NEW DELHI: In a major decision, the Supreme Court Friday declined to interfere with the Allahabad High Court's order allowing a scientific survey by the Archaeological Survey of India at the Gyanvapi complex at Varanasi to ascertain if the mosque was constructed on a pre existing Hindu temple.
A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra rejected a plea by Anjuman Intejamia Masjid Committee Varanasi against the Allahabad High Court's August 3 order. The HC had then upheld the District Judge's July 21 order for carrying out such a survey.
The HC, however, had directed that there would not be any excavation or use of invasive method at the site.
Senior advocate Huzefa Ahmadi, representing the Gyanvapi masjid committee, asked if somebody files a frivolous petition saying that there is a monument below this structure, will the court order an ASI survey?
The bench replied, "Even in the Ayodhya case, we gave the judgement after the ASI survey was done. For you the suit may be 'frivolous', for the other side it may be a matter of faith".
On Ahmadi's vehement objection to the ASI survey, the bench said, "Why should we interfere with the high court order at this stage".
“We are unable to differ with the view of the high court….we reiterate the direction of the high court that there shall be no excavation,” the bench said.
The top court directed that the entire survey be carried out through non-invasive methods and also there should be no excavation or damage to the walls or structure of the mosque.
The high court had recorded a statement of a senior Assistant Director General of the ASI Alok Tripathi that no excavation at the mosque complex will take place.
The top court declined to consider Ahmadi's contention that the survey was against the spirit of the Places of Worship Act, 1991 which mandated maintaining character of religious places as prevailed on August 15, 1947. The counsel said allowing the survey would open floodgates of filing similar plea across the country.
He said it is alarming as they wanted to evict us of the property piece by piece.
The bench, however, said, "It is an interlocutory order passed during the examination of the suit. We will protect the structure ...we will safeguard your interests."
"Why should we interject at this stage? Two courts have held against you....Despite assurance that it (survey) is not going to harm you, you are objecting to it, tomorrow you may succeed and this survey will be reduced to just a piece of paper," the bench told the counsel.
Senior advocate Madhavi Divan, appearing for a group of Hindu women who filed the suit for right to worship, contended that the job of the ASI is to preserve and protect the monument and not cause any damage to it.
"The survey is for benefit of the court in determination of the suit, and not in any manner is prejudicial or adversarial, it can go either way. It is a chance we are taking," she said.
The trial court in its discretion had directed the survey. To interdict the survey is to disable the court, she added.
Solicitor General Tushar Mehta, representing the ASI, that no excavation will take place and no damage to wall etc will happen, and stressed that no damage will be caused to the structure.
The bench also pointed out that in Ayodhya case, the evidentiary value of ASI survey was examined and the court separated grain from shaft, and then discarded some findings.
Ahmadi said when you start digging into the past then you are uncovering the wounds of the past, and that is what Places of Worship Act sought to injunct.
Mehta said that the ASI affidavit says there is no drilling, cutting of stone will be done from the existing structure and also no wall or structure will be damaged. Mehta said ASI says it will be done by the non-destructive method.
Ahmadi said the basis of the survey is that a structure existed underneath it 500 years ago and this survey will unravel wounds of the past.
Ahmadi submitted that a statement was made by the Uttar Pradesh Chief minister Yogi Adityanath, when the matter was sub judice.
Ahmadi said that he needs some time to address the court on Places of Worship Act 1991.
On this, the bench said to hear on the Places of Worship Act, while hearing a challenge to interlocutory order, the conventional wisdom is when there is a procedural order you don't go into an issue which goes at the root of the suit.
In its petition, the mosque committee contended that the HC's order is liable to be set aside on account of "grave risks posed by such an exercise which may have consequences throughout the country".
It also referred to "extreme media coverage and communal undertones of the entire issue" when a commissioner was appointed for a survey last year.
The plea also claimed such an examination was "absolutely" against the provisions of the Places of Worship (Special Provisions) Act, 1991.
On July 21, District judge A K Vishvesh had ordered the survey by declaring that "wazookhana", where a structure claimed by the Hindu litigants to be a "Shivling" was found during the survey in May, 2022, would not be a part of it, as the Supreme Court had earlier ordered protecting the spot in the complex.
The Hindu side claimed Kashi Vishwanath temple at Varanasi, one of the twelve Jyotirlingas, was first destroyed by the army of Qutb-ud-din Aibak, in 1194 CE. In 1669 CE, Aurangzeb again destroyed the temple and built the Gyanvapi Mosque in its place. The remains of the erstwhile Temple can be seen in the foundation, the columns and at the rear part of the mosque.