LUCKNOW: The Gyanvapi Masjid that stands adjacent the Kashi Vishwanath Corridor in Varanasi is caught in a multi-pronged legal battle as Hindus claim the original Lingam of the erstwhile Vishweshwar temple was hidden by the priests inside the Gyanvapi well during Mughal Emperor Aurangzeb’s raid in the late 1660s. Hindu petitioners want to reclaim it for worship at the sacred place where the mosque now stands. But Muslims have been offering regular namaz on the mosque premises and claim it to be a 1,000-year-old shrine.
The Gyanvapi Masjid was built on the banks of the Ganga by Aurangzeb in 1669. Several historians have claimed that it was constructed after demolishing the Adi Vishweshwara (Lord Shiva) temple and its debris were used for the construction of the mosque. It is said that the mosque was named after a nearby well and literally means the 'well of knowledge' (Gyanvapi).
As for the Kashi Vishwanath Temple, it was constructed adjacent the Gyanvapi Masjid by Ahilyabai Holkar, queen of the Maratha Malwa kingdom. The temple was built almost 100 years after the mosque came up. Ahilyabai is known for constructing several other temples and ghats in Varanasi as well. An earlier attempt to build the Kashi Vishwanath temple by her father-in-law, Malhar Rao Holkar, couldn't materialise. This temple has now become one of the most revered seats of Lord Shiva. It's part of the grand Kashi Vishwanath Corridor inaugurated by Prime Minister Narendra Modi in December 2021.
Genesis of the legal battle
Fourteen months before the Babri Masjid was razed by Kar Sevaks in Ayodhya and just a month after Parliament passed The Places of Worship (Special Provisions) Act, 1991, a petition was filed in a Varanasi civil court on behalf of the ancient idol — Swayambhu Jyotirlinga Bhagwan Vishweshwar (Lord Shiva) — and five others on October 15, 1991. The petition demanded the restoration of the Gyanvapi land to the adjacent Kashi Vishwanath temple. It also sought the removal of Muslims from the complex area and demolition of the mosque.
This litigation came at the peak of the Ram temple movement launched by the Sangh Parivar. At that point in time, the VHP, Bajrang Dal and other RSS affiliates had given a call to 'liberate' all Hindu temples that had been demolished to build mosques during the Mughal era. The Gyanvapi and the Krishna Janmabhoomi abutting the Shahi Idgah, were on their top three list.
Contention of petitioners in the 1991 title suit
The ancient temple of Lord Vishweshwara, the petitioners claimed, was partially demolished to build the Gyanvapi mosque. The Swayambhu Jyotirlinga, they contended, was beneath the disputed structure, i.e. the Gyanvapi mosque and the land belongs to the ancient temple. Since it's the abode of the deity, it cannot be a place of worship for any other religion, they argued. Besides, since Aurangzeb was not the owner of the land, he could not have created any waqf (permanent dedication of asset) in favour of the mosque as per Islamic tenets, the petitioners said.
The hearing started in the civil court from June, 1997. On July 17, 1997, the court dismissed the suit, saying it was not maintainable under the Places of Worship Act, which prohibits conversion of any place of worship and provides for the maintenance of the religious character of any place of worship as it existed on August 15, 1947. Both sides filed several revision petitions. On September 28, 1998, the district judge merged all the pleas and ordered the civil court to adjudicate the dispute afresh after considering all evidence. The Anjuman Intezamia Masajid (AIM), the committee that manages 22 mosques, including the Gyanvapi in Varanasi, challenged the maintainability of the suit in the Allahabad High Court.
AIM’s contention
The AIM argued that the charge that Aurangzeb built the mosque after demolishing a temple was incorrect. It asserted that the Gyanvapi Masjid was built on waqf land, so any dispute related to it could not be adjudicated by a civil court. It also cited the Places of Worship Act to question the maintainability of the suit. The high court on October 13, 1998, stayed the Varanasi district court order and further proceedings in the case.
