New Delhi: Affirming the Allahabad High Court’s order on scientific survey of the Gyanvapi mosque in Varanasi, the Supreme Court Friday told the Muslim side that what might appear to be frivolous to it may be a matter of faith to the other side.
A three-judge bench led by Chief Justice of India D.Y. Chandrachud made the remarks when the Gyanvapi mosque’s management committee urged the court to halt the scientific survey because the legal sanctity of the suit filed by Hindu devotees — claiming they have a right to worship inside the mosque – is under serious doubt.
The lawyer for the mosque committee likened the Hindu devotees’ suit to a “frivolous petition.”
“The (ASI) report is in the interest of both sides,” the bench said, rejecting the mosque management’s appeal against the day-old order of the Allahabad High Court that gave a go ahead to the Archaeological Survey of India to carry out a scientific survey of the mosque premises.
Referring to the importance of such a survey, the bench said a similar report in the Ayodhya case separated the grain from the chaff in the final stages of the trial in that case. It added the top court’s judgement in the Ram Janmabhoomi-Babri Masjid land-dispute case had dealt with the evidentiary value of an archaeological survey.
However, the top court directed the ASI to adopt a non-invasive mechanism for the procedure and said that the two parties — litigating on the issue of whether Hindus have a right to worship in the mosque, or not — would have the right to file their objections to the ASI’s report as well as cross-examine the person who conducts it and also question the manner in which the said exercise would be conducted.
All of this, the court added, can be resorted to when evidence is being led on the suit before the trial court.
Hence, the bench said, the ASI’s report would not “amount to substantive findings in the matter of dispute.” It declined to order the ASI to submit the report in a sealed cover before the trial court where the suit on right to worship is pending.
In their suit, the Hindu devotees have asked to let them enter the mosque to offer prayers to the “visible and invisible idols of gods and goddesses there”, which the petitioners have claimed was being done till November 1993 when it was abruptly stopped by the then Mulayam Singh government in Uttar Pradesh.
The top court further refused to stop the survey till it adjudicated on the mosque management’s appeal, questioning the maintainability of the suit on Hindus’ right to worship.
It, however, issued notice on the mosque management’s appeal that has challenged the Allahabad High Court verdict that ruled against the Muslims to hold the suit filed by devotees was maintainable and not barred under the Places of Worship Act, 1993. As per the Act, the nature of places of worship need to be maintained as it was on 15 August, 1947.
On Thursday, the HC bench led by its chief justice had upheld the trial court’s 21 July order directing the scientific survey of the mosque premises. The demand for the scientific survey was made by the Hindu side, who want its findings to be led as evidence in the right to worship suit.
The high court had, however, introduced measures to safeguard the concerns raised by the Muslim side to protect the existing structure. Upon an undertaking given by the ASI, it ordered no excavation or destructive methodology would be used in the survey.
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‘Concerns will be safeguarded’
“We must treat it as an ordinary suit. Two courts have ruled against you with a reasoned order, declining relief to you. However, we will safeguard your concerns regarding protection of the structure and superimpose it with the solicitor general’s view,” the SC bench — also comprising justices J.B. Pardiwala and Manoj Mishra — told mosque management’s lawyer, senior advocate Huzefa Ahmadi.
Solicitor General Tushar Mehta, who appeared for the Uttar Pradesh government as well as the ASI, assured the bench that the archaeological body shall not undertake any steps to damage the site.
Ahmadi urged the bench not to permit the survey, saying it would unravel the wounds of the past. Moreover, he said, the survey should not take place until the apex court rules on his client’s appeal on the maintainability of the Hindu devotees’ suit.
“If someone files a frivolous suit, should the court allow a scientific survey on the basis of it? Don’t have a survey when serious doubt arises over the maintainability (of the suit),” Ahmadi contended.
To this, the top court responded: “What is frivolous to you is faith to the other side.”
The apex court said in terms of the civil procedure code — under which the scientific survey was ordered — the court may, if it thinks necessary or expedient, direct a scientific investigation in terms of its discretionary power. Therefore, the court, the SC added, cannot be construed to be without any jurisdiction.
Since both the trial court and HC order on the survey are interlocutory in nature, the apex court did not find it appropriate to interfere, saying it is unable to “differ with the HC view.”
It also noted that the HC had rightly introduced certain specific directions to circumscribe the trial court’s order and set out limits on the nature of the investigation and the manner in which the non-invasive investigation would be held.
On Ahmadi’s argument that the scientific survey was contrary to the provisions of the Places of Worship Act, the bench said it would not go into the root of the case, while deciding against an interim order. Ahmadi’s other points, too, failed to convince the bench.
The senior counsel said that a similar prayer of a scientific survey made in another pending suit is stayed. He even cited the SC’s last year order in which it put on hold the survey of the disputed structure inside the mosque premises, which the Hindu side claims to be a Shivlinga, while the Muslims say it is a fountain.
Ahmadi said the survey also impinged a 1994 judgement of the Supreme Court, which observed that the Places of Worship Act was passed by Parliament in anticipation of a settlement of disputes on religious structures.
Justice Pardiwala was, however, not convinced as he told Ahmadi that the ASI survey was going to be in the form of a report, which could be just a piece of paper. “Have we reached a stage where there will be irreparable damage to either side?” he asked.
Ahmadi pointed to UP Chief Minister Yogi Adityanath’s recent statement on the status of Gynavapi mosque to voice his concern. He said as a state, UP is supposed to be non-partisan in the suit. Despite the matter being “hotly sub-judiced,” the CM made the statement, he told the bench, urging the judges to read it.
Appearing for the Hindu side, senior advocate Madhavi Diwan sought to allay the apprehensions, saying that the ASI survey was for the benefit of the court and to aid it.
The survey was not prejudicial nor was determinative or adversarial, she said. “It can go either way. We too are taking chances as we do not know what the survey would show. We have an equal right to object,” she added.
With regard to the application of the Places of Worship Act in the case, Diwan explained the Hindu side’s stand is that they had access to worship inside the premises even on the cut-off date mentioned in the Act and continued to do so till 1993. Since the Muslim side has claimed this to be “our imagination,” she argued, it was a subject of dispute, which the court should adjudicate. Therefore, the senior advocate said, the survey was important and cannot be barred.
(Edited by Tony Rai)
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