An Uttar Pradesh civil court on April 8 directed the Archaeological Survey of India (ASI) to conduct a comprehensive survey of the Gyanvapi mosque to determine whether it was constructed atop a temple.
The civil judge directed the ASI to primarily ascertain whether the site on which the mosque is situated was a "superimposition, alteration or addition or structural overlapping with/over, any other religious structure".
While the Hindu right-wing has celebrated this order while, sections of the society have expressed fears likening this development to a repeat of December 6, 1992, when the Babri Masjid in Ayodhya was demolished
Hours after the Varanasi court order, BJP leader Subramanian Swamy had tweeted: "My hands are full for next twelve months: Restoring Gyan Vapi Kashi Vishvanath Temple at Varanasi and Declaration by Government of Ram Setu as National Heritage Monument. Later link the Setu to Ashok Vatika in Sri Lanka."
On August 5, 2020, BJP leader and Karnataka's rural development and panchayat raj minister K.S. Eshwarappa said the Gyanvapi Mosque and Mathura's Shahi Idgah (this is adjacent to a site purported to be Lord Krishna's birthplace) were "symbols of slavery".
"...A symbol of slavery disturbs our attention and points out that you are a slave… All Hindus across the world have a dream that those symbols of slavery should be removed on the lines of Ayodhya. The masjids in Mathura and Kashi will be destroyed too and temples will be rebuilt," Eshwarappa had said. In September 2020, the Akhil Bharatiya Akhara Parishad spoke of initiating a campaign to "free Hindu temples" in Varanasi and Mathura along the lines of the Ram Janmabhoomi movement.
However, sections of the media have voiced concerns that the Gyanvapi mosque risks the Babri Masjid fate. The Wire's editor Arfa Khanum Sherwani tweeted: "Another December 6 in making? As the Muslims of India try to heal their wounds, here are some darker days ahead And this is being sanctioned by the judiciary this time".
The civil court's order however is problematic on two fronts: 1) It violates the provisions of the Places of Worship Act (PWA), 1991; and that 2) the civil court judge jumped the gun while issuing detailed orders in light of the fact that the Allahabad High Court on March 15 reserved its order on an appeal challenging the maintainability of this suit.
In 1991, the Congress-led government enacted the PWA which barred the religious conversion of any place of worship into any other section of the same religion or any other religion. It essentially issued a status quo on all places of worship with the sole exception of the Babri Masjid-Ram Janmabhoomi issue which was already in litigation.
What is the Gyanvapi mosque- Kashi Vishwanath title dispute case?
In 1991, the temple's trust filed a suit submitting that the 17th Century Gyanvapi Mosque, situated adjacent to the present Kashi Vishwanath temple, was allegedly built by Mughal Emperor Aurangzeb after demolishing a temple that was said to be a restoration of the original Kashi Vishwanath temple.
Three other suits were filed in 2021 by advocate Vishnu Jain. One of the three suits has been filed by Sudarshan TV News founder, Suresh Chavanke, standing in for Maa Ganga (the river Ganga) while seeking the removal of the Gyanvapi Mosque and restoration of Lord Kashi Vishwanath.
Civil judge Ashutosh Tiwari issued notice on the three new suits as well and clubbed the matters with the original plea filed in 1991.
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Civil Court's order violates provisions of the Places of Worship Act, 1991
In 1991, when the Ayodhya title dispute around the Babri Masjid-Ram Janmabhoomi gathered steam, right-wing outfits like the Vishwa Hindu Parishad (VHP) laid claim to three other sites including the Kashi Vishwanath temple.
Against this backdrop, the PV Narasimha Rao government passed the PWA which essentially froze the status of all religious structures as they were on August 15, 1947. The Ayodhya dispute was the sole exception to this act, a point underscored by the Supreme Court in its November 2018 Ayodhya verdict. In November 2019, a five-judge constitution bench settled the Ayodhya dispute—one of the longest-running land disputes in the history of this country—when it gave full possession of the land to Ram Lalla (minor Lord Ram).
The title dispute, in this case, reached courts as early as 1885, while the title suit in the Kashi Vishwanath-Gyanvapi Mosque case was filed in 1991.
The Gyanvapi Mosque-Kashi Vishwanath title dispute case thus violates provisions of this law, advocate Sarim Naved said. "The places of worship act is categorical that such suits cannot be heard at all. The Act has been upheld and appreciated by a constitution bench of the Supreme Court in the Ayodhya judgment. This order does not have any legal basis," Naved told BOOM.
Naved represents Wasif Hasan, custodian of Mathura's Idgah Mosque, who is defending the defending the Places of Worship Act in the Supreme Court.
However, Vishnu Jain said the civil court's order is covered under the provisions of the PWA. "Section 4(2) of the act speaks of the 'religious character' of a place of worship. In our plea, we have maintained that as on August 15, 1947, the religious character of the site presently housing the mosque was that of a Hindu temple," Jain said.
Jain has also challenged the PWA in the Supreme Court.
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Civil court order borders on illegal judicial adventurism: Lawyer
The Anjuman Intazamia Masazid, Varanasi (Mosque Committee) the committee managing the Gyanvapi mosque, had challenged the maintainability of title dispute in the Allahabad High Court. After hearing detailed arguments, Justice Prakash Padia had reserved his verdict on this issue.
In light of the pending verdict, senior advocate Sanjay Hedge and advocate Shadan Farasat opined that the civil court order is premature. "An order such as this in a suit, that is prima facie not maintainable on account of Places of Worship Act, 1991, borders on illegal judicial adventurism," Farasat told BOOM.
"The wrongs of ancient history are beyond remedy by the ordinary judicial process." Hedge told BOOM. No current title can be based on ancient ownership in a situation where possession elsewhere for more than twelve years, he added.
"The Parliament passed the Places of Worship Act which froze title and possession of all religious structures as it was on August 15, 1947. A trial court cannot bypass this status quo, even as the verdict on the very maintainability of the suit is pending in the High Court. The current order must also be appealed against and set aside," Hegde said.
In 1998, Allahabad high court had stayed proceedings on the 1991 title dispute suit. On February 4, 2020, the civil court decided to proceed with the hearing on the grounds that the stay order no longer applied in light of the top court verdict. However, the mosque management committee said that the high court on February 26, 2020, had extended the stay on proceedings.
"The trial court is simply following the 2018 Supreme Court judgment which said that stay on any civil/criminal proceedings will not continue beyond six months unless it is extended by the high court," Jain said defending the civil court order.