New Delhi: A three-judge bench of the Supreme Court on Friday, August 4, upheld an order by the Allahabad high court allowing the Archaeological Survey of India (ASI) to conduct its investigation of the Gyanvapi mosque in Varanasi.
The bench, comprising Chief Justice of India D.Y. Chandrachud as well as Justices J.B. Pardiwala and Manoj Misra, was hearing a petition by the Anjuman Intezamia Masjid Committee – which manages the Gyanvapi mosque – challenging the high court’s August 3 order.
That order had in turn upheld a July 21 order by the Varanasi district court ordering the ASI survey in the first place, intended to find out whether the mosque had been constructed over a pre-existing Hindu temple.
ASI officials arrived at the site early on Friday morning to begin their survey.
The apex court’s dismissal of the masjid committee’s petition means that the ASI will continue examining the controversial religious complex.
But the three-judge bench ordered the archaeological body to carry out its survey through “non-invasive” processes, LiveLaw reported.
The masjid committee had planned to boycott the ASI’s survey of the Gyanvapi mosque, but journalist Omar Rashid tweeted on Friday afternoon that it has decided to cooperate with it in light of the top court’s ruling.
Just in: After initially boycotting the ASI survey of Gyanvapi Masjid, its caretakers now, following the SC upholding the survey, have decided to co-operate with ASI
The Muslim party hopes the survey will be carried out in an impartial manner, without hurting the mosque@seemay
Advertisement— Omar Rashid (@omar7rashid) August 4, 2023
Representing the committee in the top court, senior advocate Huzefa Ahmadi had argued that the Places of Worship Act, 1991 – which prohibits altering the religious character of a place of worship as it existed on August 15, 1947 – would be violated if the survey was conducted.
“By ordering the survey, and by going back in the history as to what happened 500 years ago, are you not violating the Places of Worship Act?” Ahmadi asked the court.
He also said that “when you start a survey, you are unravelling the wounds of the past. And it is the very same thing the Places of Worship [Act] seeks to prohibit”.
But Justice Pardiwala told Ahmadi that if the suit stating that the mosque houses Hindu deities – which is what prompted the Varanasi court to order the ASI survey – is not found to be maintainable, the results of the survey would not matter.
“Consider it from a different angle. Your principal argument is why undertake the survey when the suit’s maintainability is questioned. This survey is going to be in the form of a report. Tomorrow, if you succeed in getting the plaint rejected, this survey will be nothing but a piece of paper,” he said according to LiveLaw.
“Let the survey take place because of the assurance given by Mr. Mehta that there is no invasive method. Let the report be given in a sealed cover.”
Chief Justice Chandrachud also said that the mosque side will be able to challenge the ASI’s findings if they wished to do so.
“But Mr. Ahmadi, this is an interlocutory order appointing a commissioner. Why should the Supreme Court interfere? We will keep open all issues regarding maintainability, objections to commission evidence,” LiveLaw quoted him as saying.
He continued: “Even in the Ayodhya case, a great deal of argument was made on the evidentiary value of ASI survey. These are issues to be addressed at the final hearing as to what is the evidentiary value of the survey. We will safeguard the structure.”
Also Read: Understanding the Gyanvapi Mosque Case: What Does the Places of Worship Act Say?
The masjid committee has also expressed apprehensions about the possibility that the survey might damage parts of the mosque.
“From the beginning, we have had apprehensions that the building may get damaged because it is an old structure. We claim it is 600 years old. The other side claims that it is even older – 1,000 years,” Farman Naqvi, a lawyer for the committee, told The Wire.
“The building is not made from modern material or with modern technology. If a loose brick falls from somewhere, who will be responsible?”
But the Supreme Court bench said that given the ASI’s assurances that no damage would occur, it was not inclined to stop the survey.
“It is clarified on behalf of the ASI by solicitor general of India Mr. Tushar Mehta that as a matter of fact, the entire survey will be completed without any excavation at the site and without causing any destruction to the structure,” the bench’s order said.
Appearing for the temple side, senior advocate Madhavi Divan also said, “Ultimately, it is the ASI. Its job is to preserve monuments … so surely they cannot damage it. They know better.”
The bench’s order continued to say, “The order of the learned trial judge passed under Order 26 Rule 10A of the CPC cannot be prima facie at this stage to be said as without jurisdiction … Having regard to the nature and ambit of a Court-appointed commissioners, we are unable to differ with the view of the High Court, particularly in the jurisdiction under Article 136.”