Dispute in abeyance
The stay continued for 22 years, during which it remained in abeyance, with the high court continuing to extend the stay. After the November 2019 judgment of the Supreme Court allowing the construction of the Ram temple in Ayodhya, prominent voices in the Sangh Parivar, including RSS chief Mohan Bhagwat, said Kashi and Mathura were no longer part of their agenda. In its Ayodhya order, the Supreme Court had made it clear that only the Ayodhya temple was exempt from the Places of Worship Act, 1991. Yet, the Kashi and Mathura disputes got reignited, this time not through the Sangh Parivar but by 'devotees' and their battery of lawyers.
Back to court battle
A month after the Supreme Court verdict on November 9, 2019, a fresh petition was filed in the Varanasi civil court by advocate Vijay Shankar Rastogi, who identified himself the “next friend" of Swayambhu Jyotirlinga Bhagwan Vishweshwar. He sought a survey by the Archaeological Survey of India (ASI), as was done at the Ram Janmabhoomi-Babri Masjid site to find out whether the mosque was built over an ancient Hindu temple. This was the first time that a scientific survey of the Gyanvapi premises was demanded.
A few months later, in February 2020, the plaintiffs of the original 1991 suit again approached the Varanasi civil court to reopen the case, which had been stayed by the high court in October, 1998. They cited a Supreme Court order of 2018, which said that a stay order has to be rectified every six months. Since this was not done in this case, the civil court agreed to reopen the case. The AIM challenged the decision in the high court, which first stayed it and then reserved its verdict on March 15, 2020.
Challenge to Places of Worship Act, 1991
In March 2021, the Places of Worship Act itself came under challenge at the Supreme Court. One of the petitioners, BJP leader and advocate Ashwini Upadhyay, contended that the 1991 Act legalised acts of invaders who demolished temples and other religious structures of Hindus, Jains, Buddhists and Sikhs, and took away their rights to restore their places of worship.
BJP leader Subramanian Swamy moved a separate plea terming the 1991 Act unconstitutional. "It's unconstitutional because it bars any person to approach the Supreme Court under Article 32 on enforcement of his/her fundamental right(s),” he argued. On March 12, 2021, a two-judge bench comprising the then Chief Justice of India S A Bobde, and Justice A S Bopanna, agreed to adjudicate on the matter and issued notices to the Union home and law ministers.
Amid this backdrop, Varanasi civil judge (senior division) Ashutosh Tiwari delivered his judgment on April 8, 2021 directing the Archaeological Survey of India (ASI) to conduct a scientific survey of the Gyanvapi complex. He ordered a five-member committee, comprising two Hindus, two Muslims and an archaeological expert, to oversee the survey. A court-appointed observer was to chair the panel.
"This court finds that a survey by the ASI alone can bring the truth of the matter before this court. Irrespective of what surfaces, the survey by ASI may go on to help not only to the plaintiffs, but also to the defendants, if their version is indeed true," he said.
The AIM again moved the high court against this verdict. Justice Prakash Padia stayed the order on September 9, 2021 and later clubbed the case with the original title suit of 1991, the judgment in which had been reserved in March 2020, by reopening it for further clarification from both the sides. On July 25, 2023, Justice Padia concluded his hearing in these two cases and fixed August 28, 2023, for delivery of the final verdict in the original title suit.
Current flurry of cases
In August 2021, five women plaintiffs approached civil judge (senior division) Ravi Kumar Diwakar with their plea to allow them to worship the idols of Goddess Shringar Gauri, Lord Ganesha, Lord Hanuman and other visible and invisible deities on the outer wall of the Gyanvapi mosque. Judge Diwakar ordered a court-mandated survey, including videography, of the Gyanvapi premises on April 8, 2022, to verify the petitioners’ claim.
The AIM challenged this order in the high court, which dismissed it on April 21, 2022. The court-mandated survey started on May 6, 2022, amid protests by the Muslim side. The AIM objected to the appointment of Ajay Kumar Mishra as the court commissioner under whom the survey was taking place. The civil judge rejected the plea and the survey resumed on May 13, 2022. On the same day, the AIM approached the SC, pleading for an immediate stay on the survey. The SC didn't stop it but agreed to take up the case the following week.
