New Delhi: The Supreme Court Friday ordered that the dispute over Gyanvapi mosque be heard by a most senior judge of the district judiciary in Varanasi — a decision the court said it took with “peace uppermost on their minds” and to “maintain balance and fraternity between two communities”.
A three-judge bench led by Justice D.Y. Chandrachud directed the transfer of the files related to the case from the civil judge, senior division, Varanasi, to the court of district judge of Varanasi for further trial. The court said “the complexity of the issues involved in the case” and “their sensitivity” require the suit be heard by a “senior and experienced judicial officer of the Uttar Pradesh higher judicial service.”
The bench was hearing an appeal filed by the Committee of Management Anjuman Intezamia Masjid — the management committee of the Gyanvapi mosque — challenging the Allahabad High Court’s 21 April 2022 order, which refused to set aside the Varanasi civil judge’s August 2021 decision to appoint an advocate commissioner to survey the mosque.
The Supreme Court said Friday that all interlocutory and ancillary proceedings in the suit will be addressed to the court of the district judge. The bench, also comprising justices Surya Kant and P.S. Narasimha, verbally clarified that its order is not an aspersion on the civil judge who had so far heard the case. However, during the hearing, the bench remarked that it was concerned about “attaining a sense of balance on the ground”.
Ravi Kumar Diwakar, the civil judge (senior division), issued the order on a suit filed by five women who have claimed praying rights inside the mosque on the ground that there are idols of Goddess Maa Shringar Gauri and other Hindu deities there.
On 16 May, he also directed the sealing of the portion inside the mosque where a Shivling is said to have been found. The order came on an application filed by the petitioners, before the advocate commissioner submitted his report to the court.
The next hearing of the case is on 21 July.
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‘Decide mosque’s petition on priority basis’
The Supreme Court said in its order that the district judge will decide, on a priority basis, the application filed by the mosque management committee in which they have questioned the maintainability of the suit.
The mosque says that such a suit is barred under the Places of Worship Act, 1991 — a law that forbids alteration of the religious character of a place of worship from what it was on 15 August 1947. However, before deciding on this application, the trial judge appointed a local commissioner to survey the mosque.
On Friday, the Supreme Court said that till the district judge decides the plea on the maintainability of the suit, its 17 May order — directing the district magistrate of Varanasi to protect the area where a Shivling is said to have been found — will operate.
In this interim order, the court had said measures undertaken to protect the area will not impede Muslims’ right to offer namaz and perform other religious observances.
Justice Chandrachud also said that the mere ascertainment of the religious character of a place may not fall foul of the 1991 law. The judge then went on to illustrate how the hybrid character of religious places is not unknown in India.
The Supreme Court said that its 17 May order will remain in operation for eight weeks after the district judge delivers his judgment. This is primarily aimed at giving the two sides time to appeal the district judge’s order in higher courts.
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A sense of ‘balance’
The Supreme Court was told at the Friday hearing that the wazukhana — a pond-like structure that has taps on both sides for devotees to wash their feet before they go to the designated area for namaz — remains inaccessible because of the heavy police presence.
It was at this wazukhana that a shivling has allegedly been found.
The court then asked the district magistrate to engage with the parties, and made adequate arrangements for wazu (washing of feet).
The judges told both the parties orally that the framework created through its order is to maintain peace.
“We need to hold a balance. There has to be a sense of balance and fraternity and we, as the highest court, are bounded to send this message,” the court said, assuring the lawyer representing the Muslim side that the top court would not “allow the trial court to run amok”.
“Hold the status quo and let us see how this evolves. Interim orders are not [the] perfect solution and these are complex situations,” the bench observed. It said it would keep the mosque management’s appeal pending and will hear it in July second week.
‘Procedural errors’
The fact that the top court is seized of the proceedings will also “calm some frail nerves on both sides and is like a healing touch”, the court said. “We are in a joint mission for preserving a sense of balance in the nation,” it added.
This verbal observation came as senior lawyer Huzefa Ahmadi, who was appearing for the mosque management committee, accused the trial court judge of committing procedural errors by directing the survey before deciding his client’s maintainability application. He said through a string of its orders the trial court has sought to alter the status quo of the mosque that was in place for more than 500 years and is protected under the 1991 Act.
All the trial court orders, Ahmadi argued, were in the teeth of the 1991 law as well as the 2019 judgement in the Ayodhya case that observed the Act upheld the equality of all religions and secularism, which is part of the basic structure of the Constitution.
Appearing for the Hindu parties, senior advocate C.S. Vaidyanathan contended technically the appeal filed by the management committee is infructuous because it was against three trial court orders that have been complied with by now.
He further contended that to decide on the Muslim party’s application claiming the suit seeks to alter the religious character of the structure, which is not allowed under the 1991 law, the court will first have to determine the religious character of the place. Vaidyanathan further said to give a finding on what was the religious character of the place, the court will have to consider the advocate commissioner’s report.
A reconstituted commission appointed by a court in Varanasi completed its videographic survey of the Gyanvapi Mosque complex and submitted its report on 19 May. The commission was reconstituted after the Varanasi court removed Ajay Kumar Mishra, the advocate commissioner previously in charge of the survey, over allegations that he had leaked details of the process. The reconstituted commission conducted its survey on 14, 15, and 16.
The bench preferred not to issue any directions on Vaidyanathan’s arguments and said it will leave it to the district judge’s wisdom to devise on how he or she wants to proceed.
“That is the reason why we feel a senior officer, who has a standing of more than 20 years in the field of judiciary should hear the matter,” Justice Chandrachud, who was the most vocal on the bench, observed. “We want an arrangement to protect all sides, all interests, including that of the State, so that there is no law-and-order problem.”
He said its order to nominate a senior judge to hear the case was in no way an attempt to cast aspersions on the junior judge.
“We three thought about it and felt that due to the complexity and sensitivity of the matter, we must ask a senior judge to hear the matter,” the bench said.
It, however, accepted Ahmadi’s concern that the leaked portions of the commissioner’s report had created some sort of communal disharmony on the ground.
“We can tell the other side that selective leaks must be stopped, nobody should leak to the press. There is an order in certain judicial proceedings, a commission should present the report to the court and only a judge should open it,” the bench said.
Ahmadi complained the trial judge’s order is being used not in respect of just the Gyanvapi mosque but also the other mosques around the country.
“This is capable of grave public mischief and this is exactly what the 1991 Places of Worship Act wanted to avoid,” he told the court.
“The taste of the pudding is in the eating. Not only the dictum of five judges (of the Ayodhya verdict) has been interdicted, but the directions in it remain a dream. A narrative created has disturbed communal harmony. Please do not look at it from just one suit, but from the egregious effect it has on the ground,” Ahmadi argued.
(Edited by Uttara Ramaswamy)
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