The Supreme Court on Thursday, 21 July, refused to hear a petition by Hindu parties asking for carbon dating of the alleged 'Shivling' found on the premises of the Gyanvapi mosque in Varanasi, directing them to withdraw their plea and follow through with their suit in the district court asking for rights to pray there.
The Hindu petitioners also agreed to withdraw another petition filed by them asking for permission to make offerings of water to the alleged 'Shivling'.
The masjid committee of the mosque has strongly contested this claim of a 'Shivling' being found during a survey by a commission appointed by the civil court which was originally hearing the suit, arguing that this is part of the wazukhana fountain in the mosque, used for ritual washing before offering prayers.
The apex court also deferred hearing the main case relating to the Gyanvapi mosque that is before them – the masjid committee's challenge to the orders of the civil judge appointing a survey commission and then sealing part of the mosque based on the claims about the alleged 'Shivling'.
The bench of Justices DY Chandrachud, Surya Kant and PS Narasimha said they would only take up this matter after the district court makes a decision on the Order 7 Rule 11 application filed by the masjid committee against the suit by several Hindu women devotees asking for rights to pray to Hindu deities in the mosque.
The same bench had, on 20 May, transferred the suit by the Hindu women from the civil judge in Varanasi (who had been hearing it and passing orders) to the district judge, as they were were "more senior and experienced" and would be better placed to address the complex issues in the matter.
The district judge was ordered to hear the Order 7 Rule 11 application challenging the maintainability of the case, filed by the masjid committee, expeditiously. A defendant in a civil suit can file an application under Order 7 Rule 11 of the Code of Civil Procedure to get the suit dismissed on the basis that there is no cause of action, ie no legal basis for the case.
The masjid committee has argued that the case filed by the Hindu devotees is barred by the Places of Worship Act 1991, which forbids conversion of an place of worship or changes to the status of a place of worship which has been in existence since before 15 August 1947.
The civil judge in Varanasi had not taken up this objection to the case, and instead allowed a plea by the Hindu devotees for a video survey of the mosque, appointing commissioners to conduct the same.
During the survey, the lawyer for the Hindu plaintiffs rushed to the court contending that a 'Shivling' had been found on the premises and therefore asked for that part of the mosque to be sealed off and entry of Muslims for prayer restricted. The civil judge granted the request without granting the masjid committee a chance to be heard.
The Supreme Court passed an interim order on 17 May protecting the rights of Muslim worshippers to enter the mosque without interference, while nonetheless allowing for measures to be taken to protect the contested structure. This interim order was extended on 20 May and remains in force.
Senior advocate Huzefa Ahmadi, appearing for the masjid committee, urged the Supreme Court to take up the challenge to the orders of the civil judge as these were having an adverse effect not just in this case but also in other cases across the country asking to take over mosques which are claimed to have been built on Hindu structures in the past.
During the previous hearing, he had argued that this was setting a precedent that would render the Places of Worship Act 1991 meaningless, but the court had not agreed to rule on the matter immediately or pass an interim order regarding such pleas.
The Varanasi district judge continues to hear arguments over the Order 7 Rule 11 application.
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