On May 16, 2022, the survey team claimed to have found a purported 'Shivling' in the middle of the wuzu khana (ablution pond) of the Gyanvapi complex. The civil judge immediately ordered the sealing of the wuzu area while allowing namaz on the campus.
On May 17, 2022, an SC bench, comprising Justice D Y Chandrachud (now CJI) and Justice P S Narasimha, started hearing the case and on May 20, 2023, ordered status quo at Gyanvapi and full protection of the pond area. It transferred the case to the Varanasi district judge from the court of the Civil Judge (Senior Division). The SC asked the district judge to first decide the AIM suit challenging the maintainability of the petition filed by the five women plaintiffs, within six months.On September 12, 2022, Varanasi district judge Dr Ajay Krishna Vishvesha found the plea of the five women plaintiffs maintainable.
Floodgate opens
After the discovery of the purported ‘Shivling’ in the ablution pond of the Gyanvapi Mosque, Varanasi courts were flooded with pleas, most of them of similar nature, filed by the Hindu side. Their demands included the right to worship the 'Shivling', ban on the entry of Muslims and scientific investigation of the 'Shivling' to ascertain its age and nature. Judge Vishvesha rejected the plea for a scientific probe on the grounds that it would violate the SC's order to keep the pond area sealed. The four women plaintiffs — one of the five dissociated herself — challenged the order in the high court, which allowed the scientific survey in its order on May 12. The SC, however, stayed this order a week later.
Meanwhile, the same four plaintiffs filed an application on May 16, 2023, before the district judge seeking ASI survey of the Gyanvapi complex, excluding the sealed wuzu pond area. Judge Vishvesha allowed this plea, on the grounds that it wouldn't violate the SC order. The AIM filed a contempt plea in the SC against this order, arguing how could the district court allow it when the top court had stayed an ASI survey at the mosque in May. The SC halted the survey for two days and asked the AIM to move the high court for relief. Allahabad High Court Chief Justice Pritinker Diwaker on July 27 reserved his verdict on the ASI survey till August 3 after hearing both sides.
Status of Krishna Janmabhoomi controversy in Mathura
The Allahabad High Court on May 26, 2023, transferred to itself all the suits related to Shri Krishna Janmabhoomi-Shahi Idgah mosque dispute pending in the Mathura lower court. High Court judge Justice Arvind Kumar Mishra allowed the transfer application moved by the Hindu side, including Bhagwan Shri Krishna Virajman at Katra Keshav Dev Khewat, Mathura, through lawyer Ranjana Agnihotri and seven others.
In fact, the petitioners had initially moved the court of the Civil Judge (Senior Division) of Mathura on September 25, 2020, seeking removal of the Shahi Idgah mosque abutting the temple complex and ownership of 13.37 acres, a part of which houses the mosque.
It is believed that the Shahi Idgah mosque, which stands adjacent the Krishna Janmasthal (birthplace of Lord Krishna then known as Katra Keshav Dev), was built on the orders of Aurangzeb after demolishing the temple in 1670. The spot where the mosque stands is believed to be the actual place where Lord Krishna was born. The area was regarded as nazul land (non-agricultural state land)owned by the Marathas, and then the British. Before the mosque was built, Raja Veer Singh Bundela of Orchha had built a temple on the same premises in 1618.
In 1815, Raja Patni Mal of Benaras bought the 13.37 acres in an auction from the East India Company. The Raja’s descendants — Rai Kishan Das and Rai Anand Das — sold the land parcel to Jugal Kishore Birla for `13,400, and it was registered in the names of Pandit Madan Mohan Malaviya, Goswami Ganesh Dutt and Bhiken Lalji Aattrey. Subsequently, Birla set up the Shri Krishna Janmabhoomi Trust, which acquired ownership rights over the Katra Keshav Dev temple. In 1951, the 13.37 acres were placed in the Trust, with the condition that the “Trust property will never be sold or pledged”.
