"The selective leaks of Commission report must stop," Supreme Court Justice DY Chandrachud had said with regard to the Gyanvapi masjid survey report which was (at that point) yet to be filed in a Varanasi Court, but had already made its way in bits and pieces to an agog audience of people invested in the mandir-masjid conflict.
In fact, days after the survey report had been filed, on Monday, 30 May, Hari Shankar Jain, counsel for the Hindu plaintiffs in the case, had, according to Bar and Bench, told the district judge:
"Report toh sab padh chuke hai , koi secret nahi hai (Everyone has read the report. Nothing is a secret)."
Advocate Jain's remarks had come as the plaintiffs sought details of the survey report (copies of the photographs, videos et al) to be made available to them.
The judge on his part said that the report is only under wraps for the sake of bhaichara (communal harmony) and shanti (peace), but subsequently shared the report – with conditions.
Each of the plaintiffs who received the report (four out of the five Hindu women, according to LiveLaw) were asked to pay ₹2,100 for the video recording and made to sign an undertaking to "not copy the video of the commission survey report and not leak the report."
"Bina adalat ke order ke sarvajanik nahi karege (Will not make the material public without a court order),” the undertaking further said, according to Bar and Bench.
Yet, on Monday evening, only a little after all the material is said to have been shared with the plaintiffs, several television news channels started running the same, with self-congratulatory claims of detailing or exclusivity. The video also went viral on the internet.
Links still available on YouTube, describe the broadcasts as "cleanest video of claimed shivling", "latest survey video tapes" and — perhaps more directly — "gyanvapi masjid survey video leaked".
The obvious question that emerges from this development is what went wrong? How did the footage make its way to the public despite the court imposing restrictions?
'Envelopes Are Sealed': Counsel for Hindu Plaintiffs Expresses Alarm Over Leaks
Expressing alarm over the leak, Vishnu Shankar Jain, one of the lead counsels for the Hindu plaintiffs in the case told The Quint that they had not even opened the sealed envelopes (in which they received the relevant material) when the video went out.
"We still haven't unsealed them, and the plaintiffs have gone to the court today with the envelopes that continue to remain sealed," he added, on Tuesday afternoon.
He did, however, confirm that the video being broadcast on TV is in fact from the survey, pointing out that he had been present during the survey while it was underway and therefore could speak for its veracity.
According to LiveLaw, one of the plaintiffs, Rakhi Singh, has also moved the the Varanasi District Court seeking a CBI probe into the leak. Further she alleged that broadcast of the videos on the news channels falls under the category of a heinous crime and went on to claim that anti-national elements might be involved in the same.
'We Hadn't Even Received the Material Yet': Masjid Committee Moves Court Seeking a Probe
Meanwhile, advocate Abhay Nath Yadav, counsel for the Masjid Committee (the defendants in the case) told The Quint that they had not even received the materials from the court yet.
"We were supposed to take it today. But because the footage has gone viral, we will not be taking it now," he further said, pointing out that the leak casts a shadow of doubt over the trustworthiness of the report.
The Masjid Committee has also filed an application at the court seeking a complete probe of the matter.
"We have filed an application in the district court seeking a complete probe of the footage that has gone viral. Who all are involved, where it come from, who has broadcast it, everything in connection with the matter should be probed. Strict action should be taken and all those who are found to be involved in the leak should be penalised in accordance with law."Advocate Abhay Nath Yadav, counsel for the masjid committee
When 'Evidence' Makes its Way Out...
"It is a rule of law that evidence will not go outside the presence of the court. Nobody has the right to access any evidence and a local commissioner’s report in law would constitute evidence to be considered before the court," former Chief Justice of the Bombay and Rajasthan High Courts, Pradeep Nandrajog, told The Quint.
Given that and the sensitivity of the matter, according to the retired chief justice, the district court was fully justified in barring the sharing of the document with the public, and seeking an undertaking in the same regard.
"The court was fully justified in saying you will not share it. If it is found that a party barred from sharing the document has done so, the consequence can be as severe as a court order to non-suit the party (remove the plaintiff from the suit)," Justice Nandrajog added.
But according to him the court cannot do much now, in this case, as the damage is already done. He further elaborated:
"The court can only put a gag order now barring further discussion. But someone can say the gag order is always used in defamation suits, in a non-defamation suit it is never there. So this public debate cannot be stopped. In this situation, the court has to only live with the fait accompli," he said.
But is there a way to find out who caused the leak?
Even though Justice Nandrajog was of the opinion that trying to find out who the culprit is in this case might just be an academic exercise sans much consequence, a Supreme Court advocate, on the condition of anonymity, suggested that courts may be able to spot the leak if contempt proceedings are initiated and if those who broadcast the footage are brought under its ambit.
"In contempt cases," he explained, "the contemnor has a choice to purge their contempt. In doing so, they might agree to share where they got the footage from in the first place."
An Advocate on Record suggested that even the top court can initiate contempt proceedings in the matter.
Justice Nandrajog, however, told The Quint that in case it is found that the leak was caused by a third party, they can just say: "I did it and I am not circulating anything which is prohibited by law (for a third party to do), so what’s the point?"
Previously on 19 May, details about a ‘shivling’ indicated to have been found during the survey were leaked in public domain.
Shortly after the leak the advocate commissioner in charge of the survey Ajay Kumar Mishra was sacked from his post, and separately Supreme Court Justice Chandrachud had verbally remarked:
“We must tell the other side that the selective leaks must stop. It should be submitted to the court. Do not leak things to the press. You must present to the judge.”
What is The Case Exactly?
The plaintiffs in the case have, in their original petition, sought round-the-year access to carry out Hindu rituals at “a shrine behind the western wall of the (Gyanvapi) mosque complex”. The site was so far made open for Hindu prayers once a year.
Presently the Varanasi district court is hearing a challenge by the masjid committee to the maintainability of the petition on grounds that it is barred by The Places of Worship Act. This Act expressly bars conversion of any place of worship into anything different from the religious character of the place as it was on 15 August 1947 (with the exception of the Ayodhya dispute).
(With inputs from LiveLaw and Bar and Bench.)