On August 9, the Anjuman Intezamia Masjid Committee moved a fresh application before the Varanasi Court to stop the ongoing Archaeological Survey of India’s (ASI) scientific investigation of the Gyanvapi premises with “immediate effect.” The Hindu worshippers have been given time till August 17 to file their objections to the Muslim side’s application.
The Muslim side has argued that while the Varanasi Court allowed the ASI to conduct a scientific investigation of the Gyanvapi premises, the plaintiffs have failed to deposit monies to bear the expenses incurred for the survey in accordance with Rule 70 of General Civil Rule, and thus, directions should be issued to stop the survey with “immediate effect.”
The Muslim side further argued that no written or oral information about the scientific investigation had been given by the ASI. The Muslim side further contended that no time has been fixed for the ASI survey and despite this, the agency has been conducting the scientific investigation. The application argues that the same is not proper, and thus, has to be stopped.
“That the ASI survey work being done by the is being done contrary to the procedure prescribed in the law which is illegal. Which is necessary and justified to be stopped with immediate effect,” the Muslim side’s application stated.
On August 4, the Supreme Court of India upheld the Varanasi Court’s order allowing ASI to conduct a scientific investigation of Gyanvapi premises. The Muslim side had moved the Supreme Court to challenge the Allahabad High Court’s August 3 verdict upholding the trial court’s decision. The apex court noted that the ASI, in its affidavit, has assured that non-destructive methods would be used to conduct the scientific investigation.
ASI Survey would damage the disputed structure
The Muslim side had argued that the ASI survey of the Gyanvapi premises could not be carried out without causing damage to the structure while challenging the Varanasi Court’s order before the Allahabad High Court. The counsel argued that if during the scientific investigation, any excavation is made, it would damage the structure.
However, the high court noted that the ASI had filed an affidavit submitting that it would not conduct excavation in the disputed structure. 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.
“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.
Furthermore, on August 4, the Supreme Court upheld the Allahabad High Court’s decision to allow ASI to conduct the scientific investigation. 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.
“False Tactics” to collect evidence for Hindu side
The Muslim side further argued that the Hindu side lacks admissible evidence, and thus, “false tactics” are being applied. The counsel argued that the Hindu worshippers are attempting to create evidence in their favour at this stage, which is not permissible in law. However, the high court found no substance in the Muslim side’s contentions and said that whatever evidence would 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.
Court discharging plaintiffs’ burden of proof
The Muslim side further contended, before the high court, that the onus is on the plaintiffs to prove their case by adducing evidence during trial and the same cannot be permitted by way of getting a commission appointed. However, 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.
Survey can only be conducted if court is unable to decide
The Muslim side contended that a scientific investigation can only be conducted when, after adducing evidence, a court is unable to decide the dispute. However, the court rejected this contention and 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 read.
ASI survey barred under The Places of Worship Act
The Muslim side’s counsel submitted that the suit is barred by the Places of Worship (Special Provisions) Act of 1991, as the disputed structure existed prior to 1947. However, the Allahabad High Court held that the question of the Places of Worship Act is not the subject matter for the time being.
“So far as the submission of the applicant/defendant no.4 that the Suit is barred by the Places of Worship (Special Provisions) Act, 1991, this question is not the subject matter, for the time being, because none of the parties has raised any grievance before the Court below while making their submission in support of their applications,” the court said.
In the Muslim side’s appeal before the Supreme Court to challenge the Allahabad High Court, the counsel argued that conducting an ASI survey would reopen “the wounds of past.” The counsel reiterated that the ASI survey is barred under the Places of Worship Act.
However, the Chief Justice of India DY Chandrachud informed the counsel that these arguments would be taken up 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.
The Muslim side’s counsel cited 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 remarked.
ASI not made party to the suit
The Muslim side argued that as the ASI is not a party to the Hindu worshippers’ suit, therefore, no direction could be issued to the ASI to conduct a scientific investigation of the Gyanvapi premises. However, the court dismissed the Muslim side’s argument and held that just because the ASI has not joined as a party to the suit, it cannot be directed to do any technical investigation.
“I further find no substance in the argument of applicant/defendant no.4 that because the ASI has not been joined as a party to the Suit, it cannot be directed to do any technical investigation. Whenever, the report of the ASI would be utilized by the parties, they can submit their proposition/objection, if any,” the court said.
Issues not framed in the Case
The Muslim side’s counsel argued that the issues are yet to be framed and the list of witnesses had not been disclosed or exchanged; however, the applications were filed to create evidence for Hindu worshippers. The counsel, placing reliance on the Naseeb Deen case, argued that the appointment of a Commissioner is erroneous and not permissible at this stage. The Allahabad High Court found no substance in this argument that seeking a scientific investigation is not tenable in the eyes of the law “just because the issues have not been framed as yet.”
‘Aurangzeb was not cruel’
On May 22, the Muslim side submitted an application before the Varanasi Court opposing the Hindu side’s plea seeking an ASI survey of the premises. The Muslim side claimed that Aurangzeb was not cruel and he did not demolish the Adi Vishweshwar Mandir. The Muslim side claimed that the reference to Mughal rulers as invaders was made with the aim to create hatred between Hindus and Muslims.
The Muslim side denied averments claiming that Muslims were invaders who attacked and destroyed the Adi Vishweshwar Mandir, which Raja Tondal Mal later restored at the same place in 1580 AD. The Muslim side submitted that the disputed structure had been there for thousands of years.
“The structure or building which is present on the spot, Masjid Alamgiri / Gyanvapi Masjid, has been there for thousands of years, it was a mosque yesterday and is still a mosque, and the Muslims of Varanasi and neighbouring districts, as a matter of right, without any restrictions, have been offering Namaz Panjgana and Namaz Zuma and Namaz Idaan,” the application stated.
