ASI survey raises fears of Gyanvapi mosque going the Babri way

The court-mandated survey might alter the building’s character, violating the 1991 Places of Worship Act.

A team from the Archaeological Survey of India during the court-mandated scientific survey at the Gyanvapi mosque complex, in Varanasi on August 8. | Photo Credit: PTI

I’m in a hole because at some point I found a shovel and started digging. Maybe I should trade my shovels for ladders and start climbing,” the US-based author-counsellor Craig D. Lounsbrough once said.

This probably sounds familiar as one follows some of the recent attempts to look back at the past in anger and change the imprints of history to suit ideological idiosyncrasies.

The Gyanvapi mosque, which stands next to the historical Kashi Vishwanath shrine in Varanasi, has been in the midst of a row for some years. It is more than a row about religion; politics resonates loudly in the background as hard-line Hindutva votaries reiterate their assertions. Adding to the cacophony are court decisions and the aggression of some petitioners who demand a change in the status quo of the mosque structure.

The latest controversy arose after the Allahabad High Court on August 3 dismissed a petition to stay a Varanasi District Court order and allowed a survey of the mosque by the Archaeological Survey of India (ASI).

Outside the Gyanvapi mosque on August 3, the day the Allahabad High Court dismissed a petition filed by the Gyanvapi’s Masjid Committee challenging the Varanasi District Court order directing the ASI to conduct a survey to determine whether the mosque was built on a temple.  | Photo Credit: PTI

The argument of the Muslim side is that since the mosque has existed for more than 600 years, any suit that could change the character of the building goes against the Places of Worship (Special Provisions) Act, 1991. The Hindu side claims that since regular prayers were offered inside the mosque complex until 1993, its suit seeking round-the-year worship of Hindu deities is not against the spirit of the Act, which settles the cut-off date as 1947.

The demands relating to the issue have been incremental: from a group of five petitioners (including four Varanasi residents) seeking in a Varanasi court in 2021 the right to worship Ma Shringar Gauri, Ganesh, Hanuman, and other “visible and invisible” deities at the site throughout the year to a public interest litigation (PIL) petition in 2023 that sought a direction from the Allahabad High Court to the Uttar Pradesh government to restrain the entry of non-Hindus into the Gyanvapi premises as they might destroy the Hindu signs and symbols on the premises.

On September 12, 2022, the Varanasi court rejected the contention of the Anjuman Intezamia Masjid Committee, the mosque’s caretakers, that the Hindu side’s petition seeking the right to worship at the Shringar Gauri shrine in the Gyanvapi mosque premises was against the spirit of the Act. The court said that the petitioners only sought the right to worship at the mosque and not to convert it into a temple. The court also noted that if the claim is that they used to worship deities there even after 1947, then the Act does not bar the suit.

On July 21, 2023, the court issued orders directing the ASI to conduct a detailed scientific investigation of the structure using ground penetrating radar to find out whether it had been constructed over a pre-existing structure of a Hindu temple.

On July 24, the Supreme Court stayed the survey order of the Varanasi District Court until July 26 and asked the Masjid Committee to approach the Allahabad High Court.

On August 3, the Allahabad High Court dismissed the Masjid Committee’s petition to stay the Varanasi court order and said that in its opinion, the “scientific survey/investigation 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”.

This latest order has raised apprehensions about a possible attempt to bypass the Places of Worship Act, which specifically prohibits the “conversion of any place of worship” and provides “for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947”. The Act makes only one exception: the Ram Janmabhoomi temple/Babri Masjid structure in Ayodhya, which was demolished on December 6, 1992.

A court-mandated attempt to determine whether the 17th century mosque was erected over a Hindu temple structure might open a Pandora’s box. Even if such historical evidence were to be found, it would be infructuous, given that the Places of Worship Act is operative.

Police personnel conducting a route march to maintain peace and order in the areas around the mosque on August 11. | Photo Credit: PTI

In May 2022, in response to the petition that sought round-the-year worship of Hindu deities in the Gyanvapi complex, a Varanasi court ordered a survey with videography. This kicked up a row as it was claimed that a siva linga had been found in the tank, or wazukhana, of the mosque where devotees wash before worship. Masjid Committee said it was actually a fountain.

Highlights

• The Gyanvapi mosque has been in the midst of a row since a group petitioned a Varanasi court in 2021 for the right to worship at the Ma Shringar Gauri shrine in the mosque complex throughout the year rather than on one day only.
• From this point, the case has taken several twists and turns. At one point the Hindu side wanted the courts to stop non-Hindus from entering the mosque premises. The latest controversy stems from a court order asking the ASI to conduct a non-invasive survey of the mosque to determine whether it was built on a pre-existing Hindu structure.
• There are fears that could lead to demands to change the character of this 17th century mosque, which would be a violation of the Places of Worship Act.
• The question is, at what point will these attempts to fix the past stop?

