Declining to stay proceedings before a Varanasi court on matters related to the Kashi Vishwanath temple-Gyanvapi mosque complex, the Supreme Court Tuesday asked the Varanasi district magistrate to secure the area where a Shivling was claimed to have been found during a videographic survey of the mosque area without impeding or restricting the rights of Muslims to access and offer namaz at the mosque.
The bench of Justices DY Chandrachud and PS Narasimha, hearing an appeal by the Committee of Management of Anjuman Entezamia Masjid, Varanasi, said there is lack of clarity on whether the trial court, in its May 16 order, had directed only protection of the Shivling or had granted also the other reliefs sought – to restrict to 20 the number of Muslims who can enter the mosque and offer namaz, and to stop the use of the wazu khana for ablution.
Asking Solicitor General Tushar Mehta, who appeared for the State of Uttar Pradesh, to clarify this, the bench said “in order to obviate any dispute on the meaning and content of the order of the trial judge, the operation and ambit of the dated order May 16, 2022 shall stand restricted to the extent that the District Magistrate, Varanasi, shall ensure that the area where the Shivling is reported to have been found, as indicated in the order, shall be duly protected.
Issuing notice and posting the matter for May 19, the bench, however, clarified that this “shall not in any restraining manner or impede the access of Muslims to the mosque or the use of the mosque for the purpose of performing namaz and religious observances” . The mosque commission said what was claimed to have been found was not a Shivling but part of a fountain. It repeatedly sought a stay on dates before the Varanasi court, but the bench declined to do it and said “We have to balance it out. We will say DM has to ensure the area is protected without affecting the right of Muslims to enter and worship.”
In Varanasi, District Government Counsel (Civil) Mahendra Prasad Pandey filed an application in the court, seeking the shifting of water pipelines from the area that was sealed by the administration following the order Monday. The objective of the application is that the faithful can get water for wazu before offering namaz. The court will hear the application Wednesday.
In his application, DGC Pandey said entry of people has been restricted in the sealed area. He said the sealed premises is a three-feet deep manmade pond and around it there are pipelines and taps which the faithful use for wazu. “It appears essential to shift the pipelines outside the sealed area for wazu.” He said there’s fish in the pond and sealing the area poses a threat to the fish and necessitates their relocation.
Hearing a petition by five Hindu women seeking access to pray at “a shrine behind the western wall of the mosque complex”, the Varanasi court, on April 8, appointed Advocate Commissioner Ajay Kumar Mishra to carry out an inspection of the site, “prepare videography of the action” and submit a report. The mosque committee challenged this before the Allahabad High Court which dismissed the plea on April 21. The committee then approached the Supreme Court.
Appearing for the committee, senior advocate Huzefa Ahmadi told the bench: “Very, very clearly, the prayers (in the suit) categorically speak about changing the religious character of this particular structure which presently is a mosque.”
He said the committee had filed an application challenging the maintainability of the suit stating that it is barred in light of the Places of Worship Act, 1991, which forbids changing the religious character of any place of worship after August 15, 1947. The application, he said, was not decided and is still pending.
Ahmadi said even before the report of the survey commission was submitted, the plaintiff filed an application “that during the course of the inspection, he noticed the Shivling somewhere near a pond”.
“Proceedings of the commission are bound to be confidential…, trial court entertains the application and directs sealing of the area on May 16… What is happening is that under the garb of commission proceedings and the oral say of plaintiff, as to what according to to him what he saw, the status quo is sought to be altered, this particular area is sought to be earmarked, the extent of prayer in mosque is sought to be restricted to only 20, and it is also ordered that this area should be altered … The application is allowed,” he said.
Justice Chandrachud said the matter before the bench was not in respect of the May 16 order.
Ahmadi said his argument is that “right from inspection order, all orders are non-est. This is clearly in the teeth of your judgment in the Ayodhya judgment. Your lordships interpreted Sections 3 and 4 of Places of Worship Act and categorically say you can’t tinker with any place of worship which has been existing and where worship is being performed as on August 15, 1947.”
The bench suggested that he will ask the trial court to first hear the committee’s application challenging the maintainability.
Ahmadi, however, pressed for a stay, saying the orders are bereft of jurisdiction – interdicted by the Act of Parliament and also by the Supreme Court’s Ayodhya judgment. In a prior suit where an identical prayer was sought for a survey by the Archaeological Survey of India, the High Court interdicted it, he said.
Referring to the May 16 trial court order, Justice Chandrachud told the Solicitor General that it seems to indicate that all prayers sought for by the plaintiffs had been allowed. The bench said clarity was needed on this. Mehta said he would take instructions on the position.
Told that advocate Hari Shankar Jain, the counsel for the plaintiff, had taken ill, the bench said it would issue notice and, in the interim, direct protection of the Shivling while not restricting the access of Muslims to the complex. The court sought to know “where exactly is the Shivling found”. Mehta said it will be known only when the report is filed.
Ahmadi said he “objects to the manner in which the suit is being proceeded with… Till the date of the moving of the suit, the status quo was as it stood earlier. Now today, by passing these orders, you are effectively changing the status quo by restricting movement around a particular area. This is a fountain… the head of the fountain, according to them… is a Shivling.”