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Gyanvapi, Mathura: Apex Court order not to entertain Mughal rulers' 'actions' ignored

By Vishnu Bandarupalli, Ayush Bajpai, Sandeep Pandey* 

In the tapestry of India's history, certain events stand as stark reminders of the intersection between religion, politics, and the law. The controversy surrounding the Gyanvapi Mosque, is one such intricate thread woven into the nation's fabric. To understand the origins of this dispute and its resonance in modern times, we must first retrace our steps to the Babri Mosque in Ayodhya and the tumultuous legal judgment that followed.
The aftermath of the Ayodhya judgment not only redefined the boundaries between history, religion, and legality but also paved the way for a series of challenges against other mosques, including the Gyanvapi Mosque. This article delves into these complex layers, dissecting the impact of court decisions on religious structures and the broader implications for a nation striving to achieve social harmony and sustainable growth.

The Ayodhya judgement: Legitimising illegal actions

The Supreme Court’s Ayodhya judgement was not a mere property dispute as embedded it was an act of religious and political violence: the destruction of the Babri Masjid. By holding in favour of the Hindus, the court ignored the basic principles of restitution that parties must be restored to their original positions, where possible. 
The court could have ordered a status quo that prevailed before the demolition and then adjudicated the dispute, but it failed to do so. This (in)action by the court fueled the ‘temple reclamation’ movement and its consequences can still be felt today. The first stage of temple reclamation has become filing cases before the courts. Therefore, this article will look at the role of the courts in controversies of conversion of religious places.
It was expected that the judgment in the Babri Masjid would settle the law, and no new claims and disputes would arise in the future. However, the Vishwa Hindu Parishad has never backed down on its demand for the construction of Hindu temples in Varanasi, Mathura and several others.
Arundhati Roy writes in her book “Azadi- Freedom, Fascism Fiction” that ‘‘the VHP has refused to back down on its past statements that it will turn its attention to other mosques. Theirs can be an endless campaign- after all, everybody came from somewhere, and everything is built over something.’’

The Gyanvapi row

The Supreme Court is already hearing upon the Constitutionality of The Places of Worship [Special Provisions] Act, 1991, which was a law passed during the heat of the Babri Masjid dispute in 1991 that bans the conversion of any place of worship and preserving its character which was during the time of independence of India.
However, the Act, though being challenged before the Supreme Court, still exists and is in force. Yet, a petition was filed by five Hindu women in April 2022 before a Varanasi court claiming their right to worship since they believed there exists a Shivling under the Gyanvapi Mosque, which was constructed by Aurangzeb post destroying the temple. An archaeological survey of the Mosque in May 2022 was ordered, which led to the finding of an object resembling Shivling inside the mosque in the Wazukhana.
Consequently, an order was passed that Namaz would not be allowed in the Mosque; however, the Supreme Court ordered to restore Namaz and preserve the Wazukhana, and the court directed the District Judge, Varanasi to hear the matter.
The petition of those five women was challenged by the Masjid Intazamia on the grounds of its maintainability itself that The Places of Worship Act, 1991 is in force, and such a petition cannot be entertained that seeks to convert any religious place of worship as barred by Section 3 of the Act. 
The District Judge [DJ] rejected this argument as he ruled that the law prevents the conversion of the place of worship, whereas, in this petition, the question is about the determination and ascertainment of the character of the place of worship, which is not barred by the Act.
Furthermore, the State of Uttar Pradesh had enacted a legislation, namely, the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which defines a temple under Sec. 4[9], and that means the Temple of Adi Vishweshwar, popularly known as Sri Kashi Vishwanath Temple, situated in the City of Varanasi. Hence the Gyanvapi Mosque was held to be a temple as per this law.
While a frenzied mob can demolish the mosque, it would not have been possible to construct the temple without the help of court and state
The Supreme Court will also determine the Constitutionality of the Places of Worship Act, but for the time being, it is still valid; the law and its essence should be followed. The interpretation that the DJ has provided to the Section 3 is enough to open a floodgate of litigation before the courts of law for determining the nature of the place of worship.

Similar trajectory in the Mathura Case

The Shahi Idgah mosque in Mathura is the subject of more than a dozen cases. The first of these cases was filed in the aftermath of the Ayodhya judgement. Based on the Court’s order in the Gyanvapi case, the petitioners requested a similar video survey of the mosque and the local court in Mathura agreed to hear the plea.
As seen from the above cases, the courts seem to be developing a jurisprudence on religious conversions that is not grounded in the laws.

Why are the courts acting in the manner in which they are acting?

A possible reson why courts seem to be sympathetic to the Hindu cause may be that they want to respect the matter of faith of the majority. They may also hold the opinion that even if they rule according to the law, like in the case of judgement in favour of temple entry of women of menstruating age in Sabrimala, ultimately the women had to bow down to the social pressure of tradition and only two women could enter in the middle of the night with government help.
But while a frenzied mob can demolish the mosque on the spur of the moment, it would not have been possible to construct the temple without the help of court and state.

Babri Masjid demolition imported terrorism to India

Babri Masjid demolition was soon followed by what was then called serial bomb blasts in Mumbai in early 1993 and which after the 2001 attack on twin towers in New York began to be called terrorists attacks. India witnessed many terrorist attacks after the Babri Masjid demolition including the most outrageous one in 2008 on Mumbai.
Radicalisation of Islam and Muslim youth was an outcome of Babri Masjid demolition and more such injustices are likely to create more reaction in the Muslim community. This is something that the judiciary must keep in mind when deciding the fate of Islamic historical religious structures.

Conclusion

The Supreme Court in the Babri Masjid Case stated that the non-retrogression principle should be followed as the courts of law will not undo the historical injustices by the previous rulers of the country or its parts thereof. It had stated:
‘‘This court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate.’’
It is unfortunate that this part of the judgement is ignored by the lower courts which are encouraging litigations such as Gyanvapi and Mathura through favourable orders to the petitioners and thereby encouraging them to file more such cases that browbeat religious interests of the minority communities.
The courts are supposed to be the custodian of the Constitution. If they start giving in to the majority sentiment, the distinction between the judiciary and legislature will be lost. The legislature can still overrule the court like in the case of Shah Bano but the judiciary has to stand its ground.
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*Vishnu Bandarupalli and Ayush Bajpai are students of law at NALSAR, Hyderabad; Sandeep Pandey, a Magsaysay award winning social activist-academic, is general secretary, Socialist Party (India)

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