New Delhi: The Supreme Court’s decision to halt proceedings in suits seeking control over religious places has been welcomed by Muslim bodies and the caretakers of several mosques that were under the target of Hindutva activists.
But S.M. Yasin, the joint-secretary of the Gyanvapi Masjid, feels that things would not have gone this far had the court halted the survey of the Mughal-era mosque in Varanasi in August 2023 when it had the chance to enforce the Places of Worship Act, 1991.
Reacting to the apex court’s decision, Yasin told The Wire he was relieved by this order, which has, for the moment, given a sense of hope to the Muslim community whose places of worship were under threat after courts entertained suits by Hindutva activists seeking to dispossess them.
“We were the most aggrieved. All the mischief started from here,” said Yasin, reflecting on the Supreme Court’s nod to a controversial scientific survey of the Gyanvapi Masjid premises by the Archaeological Survey of India (ASI) to determine if it was constructed over the pre-existing structure of a temple.
“When the Supreme Court allowed the survey of the Gyanvapi, I had said that ‘now, people will start digging for temples in every nook and corner’. And that is what happened,” said Yasin, joint-secretary of the Anjuman Intezamia Masajid, Varanasi, which manages the mosque.
On December 12, a three-judge bench of the Supreme Court led by Chief Justice Sanjiv Khanna, while hearing petitions challenging the Places of Worship Act, directed that courts in the country not register any new suits claiming other religious places.
The apex court also barred courts from passing any effective interim or final orders, including directions for surveys, in pending suits till further notice.
The court’s directions to suspend all proceedings in such suits have come as a big relief to several mosques under judicial siege, in particular the Gyanvapi Masjid, where it all started following the resolution of the Babri Masjid matter with the construction of the Ram Mandir on the directions of the highest court.
Hindutva activists have sought to evict Muslims from the Gyanvapi Masjid and sought rights to carry out Hindu puja in its premises. They have so far succeeded in getting a part of the mosque – its wazukhana (ablution tank) – sealed and the right to conduct puja in the mosque’s basement.
For several decades and especially in the last four years, Yasin and other caretakers of the Gyanvapi Masjid have been resisting attempts by Hindutva activists to evict them from the premises and transfer the property to Hindus.
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The original suit of 1991 in which Hindu activists seek control over the mosque is still pending, while newer Hindu plaintiffs are now arguing in court to get the sealed part of the structure surveyed.
“I am very happy. Now there will be peace and harmony. And those spreading hate will have to shut their shops,” said Yasin on the relief by the Supreme Court.
He, however, maintains that the situation could have been avoided had the previous Chief Justice of India (CJI), D.Y. Chandrachud, taken a firm stand in enforcing the Places of Worship Act, which safeguards pre-independence religious places from unlawful conversion or alteration of character.
“This should have come to an end two years ago. But the ex-CJI engaged in ‘intellectual cheating’ through his fine moves,” said Yasin, accusing Justice Chandrachud of weakening the Places of Worship Act.
In 2022, while hearing a petition in the Gyanvapi Masjid matter, Justice Chandrachud had orally observed that the 1991 Act prohibited altering the character of a religious place but did not prevent courts from ‘ascertaining’ the religious character of any place of worship.
Then, in August 2023, a bench led by Justice Chandrachud upheld the Allahabad high court’s decision to allow a scientific survey of the Gyanvapi Masjid by the ASI.
The high court had dismissed the Gyanvapi Masjid caretaker’s petition challenging a Varanasi district judge’s July 2023 order for a survey of the premises by the ASI. While restoring the order passed by the Varanasi district judge, the high court had argued that “the scientific survey/investigation proposed to be carried out” was “necessary in the interest of justice and shall benefit the plaintiffs and defendants alike and come in aid of the trial court to arrive at a just decision.”
The high court had restored the order of the district judge, who had directed the ASI director to undertake scientific investigation, survey or excavation at the site i.e. settlement plot no 9130, excluding the areas (the ablution tank) sealed by the Supreme Court in 2022 after lawyers representing five Hindu plaintiffs claimed that a shivling was found in the ablution tank during a court commissioner-led video inspection.
The Muslim side, however, had insisted – and continues to do so – that the said object was not a shivling but part of a stone fountain in the ablution tank.
The matter reached the Supreme Court, which uphled the high court order. While allowing the survey, a bench of then-CJI Chandrachud and Justices Manoj Misra and J.B. Pardiwala stressed that there would be no excavation at the site or any destruction of the structure. The court said the entire process would be concluded through a non-invasive methodology. The ASI survey was allowed to happen.