In 1956, the Shri Krishna Janmasthan Sewa Sangh was set up to manage the affairs of the Katra Keshav Dev temple. In 1977, the word ‘Sangh’ in the registered society’s name was replaced with ‘Sansthan'.
In 1968, a “compromise agreement” was worked out between the Shri Krishna Janmasthan Sewa Sangh — the temple management authority, a registered society under law — and the Shahi Masjid Idgah, wherein, the temple authority conceded the contentious portion of land to the Idgah on which the mosque stands.
However, the petitioners rejected the compromise agreement claiming it was made fraudulently and was invalid in law. In any case, the deity was not part of the proceedings, and His rights cannot be denied by the agreement, they argued.
Formulation of the Places of Worship Act
The Places of Worship Act was passed by the Narasimha Rao government on September 18, 1991, a year before the demolition of the Babri Masjid so as to tamp down communal tension. The legislation aims to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on August 15, 1947.
Section 3 of the Act bars the conversion, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination or even a different segment of the same denomination.
The Section 4(1) of the Act, which is relevant in the context, declares that the religious character of a place of worship shall continue to be the same as it existed on August 15, 1947.
Section 4(2) says that any suit or legal proceeding with respect to the conversion of the religious character of any place of worship existing on August 15, 1947, pending before any court, shall abate and no fresh suit or legal proceedings shall be instituted.
Section 5 states that nothing contained in the Act shall apply to the Ayodhya structure and to any suit, appeal to other proceedings relating to it.
Section 6 says, whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to pay a fine.
Exemptions
The disputed site at Ayodhya was exempted from the Act. Due to this exemption, the trial in the Ayodhya case proceeded even after the enforcement of this law.
The Act also exempted any place of worship which is an ancient and historical monument or an archaeological site covered by the Ancient Monuments and Archaeological Sites and Remains Act of 1958.
Any suit that has been finally settled or disposed of.
Any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.
Status of cases
At the HC: Final hearing on a bunch of pleas, including the original petition of 1991 and the 2019 plea for an ASI survey, over on July 25, 2023. Justice Prakash Padia fixes August 28, 2023, for judgment. Verdict by a separate bench on the ASI survey reserved till August 3
In Varanasi: As many as 18 pleas are pending before various courts. The district judge has clubbed eight of them and is hearing them together. 'Suit no. 18/2022 Rakhi Singh and others vs UP state and others' filed by five women plaintiffs is the leading case. Seven other cases are:
Civil Suit No. 712/2022 (new no. 01/2023) filed by Bhagwan Aadi Vishweshwar Viraajman through next friend Kiran Singh and others
Civil Suit No. 839/2021 (new no. 02/2023) filed by Lord Shri Aadi Visheshwar Jyotirlinga through next friend Mahant Shiv Prasad Pandey, Sube Singh Yadav, Santosh Kumar Singh
Civil Suit No. 840/2021 (new no. 03/2023) filed by Shri Nandiji Maharaj seated within the precincts of Shri Aadi Visheshwar Mahadev temple through next friend Sitendra Choudhary, Jaihind Choudhary, Akhilesh Kumar Dubey, Vinod Yadav and Ravi Shankar Dwivedi
Civil Suit No. 350/2021 (new no. 04/2023) filed by Goddess Maa Shringar Gauri through next friend and devotee Ranjana Agnihotri of Lucknow and Asthan Lord Adi Visheshwar through next Jitender Singh Vishen
Civil Suit No. 245/2022 (new no. 05/2023) filed by Satyam Tripathi, Ashish Kumar Shukla of Lucknow and Pawan Kumar Pathak of Varanasi
Civil Suit No. 358/2021 (new no. 06/2023) filed by Maa Ganga through next friend Suresh Chavhanke, Ahmednagar, Maharashtra, Umakant Gupta, Anand Sahu, Maneesh Nigam and Rupesh Mishra