Gyanvapi Mosque row | SC stays ASI survey of premises till July 26 evening

The order gives the mosque management “breathing time” to approach the Allahabad High Court. The SC further asked the High Court to hear the mosque management’s case against ASI survey before the expiry of the status quo order of the top court

July 24, 2023 11:23 am | Updated 01:43 pm IST - NEW DELHI

Security personnel stand guard outside the Gyanvapi Mosque complex ahead of a survey by Archaeological Survey of India (ASI), in Varanasi on July 24, 2023.

Security personnel stand guard outside the Gyanvapi Mosque complex ahead of a survey by Archaeological Survey of India (ASI), in Varanasi on July 24, 2023. | Photo Credit: PTI

The Supreme Court on July 24 ordered the Archaeological Survey of India (ASI) to maintain status quo till 5 p.m. on July 26, giving the Gyanvapi mosque management “breathing time” to approach the Allahabad High Court against a July 21 order of the Varanasi District Court to conduct a scientific survey of the mosque premises located next to the Kashi Vishwanath temple.

A Bench headed by Chief Justice of India D.Y. Chandrachud asked the Allahabad High Court registry to place the appeal, if filed by the mosque management, for hearing before an appropriate Bench before the top court’s stay order expired on July 26 evening.

The court took note of the urgent oral mentioning of the mosque management, represented by senior advocate Huzeifa Ahmadi, that the District Court had ordered the “scientific survey” at 4.30 p.m. on July 21.

‘What is the hot haste now?’

“The survey started on Monday. It has already begun. What is the hot haste now? This mosque has been a place of worship since the 1600s… They want to know if there was any pre-existing structure of a Hindu temple… No time was given for us to even file an appeal. The order specifically says scientific investigation/survey/excavation of the property in question… An excavation would amount to contempt of the Supreme Court orders in the case,” Mr. Ahmadi submitted.

EXPLAINED | The Gyanvapi Mosque-Kashi Vishwanath dispute and the current case 

He said that the Allahabad High Court had earlier suspended a controversial archaeological survey of the premises to determine whether a Hindu temple was partially razed to build the 17th-century mosque.

Mr. Ahmadi said the District Court’s order to a “scientific survey/excavation” nullified the High Court order. Any excavation on the premises would run the risk of disturbing the Supreme Court orders to seal the wazukhana area. The top court had sealed the area after the Hindu side claimed the structure found there was a shivling while the Muslim side said it was a fountain.

Mr. Ahmadi questioned how the District Court could order collection of scientific evidence when even the oral evidence was only yet to commence in the suit under Order 7, Rule 11 (concerning the maintainability of a suit) of the Civil Procedure Code.

“They have already started digging at the western wall,” Mr. Ahmadi submitted.

‘Non-invasive’ survey

Senior advocate Shyam Divan, appearing for the Hindu women plaintiffs in the suit, said the survey was “non-invasive” and did not include excavation. The District Court had clearly directed the ASI to not disturb the sealed area.

Solicitor General Tushar Mehta, who has been appearing for the Uttar Pradesh government, after enquiring with the ASI officials at the site, said “not a brick has been removed”. He said the survey team was only conducting mapping, ground-penetrating radar survey and photography. Mr. Mehta said the ASI was not “contemplating” any excavation for a week, which gave the mosque management ample time to move the High Court for relief.

Mr. Ahmadi, in turn, urged the Bench to stay the Varanasi court order of July 21.

“You can move the High Court tomorrow. We will order status quo to be maintained till Wednesday… The order of the District Court shall not be enforced till 5 pm, July 26,” Chief Justice Chandrachud addressed Mr. Ahmadi, disposing of the case.

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