Gyanvapi Masjid complex where a “Shivling” was ostensibly found shall continue, besides the direction that Muslims will have the right to offer namaz in the mosque without any hindrance. It further directed the Varanasi district magistrate to ensure arrangements for wazu (ablution) for Muslims, but did not entertain a plea of the mosque management committee to allow them to use the pond or the tap (located close to the protected site) for water.

Adjourning the case to the second week of July, the bench added that its May 17 order will remain operational until the Varanasi district judge’s decision on the maintainability of the suit filed by the Hindu petitioners, and for a further period of eight weeks so that parties aggrieved by such an order could challenge it in appeal.

The survey was ordered by the Varanasi civil court in April on a suit by five women, who sought daily prayers and worship rights at the Maa Shringar Gauri Sthal, a Hindu shrine, behind the western wall of the Kashi Vishwanath Templegyanvapi Mosque complex. They claim the temple was partially razed to build the 17th-century mosque. The Friday order virtually denies all the requests made by the mosque committee in the SC: to stay the proceedings before the civil court; to allow unrestrained access inside the mosque complex; to invalidate the advocate commissioner’s report; and to rule against maintainability of the Hindu women’s suit on the premise of the prohibition under the Places of Worship Act, 1991. Instead, the bench resorted to the course it suggested on the first day when it heard this case, on May 17. On that day, the bench commenced the proceedings by suggesting to senior counsel Huzefa Ahmadi, who represents the Anjuman Intezamia Masjid Committee, that the matter should go back to the civil court for deciding their application to reject the suit on maintainability.

Ahmadi was at that point agreeable to this course but had some caveats. He wanted the (other) proceedings before the civil court to be stayed and an unhindered access to the mosque complex. While the bench, on Friday, did not apparently grant these prayers, it handed over the case to a more senior civil judge in Varanasi and kept the interim arrangement intact. The bench made it clear that the order is not an aspersion on the Varanasi civil judge but indicates a preference to have a more experienced judge to deal with the matter.

Back to civil court

The court told Ahmadi that the “rule of law has to be followed by all the parties”, emphasising that the edifice of his grievances lies in maintainability of the suit, which cannot be looked into by the SC in the first instance. Ahmadi resisted: “If this is allowed to fester, the directions under the civil suit will only remain a pipe dream. There is a narrative which is being created. Commission reports are being leaked selectively. This is disturbing communal harmony. Don’t look at this from the point of one suit alone. Look at the ramifications across the country.” But the court remained firm: “The moment you argue that the appointment of the advocate commissioner (who conducted the survey) is void ab initio (nullity) because the suit is barred by the 1991 Act, it is farfetched...we cannot decide the maintainability of the suit here.”

It pointed out that the court may have to look into the advocate commissioner’s report if it were to decide on the maintainability of the suit. “If we hold in your favour, they are ousted from their argument. But if we accept their submission, you will be ousted. Is it right for the SC to do this? We have to adopt a fair process across the board,” added the bench.

The Places of Worship Act, 1991

During the hearing, Ahmadi relied upon the 1991 law to argue that the suit should have been thrown out on the first day by the civil court since the Act repels all attempts to alter a place of worship as existing on August 15, 1947. Section 3 of the Act imposes a prohibition on individuals and groups of people against converting, in full or 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.

“The prayer in the suit is to change the religious character...

Under Section 3 of the Act, there is an absolute bar on changing the religious character of a place of worship and there is no exception to this. Why did you appoint a commission? To find out if there are deities, etc. This is barred under Section 3,” he stressed. Ahmadi also referred to the five-judge bench decision in the Ayodhya verdict that emphasised the significance of the 1991 Act, stating that the 1991 law prohibits the conversion of any place of worship and in doing so, it speaks to the future by mandating that the character of a place of public worship shall be preserved and not be altered. Since the Ramjanmabhoomi-babri Masjid dispute was explicitly kept out of the purview of the Act, the judgment did not have the occasion to apply the law to any specific dispute.

To Ahmadi’s submissions, the bench offered a different opinion. It said that the 2019 Ayodhya verdict may not have addressed various nuances of the Act that will fall for consideration once the law is tested on a specific case. “Ascertainment of religious character of a place is not barred by Section 3 of the Act. Forget this case, we will give you a different example. Suppose there is a Parsi temple and there is a cross in the corner of the area. Does the presence of agyari (Parsi fire temple) make the cross agyari or the agyari a Christian? This hybrid character is not unknown. Here, a structure of Zoroastrian faith will not make the Christian structure Zoroastrian or vice versa. But the ascertainment of religious character of a place may not necessarily fall foul of section 3 of the 1991 Act,” replied the bench.

At the same time, the court clarified that it is not expressing any such opinion in its order. “These are matters where we will not hazard an opinion in our order. We are in a dialogue,” said the bench. But the bench’s comments prompted Ahmadi to say that the 1991 Act will be a dead letter if all the suits are entertained by the courts across the country to ascertain the religious character of a place of worship.

During the hearing on Friday, the bench underlined that its May 17 order aimed at striking a balance and to maintain “equanimity on ground”. “We are not allowing the trial court to run amok. Therefore, we hold the balance. We have created a framework to maintain peace and an atmosphere of fraternity between communities as the Constitution envisages. It is our duty to uphold that message,” said the bench, as Ahmadi raised apprehensions that the Varanasi civil court proceedings could be replicated to other places too.

The court repeatedly said that it is willing to tweak the May 17 order to maintain peace on the ground. At this, appearing for the Hindu women petitioners, senior advocates Ranjit Kumar and CS Vaidyanathan argued that protection of the site where the “Shivling” has been found is imperative. Representing the UP government, solicitor general Tushar Mehta expressed satisfaction with the interim arrangement. But Ahmadi complained that the character of the place is sought to be changed and there are several battalions of police surrounding the area. “If this is allowed to fester on, it will create more problems. What my lords are suggesting cannot be the solution,” he rued.

To this, the bench retorted: “These are complex social problems and no solution by the human being can be perfect. Our order is to maintain a certain degree of peace and calm. Interim order is to calm some frayed nerves with some healing touch.” It told the lawyers: “You may be appearing on different sides in this case but ultimately, we are here in a joint mission to preserve a sense of unification in the country.”

No more selective leaks

Ahmadi complained about the leakage of the advocate commissioner’s report to the media, questioning the credibility of the exercise. “The commission’s report is being selectively leaked to create a narrative. This must be interdicted here,” he said.

On May 17, the Varanasi civil judge removed advocate commissioner Ajai Kumar Mishra over an alleged leak of details of the survey. The bench agreed with Ahmadi. “Once the commission’s report is there, there cannot be selective leaks. Nobody should leak things to the press. Only the judge should open the report because that is how it has to be done as a judicial process,” remarked the bench. It added: “Selective leaks must stop. Once there is a commissioner’s report, it should not be leaked to the media or anyone. Judicial proceedings should be preserved.”