Gyanvapi Mosque Dispute #3: Case Transferred to Varanasi District Judge

Refusing to hear the Gyanvapi Mosque Dispute themselves, on May 20th, 2022, Justices D.Y. Chandrachud, Surya Kant, and P.S. Narasimha transferred the case from the presiding Varanasi Civil Judge Ravi Kumar Diwakar to the more ‘seasoned hand’ of a Varanasi District Judge. 

The case originates from a petition filed at the Varanasi Civil Court in 2021 by five Hindu women seeking permission to worship at the Gyanvapi mosque, which they claim was built over the razed remains of a Hindu temple demolished on orders of Mughal Emperor Aurangzeb. They further asked for Hindu idols allegedly situated within the mosque to be protected. 

In April 2022, Diwakar J appointed a committee to conduct a ‘videographic survey’ of the disputed site and find evidence of the Hindu idols. The Mosque’s Management Committee approached the Supreme Court on May 13th, 2022, challenging the survey. They stated that the survey may disrupt social harmony. They further argued that the Order allowing the survey violates the Places of Worship (Special Provisions) Act,1991, which protects the character of religious structures as they were on August 15th, 1947. 

The Survey Committee’s findings were leaked to the media before its report was filed at the Civil Judge’s Court—and before the SC started hearing the Management Committee’s case. Based on the leak, the five Hindu petitioners told the Civil Judge that a shiv lingam had been found in the wazukhana of the mosque, or the fountain where Muslim devotees perform ritual ablutions before offering namaz. On May 16th, without waiting for the Committee’s report and without hearing the Mosque Management Committee, who claims the alleged structure is a fountain, the Civil Judge ordered that the wazukhana should be sealed. The Judge has also expressed fear for his and his family’s safety. 

Hearing the Management Committee’s challenge to the survey Order, Justices Chandrachud and P.S. Narasimha delivered an Interim Order on May 17th, 2022. In this Order, they clarified that the shiv lingam must be protected but without restricting Muslims’ right to perform wazu (or wash) and offer namaz. Chandrachud J, one of the five Judges who delivered the 2019 Ayodhya Judgment, emphasised that the Interim Order maintains a balance between both parties’ interests. Kant J joined the Bench on May 19th, 2022, upon Chandrachud J’s insistence that another senior Judge hears the case. In today’s hearings, the Bench remained insistent on maintaining fraternity and balance in the dispute. 

Senior Advocate Ahmadi: Survey violates Section 3 of the Places of Worship Act

Senior Advocate Hufeza Ahmadi, appearing for the Mosque Management Committee, argued that the Supreme Court should vacate the Civil Judge’s survey Order and subsequently declare the survey report inadmissible. He argued that the survey violates Section 3 of the Places of Worship Act, 1991, which bars any changes to the character of religious structures from their form in August 1947. Chandrachud J observed that investigating the nature of a religious structure is not the same as altering it. Mr. Ahmadi argued that the nature of the site in August 1947 was undisputedly a mosque—this did not need investigation. Mr. Ahmadi’s petition arguing against the survey Order is currently pending before the Civil Judge. 

Senior Advocate C.S. Vaidyanathan, appearing for the Hindu women, disagreed. He stated that the Survey Committee’s report, submitted one day earlier, was crucial to determining the nature of the disputed property on August 15th, 1947. It could not be declared inadmissible. 

The Bench noted that the dispute must be investigated by the lower Judiciary based on facts. Chandrachud J noted that without maligning Diwakar J, a case of this importance would benefit from a more ‘seasoned hand’ and transferred it to a District Judge. The Bench directed the District Judge to prioritise Mr. Ahmadi’s petition challenging the survey Order, but did not indicate whether the Judge may rely on the survey report while doing so.  

District Judge To Determine Where Muslims Will Perform Wazu in the Interim

The Bench further ordered that its May 17th Interim Order, directing that namaz should not be restricted while protecting the alleged shiv lingam, would continue to operate until the District Judge decides on Mr. Ahmadi’s challenge to the survey Order. Chandrachud J observed that the Order was sufficient to maintain peace and balance. 

Mr. Ahmadi argued that the reality was far from balanced. He stated that despite the Interim Order, the petitioners had altered the 500-year old status quo of Muslims offering namaz and performing wazu at Gyanvapi mosque. He stated that on the ground, the wazukhana was overrun with police and barricaded with steel bars. He suggested that the fountain, within which the shiv lingam was allegedly located, may be sealed. But, Muslims must be allowed access to the taps outside it, from where holy water for wazu is obtained. 

Solicitor General Tushar Mehta, appearing for the State of Uttar Pradesh, argued that the concern was not simply destruction but also desecration. Allowing access to the fountain’s water would lead to chaos. He stated that alternative arrangements would be made for wazu. 

Without access to a bird’s eye view of the site, and pressed for time owing to Justice L. Nageswara Rao’s retirement ceremony today, the Bench found itself ill-equipped to determine an interim arrangement. It directed the District Judge to consider the issue and come up with appropriate arrangements for wazu while the case was pending. 

The Bench left the Mosque Management Committee’s petition challenging the survey Order pending. If Mr. Ahmadi fails to convince the District Judge, he may approach the High Court on appeal or return to the Supreme Court. As more disputes over the nature of ancient structures erupt all over the country, the Supreme Court is unlikely to hear the Gyanvapi Mosque Dispute for the foreseeable future.