In its survey report, the ASI claimed that a “large Hindu temple” existed there prior to the construction of the existing structure, i.e. the mosque, and that parts of the temple were used in the construction of the Islamic place of worship.
Yasin feels the stance of the Supreme Court in the Gyanvapi matter opened a pandora’s box and encouraged Hindutva activists to file frivolous suits and applications in various districts and states claiming possession of well-established mosques or seeking surveys to ascertain if they were built on the ruins of temples.
In all the cases – ranging from Varanasi to Sambhal, Mathura, Lucknow, Jaunpur, Agra and Budaun – courts decided that the suits filed by the Hindu side were not barred by the Places of Worship Act.
In the recent hearing on the 1991 Act, petitioners filed in court a list of 17 well-known mosques and shrines across the country that had been subject to various suits.
“Had the Supreme Court decided the Gyanvapi matter properly, all these cases would have never emerged,” said Yasin, who is also hopeful that the mosque’s challenge to the maintainability of the suits in the Gyanvapi matter would also be seen in light of the new development.
He regrets that the relief from the Supreme Court came too late for some, in particular the four Muslims who lost their lives during a controversial survey of the Shahi Jama Masjid in Sambhal on November 24.
“Had it been done two years ago, there would not have been a Sambhal. Valuable lives would not have been lost. Who will take responsibility for that?”, he asked.
The first survey of the Sambhal mosque was carried out in a hurried manner on November 19, in less than three hours after a local court passed orders for it on an application by Hindutva activists. They claimed that the mosque was the site of an ancient temple dedicated to Kalki, the prophesised tenth avatar of the Hindu deity Vishnu.
The caretakers of the Gyanvapi Masjid have at various junctures argued that the question of the mosque’s religious character was settled by the decision of the additional civil judge in 1937 in the Din Mohammad vs The Secretary of State for India in Council case. In that case, the court had declared that only the mosque and graveyard with land underneath were Hanafi Muslim Waqf and that the Muslim plaintiffs and other Hanafi Muslims had the right to offer prayer and do other religious but legitimate acts only in the mosque.
This 1937 order made the structure out of bounds under the 1991 Act, the mosque argues. But courts have not considered this as evidence, and have provided relief to Hindu plaintiffs at various junctures.
In December 2023, the Allahabad high court dismissed several pleas of the Uttar Pradesh Sunni Central Waqf Board and the masjid committee challenging the maintainability of a suit seeking the restoration of a temple at the site of the Gyanvapi Masjid.
“The dispute raised in the suit is of vital national importance. It is not a suit between the two individual parties. It affects two major communities of the country,” Justice Rohit Ranjan Agarwal said as he set a six-month deadline for the completion of proceedings in a Varanasi court in the 1991 suit.
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The judge also ruled that the original suit of 1991 was not barred by provisions of the Places of Worship Act.
In January, a district judge in Varanasi – on his last working day before retirement – allowed Hindus to worship inside a sealed basement of the Gyanvapi Masjid.
The Gyanvapi Masjid survey was followed by the Allahabad high court in December 2023 allowing the application of Hindu plaintiffs demanding an advocate commission to survey the Shahi Idgah Masjid in Mathura, another top target of the Hindu right in its bid to claim Muslim heritage property across the country.
The Hindu plaintiffs claimed there were a number of signs of Hindu religion in the structure of the mosque. In the high court, they “heavily relied” upon the judgment of the Supreme Court under CJI Chandrachud in the Gyanvapi matter in August 2023.
The Supreme Court in January 2024, however, put a stay on the execution of the high court order a day before the latter was scheduled to hear arguments on the composition and modalities of the advocate commission survey at the Mughal-era Shahi Idgah Masjid.
There are a total of 18 suits filed by Hindu plaintiffs seeking the removal of the Shahi Idgah Masjid. They are being heard in the high court.
The All India Muslim Personal Law Board (AIMPLB) on Thursday welcomed the Supreme Court’s interim order on the Places of Worship Act.
In a statement, AIMPLB spokesperson S.Q.R. Ilyas stressed that local courts were undermining the spirit of the Places of Worship Act by entertaining petitions and issuing orders concerning mosques and shrines.
“The manner in which local courts declared appeals admissible and issued orders on mosques and dargahs had made this act ineffective,” he said.
