The Allahabad high court has stayed proceedings in the Kashi Vishwanath Mandir-Gyanvapi Masjid case in a Varanasi court, effectively suspending a controversial archaeological survey of the premises to determine whether a Hindu temple was partially razed to build the 17th-century mosque.
The court also granted three weeks’ time to the Union and state governments to file their replies on the issue. The mosque abuts the famous Kashi Vishwanath temple and has been embroiled in a decades-old legal dispute. Justice Prakash Padia passed the order in two separate petitions filed by the Uttar Pradesh Sunni Central Waqf Board and the Varanasi Anjuman Intezamia Masjid Committee, which runs the Gyanvapi mosque, challenging the Varanasi court’s April 8 order asking the Archaeological Survey of India to conduct a physical survey of the premises.
The two petitions said the suit in front of the Varanasi court was not maintainable because the high court had reserved its judgment on a petition regarding the suit on March 15, 2021. The high court agreed with them.
“In the opinion of the court, the court below should wait for the verdict in the petitions pending before this court and not to proceed further in the matter till the time a judgment is delivered. The judicial courtesy and decorum warranted such discipline, which was expected from the court below but for the unfathomable reasons, neither of the courses were taken,” said justice Padia.
“It is to be regretted that the court below departed from this traditional way in the present case and chose to examine the question himself. I have said so with the fond hope that judicial enthusiasm should not obliterate the profound responsibility that is expected from the court below,” he added.
The religious dispute – similar to the one in Ayodhya – is decades old and first reached the courts in 1991, when local Hindu priests sought permission to worship in the mosque area. The hearing was later suspended by the Allahabad high court.
But the case gained steam in December 2019 when Vijay Shankar Rastogi filed an application in the civil court as the next friend of the presiding deity of the temple, Swayambhu Jyotirling Bhagwan Vishweshwar. Rastogi demanded that the mosque area be surveyed to prove that the Muslims had occupied parts of the temple complex and built a mosque there. In law, a next friend is a representative of someone incapable of maintaining a suit directly.
On April 8, Varanasi civil judge (senior division) Ashutosh Tiwari ordered an archaeological survey of the Gyanvapi complex, saying the exercise was required to decide on pleas that allege the mosque was built by Mughal emperor Aurangzeb after partially demolishing a Hindu shrine.
The civil court ordered the constitution of a five-member committee, comprising two Hindu and two Muslim members and an archaeological expert, to oversee the “comprehensive physical survey”. The ASI will conduct the exercise at its expense without any media briefings, the judge ordered.
The order was almost immediately challenged. The petitioners contended that the suit in the Varanasi court was not maintainable under Section 4 of the Places of Worship (Special Provisions) Act, 1991, which froze lawsuits to reclaim any place of worship after India was declared independent, except Ayodhya. In March, the Supreme Court indicated it may review the 1991 law.
