The Supreme Court on Friday declined to halt the Archaeological Survey of India’s (ASI) survey of the Gyanvapi mosque complex in Varanasi, stating that the key factor in any determination made under the Places of Worship (Special Provisions) Act, 1991, is the place of worship’s religious character as it existed on August 15, 1947.
The Varanasi District and Sessions Court ordered the survey on July 21 and the Allahabad High Court upheld it on August 2. The survey started on Friday.
Even though the district court’s judgment permitted excavation if required, the ASI guaranteed the High Court that it would not use that method or any other that could harm the existing structure in any way.
A three-judge panel upholding the High Court’s decision said that “the entire process shall be concluded through any non-invasive methodology” under the direction of Chief Justice of India D Y Chandrachud. The Anjuman Intezamia Masajid Committee has filed a petition challenging the survey order, which the bench was currently hearing.
“At this point, it cannot be assumed that the learned trial judge’s order lacks jurisdiction… In our opinion, the HC made the right decision when it introduced precise directives to limit the scope of the district judge’s ruling. It is clear from reading the district judge’s instructions that they would be open to carrying out an excavation at the location.
However, the ASI explained on affidavit during the hearings before the HC that it was neither conducting any excavation nor will the survey involve any destruction of the property, according to the bench, which also included Justices J B Pardiwala and Manoj Misra.
No excavations will be involved
The bench took note of the Solicitor General Tushar Mehta’s declaration that the survey “shall not involve any excavation at the site or any destruction of the structure,” and ordered that the process be completed “through any non-invasive methodology that the ASI may adopt.” We restate the HC’s directive that no excavation be done at the site, which was in line with the previous announcement. the HC by the Additional SG, and which has been reiterated in the submissions made by the SG before this court on behalf of the ASI”.
According to the statement, “the report that the ASI will prepare shall be remitted to the trial court and shall thereupon abide by the directions that shall be passed by the District Judge at the trial of the suit.”
Ahmadi claimed that the place of worship act is being violated
Senior Advocate Huzefa Ahmadi spoke on behalf of the mosque committee and argued against the decision to conduct an ASI survey, claiming that it was made before the civil lawsuit’s preliminary issues had been resolved and that it therefore violated the Places of Worship Act.
He cited the Act’s aims and justifications, pointing out that it states that a location’s religious character must stay the same as it was on August 15, 1947.
So, there are two bars, the CJI responded. The conversion of any place of worship, regardless of religious affiliation or section, into a different section or religious affiliation is prohibited by Section 3, and Section 4 (1) states that the religious character of a place of worship shall not be altered. Therefore, the true issue is what religion people practiced on August 15, 1947.
The Supreme Court had ruled that “ascertainment of the religious character of a place is not barred” by the Act after hearing the Gyanvapi case in May 2022 as well.
Ahmadi then cited the Supreme Court’s praise for the Act in the Ayodhya decision. “That is a matter for decision,” the CJI added.
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A number of petitions contesting the Act’s constitutionality are currently before the Supreme Court.
“There is one passage regarding the scars of the past,” Ahmadi stated. And Your Lordships claim that the Places of Worship Act is built on this foundation. Now, conducting a survey into those aspects will defeat the Act’s purpose in and of itself. This was Parliament’s intention. This took the shape of a promise made to one group, namely that their houses of worship wouldn’t be harmed. And today, you have a situation where virtually this is only reduced to a homily.”
The CJI said, “Therefore, we are keen to ensure that the mosque should not be touched. We had made it clear when it was sent back (earlier) to HC.”
Ahmadi said the “survey will virtually have the effect of allowing the genie to escape from the bottle”.
The CJI asked, “Why are you apprehensive? If it goes against them, they take the consequences of the survey.”
Ahmadi said, “Survey should not have been ordered in the light of the express diktat of the Places of Worship Act and the object with which it was conceived as interpreted by Your Lordships.”
He said there will now be applications saying something else has been discovered in some other corner and seeking permission to pray.
Salami tactics, I say. attempting to eject me from my property piece by piece. That worries me. There is no status quo in place today. Assume, for example, that tomorrow a request is made to the trial court stating, “Here I found a deity, allow me to do my worship, you are encroaching into my area,” he stated.
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Ahmadi has questioned whether a survey would be permitted if someone filed a “wholly frivolous” lawsuit and claimed that something was discovered underground.
What you consider frivolous is faith to the other side, the CJI told him. How can we assess whether it is unnecessary?
The bench stated that the evidential value of any commissioner report must be determined in a court of law and is subject to challenges, including cross-examination, in an effort to allay concerns about the survey. As a result, the commissioner’s report does not constitute a substantive conclusion on the issues in dispute and is subject to the court’s process throughout the trial.
Unable to disagree with the High Court’s view
The district judge “at this stage” “must notice that the district judge, while acting as a trial judge in the suit, has exercised discretion… to direct a scientific investigation by ASI,” the statement read. After outlining the legal situation, the HC determined that there was no need to intervene.
It said, “We are unable to disagree with the High Court’s view, particularly while exercising the jurisdiction under Article 136 (power to grant special leave to appeal) of the Constitution, having consideration for the character and scope of a court appointed commissioner.
