The Allahabad High Court has called for an Archaeological Survey of India’s (ASI) official to appear before the court to explain the structure and details of the proposed survey at 4:30 pm, July 26. The court expressed “strong doubts” concerning the ASI survey to be conducted at the Gyanvapi premises. The court made the oral observation after the ASI’s counsel failed to explain to the court the exact methodology of the proposed survey.
The Muslim side’s counsel, Senior Advocate SFA Naqvi, argued that the Hindu worshippers lack evidence in the case, and thus, ASI is being used to collect evidence on their behalf. The counsel contended that it was impermissible for ASI to collect evidence.
However, Chief Justice Pritinker Diwaker interjected and asked Naqvi what was wrong with their application if they wished to adduce evidence and the law permitted them to do so, what harm comes to the Masjid Committee? In response, the Muslim side’s counsel argued that there was no evidence to warrant a survey of the premises. He further submitted that the Hindu side had sought excavation at the premises.
In response to Naqvi’s submissions, the Hindu side’s counsel, Advocate Vishnu Shankar Jain, clarified that the ASI is merely using the Ground Penetrating Radar (GPR) method and excavation would be done afterwards, if necessary.
The court then perused the Varanasi Court’s order and noted that the order did not mention how the excavation would be carried out by the ASI. “For the sake of arguments, you can say that you will use machines etc. But excavation means digging. If there is a large stone, you will move it and not put it back…Get the videography done or make a statement that no damage will be caused to the structure,” the court remarked.
In response, Vishnu Jain said that he was indeed making a statement that no damage would be done to the structure. He submitted that the barren land forming the western wall of the alleged mosque would be surveyed by the ASI. He also informed the court that no survey would be carried out in the area sealed by the Supreme Court.
However, Naqvi interrupted Vishnu Jain and said that he cannot trust the statement that no damage would be caused due to “past experiences.” He further said that excavation means that the ASI would dig deep in the ground. The Muslim side’s counsel criticised the Varanasi Court’s order, alleging that there was no application of judicial mind. He further alleged that if excavation is carried out, then the structure might fall.
Vishnu Jain submitted that ASI would use GPR, Radar and Carbon Dating methods to investigate the premises and no damage would be done to the structure. He argued that the commission could be issued at any stage, and the framing of the issue was not required for the same.
He further informed the court that the ASI team was waiting at the site, to which, the Chief Justice remarked, “Why is it waiting? So that as soon as the order is passed, you start? Why the hue and cry?”
The court then asked the ASI’s counsel to explain the method for conducting the proposed survey. The court further asked that if the worshipping was done in the premises till 1993, then why was there no evidence for the same, to which Vishnu Jain replied that he had some evidence. The court asked Jain if he could lead evidence after the report was filed, to which he responded in affirmative.
“Yes. And we do not know as to what will come out of the report of the commission…When this commission will be issued. It will be subject to further examination and cross-examination. The court can accept or disregard the report of the commission. The defendants also have the option to disregard and discredit them in cross-examination. In the Ayodhya Case, the Top Court said that the report of the commission be treated as a piece of evidence and be a part of the record and the commissioner so appointed may be examined in accordance with CPC. The report comes within the definition of expert opinion,” Vishnu Jain submitted.
Vishnu Jain relied upon the Ram Janmabhoomi case to explain how the ASI would use GPR and other methods to conduct the scientific survey of the premises. However, the Chief Justice expressed an inability to understand the technicalities and asked the ASI’s counsel to call for an ASI official to give a demo at 4:30 pm.
Background
On July 25, the Anjuman Intezamia Masjid Committee moved the Allahabad High Court challenging the Varanasi Court’s order directing the Archaeological Survey of India (ASI) to conduct a scientific investigation of the Gyanvapi premises, excluding the stayed areas.
On July 24, the Supreme Court’s three-judge bench, comprising Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, passed the order to allow some breathing time to the Anjuman Intezamia Masjid Committee to move the Allahabad High Court to challenge the Varanasi Court’s order.
In proceedings before the apex court, the Muslim side’s counsel, Huzefa Ahmadi, argued that the excavation of the structure would cause irreversible damage to the structure. The counsel further alleged that the trial court’s order contravened the Supreme Court’s earlier order deferring the scientific investigation to be carried out on Gyanvapi premises.
However, the Hindu side’s counsel, Senior Advocate Shyam Divan, informed the court that the Supreme Court’s earlier order was in the context of the ‘Shiva Linga’ found in the Gyanvapi premises. The counsel further submitted that the trial court’s order has specifically excluded the ‘Shiva Linga’ from the scope of ASI’s scientific investigation.
The ASI’s counsel Solicitor General of India Tushar Mehta concurred with advocate Shyam Divan’s submissions and said that the top court’s previous order concerned the carbon dating of the ‘Shiva Linga,’ which the Muslim side claims is a fountain. The Solicitor General submitted that the court’s earlier order was in view of the possible damage to the structure, however, the trial court’s order does not relate to any ‘invasive procedure.’
On July 21, a Varanasi Court directed the Director of the ASI to undertake a scientific investigation/excavation of the Gyanvapi premises, excluding the areas sealed by the Supreme Court to ascertain whether the present structure was constructed over a pre-existing Hindu temple. The court further directed the ASI to investigate the age and nature of the construction of the western wall of the structure. The court directed the ASI to submit the report by August 4 and scheduled the case for the next hearing on the same date.
The court noted that the application seeks to prove that the facts mentioned in the plaint are corroborated through scientific evidence collected by a fact-finding expert agency. The court noted that the ASI is a premier institution, equipped with infrastructure and instruments to conduct a GPR survey and find out the age and nature of the construction.
“In my view, if ASI will be directed to hold survey and scientific investigation at the property in question and submit report then it will help in just and proper disposal of the case and true facts will come before this Court. I am also of the view that objections, filed by defendant no.4 are unfounded and without any substance,” the court said.
“In my view, the law laid down in the above mentioned ruling is not applicable here because scientific investigation by ASI seems to be necessary in this case so that true facts relating to this case can come before the Court and this Court can arrive at just and reasonable conclusion,” the court further added, referring to Allahabad High Court’s ruling in Sri Kant v Mool Chand and others (2019) as put forth by the respondent.
The court allowed the plaintiff’s application and directed the Director of ASI to undertake a scientific investigation/excavation of the Gyanvapi premises, excluding the areas sealed by the Supreme Court to ascertain whether the present structure was constructed over a pre-existing Hindu temple. The court directed that the entire survey proceedings must be photographed and videographed. The court further directed the ASI to investigate the age and nature of the construction of the western wall of the structure. The court also directed that the Director of ASI must ensure that the disputed structure must not be damaged and remains unharmed.
