Allahabad Court refuses to stay a lower court judgement ordering survey of the Gyanvapi structure in Varanasi by ASI.

Allahabad Court refuses to
stay a lower court judgement ordering survey of the Gyanvapi structure in Varanasi by ASI.

Following the Allahabad High Court’s refusal to stay a lower court judgement ordering a survey of the Gyanvapi structure in Varanasi by the Archaeological Survey of India
the Supreme Court on Saturday expressed its refusal to stop the survey of the Gyanvapi structure in Varanasi by the Archaeological Survey of India.

Earlier, the Anjuman Intezamia Masjid Committee, managing the mosque at the Gyanvapi site, had moved the apex court.

In the midst of the hearing by a bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, Senior Advocate Huzefa Ahmadi who represented the mosque committee attempted to argue that by allowing the survey will mean going back in history by 500 years, but the Supreme Court was not convinced.
The lawyer also argued that merely conducting the survey will violate the Places of Worship Act, which was also rejected by the court.

In the course of the hearing, advocate Ahmadi told the court that there are multiple special leave petitions on the issue, including one against the scientific survey with carbon dating of the area.

When CJI asked by ‘area’ did he mean that the Shivling area, he said that for them it is a fountain. It is notable that the main argument of the Muslim side is that the Shivling found inside the mosque is actually a water fountain.

In view of the objections of the mosque committee, the CJI said that the Allahabad High Court in its order allowing the survey have said that there will be no excavation for the survey, and no damage to any structure. Therefore the Muslim side should not have apprehensions on the survey. But as per the advocate they have serious issues with the entire proceeding.

Amid ordering for the survey, and by going back in the history as to what happened 500 years ago, Ahmadi asked are they not violating the Places of Worship Act?” To this CJI DY According to Chandrachud stated this issue will be considered while hearing the main matter purporting to the maintainability of the suit.

But Ahmadi reiterated that the survey “totally impinges upon fraternity, secularism, and statements of objects of the Places of Worship Act”, and that it is totally contrary to the orders of the supreme court. However, the apex court disagreed, terming it to be only a matter of the survey.
The CJI went on to add that for every matter why do we have to raise it to such great debates… this is an interlocutory order, why should the Supreme Court interfere?”

The CJI added that keep open all issues regarding maintainability, and objections to commission evidence. “These are matters to be argued in the suit ultimately. You must treat it like any other suit,” he said.

Advocate Huzefa Ahmadi tried to intervene by saying “But this has the propensity to…”, but the CJI continued by saying that even in the Ayodhya case, ASI survey was allowed, and lots of arguments were made about the he evidentiary value of ASI survey. The CJ “We separated grain from shaft.. and then discarded some… These are issues to be addressed at the final hearing as to what is the evidentiary value of the survey. Today only the survey is being conducted. We will safeguard the structure”, CJI said.

Advocate Ahmadi then argued with a hypothetical question, “If someone now comes and files a frivolous plea saying that there is a monument below this structure… will you order ASI survey?” However, the CJI countered by saying that “What is frivolous to you is faith to other side”.

The lawyer questioned the ASI survey calling it a sly method. “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,” he said.

The Muslim side’s lawyer questioned why allow the ASI survey when the main suit is yet to be heard and it may be deemed not maintainable at a later stage. “If I make out a case that the suit is not maintainable, where is the question of survey? I am saying don’t have the survey when there are serious doubts on the maintainability”, he argued. It is notable that the main suit was filed by five Hindu women seeking to worship Hindu deities at the Gyanvapi site.

Justice Pardiwala responded to this argument by saying that the results of the survey will form a report. He said, “Your principal argument is why undertake the survey when the suit’s maintainability is questioned. This survey is going to be in the form of a report. Tomorrow, if you succeed in getting the plaint rejected, this survey will be nothing but a piece of paper. Let the survey take place because of the assurance given by Mr.Mehta that there is no invasive method. Let the report be given in a sealed cover”.

However, CJI Chandrachud said that there should be no objection to just an interlocutory order, and everything will be considered during the hearing of the main suit. He said that the trial court order for the ASI survey has to be treat like any other regular order, like that of appointment of a commissioner.

The CJI stated now they have a trial court order, we have a reasoned HC order, why should we interfere,” the CJI said. The court further assured that the structure will be protected, and the survey will be completely non-invasive. Their concerns will be safeguarded by protecting the structure.

Amid the hearing Solicitor General of India Tushar Mehta gave assurance that no excavation will be carried out for the survey and the ASI will follow the stand taken before the High Court.

Senior Advocate Madhavi Divan, appearing for the Hindu plaintiffs, said that the ASI survey is a process of taking expert evidence which will be beneficial to all parties. She said that the plaintiffs have sought for reliefs to worship the visible and invisible deities in the structure. “Certain signs and symbols have clearly been seen there. It’s logical to reach the conclusion via scientific study”..

She added that the order allowing the ASI survey is neither adversarial or prejudicial as the rights of the parties are not determined and it will be subject to the objections of the parties.

She also argued that the Places of Worship Act does not bar the determination of a religious character of a place of worship before the cut-off date of August 15, 1947, adding that the right to know the religious character of the structure cannot be barred.

Meanwhile, it is the ASI whose job is to preserve monuments.. certainly they cannot damage it. Advocate Divan reiterated the non-invasive nature of the survey.

News Edit K.V.Raman