The Supreme Court of India has upheld the Varanasi Court’s order directing the Archaeological Survey of India (ASI) to conduct a scientific investigation of Gyanvapi premises. The Supreme Court’s three-judge bench, comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, heard the Muslim side’s challenge to the Allahabad High Court’s August 3 order allowing ASI to conduct scientific investigation of Gyanvapi premises.
“It is clarified on behalf of ASI by Solicitor General 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 Supreme Court noted in its order.
The Chief Justice of India noted that the Allahabad High Court restored the Varanasi Court’s order after an ASI official appeared before the high court and assured that no damage would be done to the structure. The court noted that the ASI, in its affidavit, has assured that non-destructive methods would be used to conduct the scientific investigation.
Furthermore, the Supreme Court noted that the trial court’s order directing the ASI to conduct the scientific investigation was within its ambit. “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,” the Supreme Court said.
“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,” the apex court further said.
In addition to the ASI’s affidavit and the Allahabad High Court’s directions for conducting the scientific investigation/survey, the Supreme Court has directed the ASI to conduct the same through “non-invasive” processes. The court further directed that the ASI’s report shall be remitted to the trial court.
On August 3, after the Allahabad High Court restored the Varanasi Court’s order to conduct ASI survey of the Gyanvapi premises, the Anjuman Intezamia Masjid Committee moved the Supreme Court. The Muslim side challenged the Allahabad High Court’s verdict before the Supreme Court and has urged the court to hear the matter soon.
Arguments Before the Supreme Court
The Muslim side’s counsel, Senior Advocate Huzefa Ahmadi, argued that the conduct of scientific investigation is barred by the Places of Worship Act. “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?,” the counsel asked.
However, the Chief Justice informed the counsel that these arguments would be considered while deciding the maintainability of the case. “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. These are matters to be argued in the suit ultimately. You must treat it like any other suit,” CJI said.
“These are sly methods…the process is such that you are reopening the wounds of past. When you start a survey, you are unravelling the wounds of the past. And it is the very same thing the Places of Worship seeks to prohibit,” the Muslim side’s counsel argued.
The Muslim side’s counsel cites Section 2(b) of the Places of Worship Act which defines “conversion.” The Chief Justice of India notes that the act uses the term “conversion” in a broad sense. “So the religious character should not be changed. The question is what was the religious character of the place as on 15th August 1947,” the Chief Justice remarks.
Meanwhile, Solicitor General of India Tushar Mehta assured the court that no excavation would take place at the structure and the high court’s directions would be complied with.
The Hindu side’s counsel Senior Advocate Madhavi Divan said that the ASI’s survey is a process for collecting evidence which would be beneficial for all parties. “Certain signs and symbols have clearly been seen there. It’s logical to reach the conclusion via scientific study,” the counsel submitted. She further argued that the Places of Worship Act does not bar the determination of a place’s religious character as it stood before August 15, 1947.
Allahabad High Court’s Verdict
On August 3, the Allahabad High Court restored the Varanasi Court’s July 21 order directing the ASI to conduct a scientific investigation of the Gyanvapi premises, excluding Supreme Court stayed areas, subject to the high court’s observations and the contents of ASI’s affidavit filed before the court.
“In the opinion of the Court, the scientific survey/investigation proposed to be carried out by the Commission, is 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,” Chief Justice of the Allahabad High Court, Pritinker Diwaker, said in his 16-page order.
During the course of hearings, the court sought an expert’s opinion from government agencies with expertise in the field. Thereafter, the court had asked an ASI official to assist the court. The Additional Director General (ADG) of ASI, Alok Tripathi, appeared before the court and informed the court about the methodology of the ASI to conduct the scientific investigation of the structure.
The ASI official, in his affidavit, submitted that the ASI would conduct a detailed scientific investigation in accordance with the law and prepare a list of the antiquities which are found in building and carry out a detailed survey and undertake the exercise to find age and nature of the structure.
The ASI official further submitted to the court that ASI’s scientific investigation would be conducted without causing harm or damage to the existing structure. He submitted that the investigation would be carried out beyond the structure and in open areas. The official submitted that no drilling, no cutting, no removal of brick or stones from the existing structure will be done while conducting the scientific investigation. Furthermore, if further investigation or excavation is required to be done, then the permission of the court will be sought.
The court found no substance in the Muslim side’s submission that that court can order a scientific investigation if it is unable to decide the dispute after the parties adduced evidence. The court said that there is no bar in law to appoint a commission for better adjudication of the dispute. Furthermore, the court said that it could appoint a commission even prior to the trial, if required. The court observed that it could exercise the power to elucidate the fact itself.
“A plain reading of the provision says that the power can be exercised at any stage and procedural law is to advance the cause of justice and not to strangulate the litigant on hyper technical grounds. Thus, the judgement relied upon by learned counsel for applicant/defendant no.4 in the case of Sri Kant (supra) is of no help to him,” the court order reads.
On the issue of court discharging the plaintiff’s burden of proof, the court found no substance in the Muslim side’s arguments and held that if the court deems it necessary or expedient, in the interest of justice, the court can issue a commission to inquire into such question and submit a report to the court.
“It is settled proposition of law that the Court will not sit as a mute spectator and can always interfere in such matters to arrive at a particular conclusion. Thus, judgements relied upon in the cases of Naseeb Deen (supra), Km. Chandana Mukherji (supra), Rama Avatar Soni (supra) and Shanta Devi (supra) are of no help to the applicant/defendant no.4,” the court said.
On the issue of excavations of the disputed structure, the court found no substance in the Muslim side’s arguments that if during the scientific investigation, any excavation is made, the same would damage the disputed structure. The court noted that the ASI has filed an affidavit submitting that it would not conduct excavation in the disputed structure.
“This Court has repeatedly asked the officer present in the Court and learned counsel appearing for the ASI that as to what procedure would be adopted at the time of scientific investigation, and they have reiterated that no demolition of the property will take place by any one, nor any existing structure would be altered,” the court said.
The court found no substance in the Muslim side’s arguments that the scientific investigation is being conducted to create evidence for the plaintiffs. The court said that whatever evidence will be collected through the investigations, it would be available to all parties.
“The scientific investigation has nothing to do with the other evidence and whatever evidence would be collected, that may be for all the parties and not only for the plaintiffs,” the court said.
Furthermore, the court has noted that once the ASI has made their stand clear that no damage would be caused to the disputed structure, the court has no reason to doubt their statements. The court further noted that the ASI official has also filed an affidavit explaining the circumstances.
“The law laid down and discussed above, make it clear that the Court below was justified in passing the impugned order. The present petition lacks substance and is liable to be dismissed,” the court said.
“The petition is, accordingly, dismissed. Interim order, if any, stands vacated. The order dated 21.7.2023 passed by the District Judge, Varanasi is restored and the parties are to comply the said order, subject to the observations made by this Court hereinabove and the contents of the affidavit filed on behalf of the ASI before this Court,” the court concluded.
“As the proceeding of Suit has been lingering on for long, it would be appropriate to observe that the Court concerned shall make all endeavour to conclude the proceedings expeditiously, without granting unnecessary adjournments to either of the parties by giving short dates, keeping in view of the provisions contained in Order XVII Rule 1 of CPC,” the court concluded.
Varanasi Court’s Order Allowing ASI Survey
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.
