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Gyanvapi Mosque: SC Issues Notice, Says Entry of Muslims Must Not be Restricted

Bench says area where alleged 'Shivling' was found is to be protected without impeding right of Muslims to pray.

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Video Editor: Prajjwal Kumar

The Supreme Court on Tuesday, 17 May, issued notice on pleas challenging the orders of a district court regarding the Gyanvapi Mosque in Varanasi, and passed an interim order that while the area within the mosque where an alleged 'Shivling' was said to be found should be protected, Muslims must not be restricted from entering and praying in the mosque.

The court will next hear the matters on Thursday, 19 May.

The bench of Justices DY Chandrachud and PS Narasimha was hearing pleas filed by the Anjuman Intezamia Masjid's management committee challenging the Allahabad High Court's refusal to stay the 'survey' of the mosque ordered by a Varanasi district court in response to pleas by Hindu petitioners for access to parts of it.

The mosque committee had asked for the maintenance of status quo at the building, on the basis that its status as a mosque was protected by the Places of Worship Act 1991.

Under this law, there can be no change in the status of a religious building that has been established before 15 August 1947, as is the case with the Gyanvapi Mosque in Varanasi.

On Monday, 16 May, the Varanasi court ordered the sealing of part of the mosque on the basis that a 'Shivling' had been found on the premises. This order was also challenged by the masjid committee on Tuesday.

Senior advocate Huzefa Ahmadi, representing the masjid committee, took the bench through the pleas filed by the Hindu plaintiffs in the Varanasi court.

"These prayers very very clearly speak about changing the character of the building, which is a mosque," Ahmadi argued. He noted that the appointment of the commissioner to conduct the video survey by the Varanasi court had been passed ex-parte, ie, without hearing the mosque's managing committee.

You can follow all updates from inside and outside the courtrooms on The Quint's live blog on the Gyanvapi Mosque issue here.

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He then noted the Allahabad High Court's reason for not staying the video survey of the mosque: that it was an "innocuous" order.

Ahmadi explained how subsequent events have shown this was not the case, with a lawyer for the Hindu parties in Varanasi, Hari Shankar Jain, approaching the district court with an application for sealing part of the mosque because of the discovery of the alleged 'Shivling'.

This was then agreed to by the Varanasi court despite it not yet receiving the commissioners' report, purely on the claims by the lawyer.

"Under the garb of the inspection, on the basis of comments by the plaintiff, the court has sealed off part of the mosque, restricted access to it for Muslims," Ahmadi told the bench.

He then explained that the masjid committee was challenging all the orders by the Varanasi court, as these violated the Places of Worship Act 1991, as well as a previous Allahabad High Court decision in a different case relating to the Gyanvapi Mosque, staying an order for an ASI survey at the site.

Justice Chandrachud asked Ahmadi if the orders, including for the sealing relating to the Shivling discovery, really violated the 1991 Act. Ahmadi argued that it did, and asked the bench to consider the maintainability of the case because of the protection of status of a place of worship under the Act.

He pointed out that the entire basis of the original plaint in the Varanasi court by Hindu devotees was based on the idea of righting historical wrongs, which was what the 1991 Act had sought to put an end to.

Ahmadi also contested the claims about a 'Shivling' being found at the mosque, noting this was actually just part of a fountain used for the ritual washing before the offering of namaz ('wazukhana').

Solicitor General Tushar Mehta, arguing for the state of Uttar Pradesh, requested time to get the full facts about the situation and urged the apex court not to pass any order till then, as there should be no "unintended consequences" from the bench's decision.

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What is This Case All About?

Five Hindu women have sought round-the-year access to pray at “a shrine behind the western wall of the mosque complex”. The site is currently made open for Hindu prayers once a year.

A Varanasi court had in April ordered a video inspection of the site, but the survey could not take place as the mosque committee opposed the videography inside the mosque, and accused Advocate Commissioner Ajay Kumar Mishra of bias and demanded his replacement.

The local court, however, on Thursday, 12 May, ordered that the survey work will continue, and instead of replacing Mishra, appointed two more lawyers — Vishal Kumar Singh and Ajay Singh — to accompany him.

The Allahabad High Court refused to stay this order despite it being argued by the masjid committee that the mosque was protected by the Places of Worship Act, resulting in the pleas at the Supreme Court.

Hindu Sena president Vishnu Gupta has approached the Supreme Court as an intervenor, saying that the Gyanvapi Mosque is not protected by the Places of Worship Act, under Section 4(3) of the Act.

This provision stipulates that the status protection under the Act will not apply to a place of worship "which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958".

Gupta argues that parts of the erstwhile Kashi Vishwanath temple and Shringar Gaur temple are visible at the mosque, and so would attract the exemption in Section 4(3).

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What Supreme Court Said About the Places of Worship Act in the Ayodhya Judgment

The apex court in its 2019 Ayodhya five-judge bench judgment held that the Places of Worship Act 1991 "protects and secures the fundamental values of the Constitution."

The judges observed that secularism is one of the basic features of the Constitution, as previously affirmed by a constitution bench of the Supreme Court in the SR Bommai case. And the 1991 law was a vital step by the government to "protect the secular features of the Indian polity."

"In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered."
Supreme Court in Ayodhya Judgment, para 82
"The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution."
Supreme Court in Ayodhya Judgment, para 83

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