Concerns over dilution of 1991 Act

Expressing concern over the developments at Gyanvapi, Manoj Jha, Rajya Sabha MP from the Rashtriya Janata Dal, who is a former professor in the Department of Social Work at Delhi University, told Frontline: “In 1991, the Places of Worship Act was passed by Parliament, which stated very clearly that apart from Ram Janmabhoomi-Babri Masjid the status quo shall be maintained for all other religious sites as they existed in 1947. What happens to this Act? I am asking this question to the judiciary. Are we not diluting the Act, which was a product of legislative competence and constitutional morality? Orders by lower courts and High Courts are somewhere sending the message that the government is party to promoting certain individuals as proxies to actually negate the very idea of the Places of the Worship Act.”

Samajwadi Party MP Swami Prasad Maurya said in July that if Gyanvapi was being surveyed, then a survey of Hindu temples too should be carried out as some of them are said to have been built on the ruins of Buddhist temples. He said the status quo of religious places as of August 15, 1947, must be accepted to avoid needless complications. “Those who are searching for a temple in a mosque will give rise to further disputes. In a similar way, people will tomorrow start looking for Buddhist maths in Hindu temples,” Maurya cautioned.

Taking cognisance of this possibility, the Act says: “It is hereby declared that the religious character of a place of worship existing on the 15th day of August 1947, shall continue to be the same as it existed on that day. If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.”

Speaking in the Lok Sabha on September 10, 1991, the then Home Minister, Shankarrao Chavan, explained the rationale for the law, saying the idea was to move on from the hatred created by the colonial past.

Acknowledging this, a five-judge bench of the Supreme Court while delivering the Ayodhya verdict in 2019 said: “The Places of Worship Act is intrinsically related to obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all the Places of Worship Act is an affirmation of the solemn duty, which was cast upon the state to preserve and protect the equality of all faiths as an essential constitutional value a norm which has the status of being a basic feature of the Constitution.”

Holding that historical wrongs could not be remedied by people taking the law into their hands the court said: “In preserving the character of the Places of Worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.”

Constitutional basis

Parliament determined that independence from colonial rule furnished a constitutional basis for healing the injustices of the past by providing every religious community the confidence that their places of worship would be preserved, and their character would not be altered, the court said. Many commentators and ordinary citizens have criticised the decision of the courts to allow the ASI survey as going against the spirit of the Places of Worship Act. There are probably dozens of structures all across India where places of worship have come up on earlier structures of other faiths. The aim of legislation and judicial intervention should be to stop all demolitions and bring peace and a sense of closure once and for all. “The purpose of the survey cannot be and is not to strengthen the religious status of the premises as it has existed from 1947 till date. Allowing the survey amounts to retrogression. It will help in setting up a particular narrative of indignity of a community...,” said M.R. Shamshad, a Supreme Court advocate.

He said that both the Places of Worship Act and its interpretation by the Supreme Court confirmed that the law protects the fundamental values of the Constitution. “The Supreme Court stated that the 1991 Act’s preamble emphasised tolerance, human dignity, and fraternity. We have excellent jurisprudential principles, but what are they for? If at the right time they cannot be invoked through judicial process, they... only [have] ornamental value,” Shamshad said.

Ironically, the first petition in relation to Gyanvapi was filed in 1991, the same year the Places of Worship Act became law, in a Varanasi court by Swayambhu Jyotirlinga Bhagwan Visheshwar. Then, last year, the Vishwa Hindu Parishad claimed that the Qutb Minar was a Vishnu stambh (pillar). There were already claims that the structure was built after demolishing 27 Hindu and Jain temples. In May 2022, in response to a petition in a Delhi court seeking restoration of Hindu and Jain temples at the Qutb Minar site and allowing worship there, the ASI told the court that the Qutb Minar was not a place of worship.

There have also been attempts to find the remnants of a Siva temple on the site of the Taj Mahal. The ASI put a lid on this in 2018 by categorically stating that the Taj was a tomb and not a “Tejomahalya” temple as claimed by some.

In fact, demands propelled by majoritarian politics began to assume such ridiculous proportions that even RSS chief Mohan Bhagwat had to speak up. Addressing swayamsevaks in Nagpur in June 2022, he said: “The issue of Gyanvapi is in discussion. There are such issues. There is a history. We can’t change that. We have not made that history. Neither have those who are called Hindu today made this [history] nor the Muslims of today.” But he tempered his words by saying that there were some sites to which Hindus had a special attachment and devotion and those should be resolved through courts. “It is right we said something about some places, for which we had special devotion symbolically, but on a daily basis an issue should not be raised.... Why do we have to increase the rift?” he asked. “We have a certain [devotion] with regard to Gyanvapi. [Puja] is being carried out traditionally. We are doing it. This is fine. But why to look for a siva linga in every mosque?”

Despite Bhagwat’s remarks, there is no let-up in the momentum by Hindutva forces. The Krishna Janmabhoomi Mukti Nirman Trust filed a plea in the Supreme Court on August 14 seeking a scientific survey at the Shahi Eidgah mosque in Mathura. More such petitions could be in the offing. The question is, at what point will these attempts to fix the past stop?