The Allahabad High Court is set to hear on August 8 a Public Interest Litigation (PIL) seeking a direction to the Government of Uttar Pradesh to seal the entire Gyanvapi premises so that “no damage can be done by non-Hindus/Non-Sanatani to Hindu sign/symbol present inside the premises.” The Allahabad High Court’s Division Bench, comprising Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava, is set to hear the case.
The petitioners have sought that the entire premises are sealed without conflicting with the Varanasi Court’s July 21 order directing the Archaeological Survey of India (ASI) to conduct a scientific investigation/survey of the premises. The petitioners have sought protection for the Hindu signs and symbols found inside the premises, referring to the Advocate Commissioner’s report. The PIL also seeks to restrict the entry of non-Hindus within the Gyanvapi premises till the suits pending before the Varanasi Court are disposed of.
The petitioners have moved the PIL before the court intending to “save the centuries-old remains of Sri Adi Vishweshwar temple (present-day Gyanvapi) in Varanasi.” The petitioners further seek “protection of Shivlingam of Sri Adi Vishweshwar Virazmaan and other visible and invisible deities in the precinct of the temple.”
The petitioner averred that at the disputed site, a magnificent temple used to exist, where Bhagwan Shiva himself established “Jyotirlinga” lakhs of years ago. The petitioner further informed the court that the said pre-existing Hindu temple was destroyed/damaged by the “cruel Islamic” ruler Aurangzeb in 1669. The PIL further states that after Aurangzeb destroyed the pre-existing Hindu temple, Muslims encroached into the premises and built the alleged Gyanvapi Mosque, even though the property vested in the deity and thus could not be a Waqf property.
The PIL further submits that the rights of devotees, under Article 25 of the Constitution of India, are being infringed as the Hindus are not being allowed to have “darshan” within the “old temple complex.”
“The original Jyotirlinga lies beneath the superstructure illegally and unauthorizedly raised by Muslims within the old temple complex (presently Gyanvapi Mosque). The Hindu devotees are not being allowed to have darshan of the deity within old temple complex. The right of the petitioner(s) and devotees in general to worship within the old temple complex guaranteed by Article 25 of the Constitution Of India is being continuously infringed. The pooja and worship being performed by the Petitioner(s) and devotees remain incomplete without having darshan of Sri Adi Vishweshwara Jyotirlinga,” the PIL submits.
Furthermore, the PIL avers that the disputed structure has been vested in the deity since time immemorial and that if a person forcibly offers namaz within the premises, the same does not become a mosque. The petitioners further submit that the Hindu devotees have the right to worship Maa Shringar Gauri, Bhagwan Ganesh, Bhagwan Hanuman and other visible and invisible deities within the old temple complex.
The PIL refers to the Hindu signs and symbols found inside the Gyanvapi premises and contends that the same are part of the pre-existing Hindu temple. The PIL claims the disputed structure is standing on the base of the old temple structure. To support their contentions, the petitioners refer to the report of the Advocate Commissioner and submit that various signs of Hindu faith were found inside the disputed structure, including Swastika, Lotus, Trident and other signs which are “sufficient to prove the existence of Hindu Temple.”
Notably, the petitioners in this PIL have also moved an application before the Varanasi Court seeking the ‘preservation’ of the Gyanvapi premises. The application has been filed in the Hindu side’s 2022 suit before the Varanasi Court, seeking worshipping rights in the Gyanvapi premises. Plaintiff No 1 Rakhi Singh, Vishwa Vedic Sanatan Sangh (VVSS) chief Jitendra Singh Vishen and others have moved the PIL before the Allahabad High Court seeking to seal the entire Gyanvapi premises.
On August 2, Plaintiff No 1 in the Hindu worshippers’ suit, Rakhi Singh, moved the application before the court and claims that the Muslim side is destroying the historical evidence related to Hinduism available in the disputed structure. Thus, the plaintiff has sought that orders be passed to preserve the entire Gyanvapi premises. In an application filed before the Varanasi Court, District Judge AK Vishwesha has granted the Anjuman Intezamia Masjid Committee time till August 9 to file objections against the Hindu side’s plea seeking ‘preservation’ of the Gyanvapi premises.
Supreme Court Allows ASI Survey of Gyanvapi Premises
On August 4, the Supreme Court of India upheld the Varanasi Court’s order directing the ASI to conduct a scientific investigation/survey of the 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 a 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.
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 opinion from government agencies with expertise in the field. Thereafter, the court 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 the 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 would 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 the 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 had 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, 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 its stand clear that no damage would be caused to the disputed structure, the court has no reason to doubt its 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.
