An application was filed by the Uttar Pradesh Central Sunni Waqf Board on Tuesday in the Allahabad High court seeking to restrain proceedings of a Varanasi court that instructed the Director-General of the Archaeological Survey of India (ASI) to “get a comprehensive archaeological physical survey” done of the contentious Kashi Vishwanath Temple-Gyanvapi Mosque complex.
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Analysis of the dispute
Often overshadowed by the Ayodhya issue, the disputed claim is that the temple was demolished by Mughal Emperor Aurangzeb, following which the mosque was erected using the temple’s remains. The case dates back to as early as 1984 when 558 Hindu seers from all around the nation had assembled in the heart of Delhi. They gathered together for the first religious parliament, where amongst various other resolutions was a nationwide call for the Hindus to lay claim to the Holy shrines in Varanasi, Mathura, and Ayodhya.
The order to carry out a survey was passed by the Fast-Track Court Civil Judge (Senior Division) Ashutosh Tiwari on Thursday on a petition filed by lawyer Vijay Shankar Rastogi, on behalf of Swayambhu Jyotirlinga Bhagwan Vishweshwar, the main deity of the temple back in 1991. The court directed the ASI to conduct research to “find out whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is a structural overlapping of any kind, with or over, any religious structure.” The court also adjured the Uttar Pradesh government to bear the cost of the survey, and further opined that it should ‘preferably’ have two members of the minority community. This petition was vehemently opposed by the AnjumanIntezamia Masjid (AIM), i.e., Gyanvapi Mosque Management Committee.
The managing committee of the Gyanvapi mosque in Varanasi and the Uttar Pradesh Sunni Central Waqf Board approached the Allahabad High Court seeking to restrain the directives of the fast-track court. The petitioners had alleged that the civil judge disregarded the directives issued by the Places of Worship (Special Provisions) Act, 1991 and the Order 7 Rule 11D of the Civil Procedure Code. As per the above provisions, “the religious character of a place of worship existing on August 15, 1947, shall continue to be the same as it existed on that date” and that “no suit, appeal or other proceeding with respect to … such matter shall lie on or after such commencement in any court, tribunal or other authority.”
The applicants had further alleged that the civil judge has acted in the “most arbitrary manner” by superseding the provisions enshrined in the Places of worship act, 1991. The application filed before the Allahabad HC further stated that the civil judge intended to establish himself above the judicial hierarchy bypassing all judicial disciplines and procedures established by Law without taking into consideration the legal impediments and bars.
At a time when the embers of demolition of Babri Masjid have not fully doused and continues to remain a hotly debated issue in the legal fraternity, the diktat issued by the civil judge by violating the procedure of the Places of worship act, 1991 can be seen as an overt display of judicial overreach. The court’s mandate is to interpret the statute because of its inherent duty to act according to the true intention of the legislature to enforce the Law and prevent the miscarriage of justice. However, in this case, the court overlooked the procedural norms. It invoked the jurisprudence of whims and fancies by directing the DG of the ASI to undertake a comprehensive physical survey of the mosque.
It is an established fact that scores of temples were demolished during the Mughal rule; however, if one were to undertake the restoration of all temples that are buried under functioning mosques, it would be a grave injustice to the established norms and may lead to divisiveness between the two most prominent faiths in India.
The views and opinions expressed are those of the author and do not necessarily reflect the views of The Brief Bulletin.