The Supreme Court on Tuesday directed the District Magistrate of Varanasi to ensure the protection of the area where a Shivling was reported to be found, while ordering that Muslims should not be restricted or impeded from accessing the Gyanvapi mosque to offer namaaz or perform religious observances.
“We are not disturbing anything but holding everything in balance,” Justice D.Y. Chandrachud addressed the court after passing the interim order.
“This is a situation when everybody must cooperate,” Justice P.S. Narasimha, the pusine judge, also spoke from the Bench.
The court, in order to “obviate any dispute”, “restricted” a May 16 order of the trial judge, which led to the sealing of a portion of the mosque premises.
The trial judge had on May 16 “allowed” an application filed by several Hindu women claiming that a Shivling had been found near the wazu khana (place of ablution) during the inspection of the mosque premises by a Court Commission. The women had wanted the trial court to direct the local Central Reserve Police Force (CRPF) Commandant to seal the wazu khana and stop its use with immediate effect. The women’s application had also sought the trial judge to order the District Magistrate to restrict entry of Muslims for namaaz and not allow more than 20 of them to offer namaaz.
The apex court “excluded” any of these reliefs “allowed” by the trial judge in his May 16 order. Instead, the Bench confined its order to only directing the protection of the specific area in which the Shivling has reportedly been found, without affecting the right of Muslims to offer prayers in the mosque.
“We are balancing the reliefs till the next date of hearing... The District Magistrate will ensure that the place where the Shivling has been found will be protected, but this will not in any way restrict or impede the access of Muslims to the mosque for purpose of namaaz or prayers as before,” Justice Chandrachud observed.
Senior advocate Huzefa Ahamadi, for the Anjuman Intezamia Masjid, the mosque’s caretakers, asked how namaaz could be performed without cleansing oneself at the wazu khana.
Solicitor General Tushar Mehta, for the State of Uttar Pradesh, suggested that “wazu could be done without disturbing the part” under protection. He apprehended a law and order problem if someone stepped into the protected area.
The court, however, did not agree with Mr. Ahamadi’s plea for a complete stay of the proceedings before the trial judge.
The senior lawyer submitted that the string of orders passed by the trial court, right from when the Hindu women filed a suit for declaration of their right to worship at shrines believed to be present in the mosque complex, were “patently without jurisdiction and non est”.
“I want a stay of all the orders, including the appointment of the Commission to inspect the mosque premises,” Mr. Ahamadi submitted.
He said the suit before the trial judge sought to categorically change the religious character of the mosque.
Mr. Ahamadi argued that the trial judge’s order violated Sections 3 and 4 of the Places of Worship Act, 1991 which mandated that “you cannot tinker with any place of worship which has been existing and where worship has been performed as on August 15, 1947”.
The senior lawyer invoked the court’s own ruling in the Ayodhya judgment that a mere claim of “historical wrong” cannot be the basis for changing the nature of a place of worship. He also argued that the Allahabad High Court had in the past dismissed a similar petition seeking an Archeological Survey of India survey at the mosque premises, supposedly to find the remains of a pre-existing temple.
“The protection of places of worship was a Constitutional guarantee and formed a part of the Basic Structure of the Constitution... All the orders, including appointment of the Commission, should come to a standstill. Status quo, as existed before the suit was filed, should be maintained. All these orders are illegal,” Mr. Ahamadi pressed.
A view of the Gyanvapi mosque after its survey by a commission, in Varanasi on May 17, 2022. | Photo Credit: PTI
He said the orders of the trial judge, including the one on May 16, were passed ex parte, that is, without hearing the other side. The trial judge had passed these orders instead of first deciding his client’s challenge under Order 7 Rule 11 of the Civil Procedure Code, seeking the rejection of the women’s suit for lack of cause of action. The women, he claimed, had to show in their suit the legal injury they had suffered from the existence of the mosque.
“Again, the Commission was still conducting its inspection on May 16 when the application was suddenly filed in the trial court about the finding of the Shivling... The trial court, within an hour of the women’s application and without even waiting for the Commission report, ordered the premises to be sealed... The order does not show an element of fairness,” Mr. Huzefa submitted.
The senior lawyer reminisced how the Allahabad High Court, on April 21, had dismissed their petition to stay the trial judge’s orders, saying they were “innocuous” by nature.
“Look what the orders have led to... The HC has been proved substantially wrong,” Mr. Ahamadi said.
The court issued notice to the plaintiffs (the Hindu women who filed the suit). Their lawyer, advocate Hari Shankar Jain, could not appear in the apex court as he had taken ill. The Bench scheduled the next hearing on May 19.
