Supreme Court Stays ASI Survey Of Gyanvapi Mosque Till July 26 5 PM; Asks Masjid Committee To Approach HC Against Varanasi Court Order

In relation to the Gyanvapi Mosque dispute at Varanasi, the Supreme Court on Monday directed that order passed by the Varanasi District Court on July 21 for the ASI survey of the mosque should not be enforced till 5 PM on July 26.

The Court passed this order to allow some "breathing time" to the Gyanvapi Masjid committee to approach the Allahabad High Court challenging the District Court's order, considering that it was passed on a Friday evening and clarified that it has not gone into the merits of the matter. The Court asked the Masjid Committee to approach the High Court tomorrow itself and requested the High Court Chief Justice to allow a hearing before the interim order expires on July 26.

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra passed the order after hearing an urgent mentioning made by the Gyanvapi Mosque committee(Committee of Management, Anjuman Intezamia Masjid).   

During the hearing, the bench also took note of a statement made on behalf of the Archaeological Survey of India (ASI) that it is not planning to carry out any excavation of the Gyanvapi site at least for a week, though the Varanasi District Court had allowed such excavation to determine if the 16th century mosque was built over a pre-existing temple. Solicitor General of India Tushar Mehta informed the Court about the ASI's stance when the Gyanvapi Masjid Committee sought a stay of the Varanasi Court's order. 

Court room exchange

Senior Advocate Huzefa Ahmadi, appearing for the Gyanvapi Mosque committee, made an urgent mention before a bench led Chief Justice of India DY Chandrachud, saying that the order was passed on Friday evening and before any opportunity is given for appeal, the survey proceedings have commenced today morning, although the authorities were informed that the matter would be mentioned in the Supreme Court today. Ahmadi said that the excavation of the structure will cause irreversible damage.

CJI Chandrachud asked why can't the High Court be approached against the District Court order.  Ahmadi submitted that this order is in violation of the earlier order of the Supreme Court which directed to defer the scientific investigation of the Gyanvapi mosque. Pointed out that the Masjid Committee's petition challenging the maintainability of the Hindu worshippers' suit is pending in the Supreme Court, the senior counsel contended that the survey proceedings cannot be allowed when the maintainability of the suit is under question.

Senior Advocate Shyam Divan, appearing for the Hindu plaintiffs, submitted that the earlier order of the Supreme Court was passed in the context of the area where the "shivling" was said to have been found and that the latest order has specifically excluded that area.

Solicitor General of India Tushar Mehta told the Court that the previous order was relating to the carbon dating of the structure, which one side claims to be the "Shivling" and the other side claims to be a fountain. The SG said that the concern regarding the last order was the possible damage to the structure but the latest order is not relating to any "invasive procedure".

Ahmadi disputed this claim and said that as per his instructions, ASI has started "digging" and emphasised that the order has specifically used the word "excavation". However, Divan said that the order was only referring to non-invasive process like Ground Penetrating Radar (GPR).

"No, they will excavate. Please see the order...it says that director of ASI is directed to GPR survey, excavation, dating method wherever required...", Ahmadi protested. "When the order expressly says excavation, how can my learned friends say that there is no invasive procedure ... At least give us reasonable time", he urged.

The bench at this juncture asked the SG to get instructions from the ASI and get back by 11.15 AM to inform the Court about the exact nature of work.

Later, after taking instructions, Solicitor General informed the bench at 11.15 AM that "not a brick of the structure" will be removed and preliminary steps are being undertaken now. "Only measurements, photography, radar imaging is on. But not a brick has been touched or will be touched at least for a week... no structural changes", SG said.

The bench at this juncture dictated an order recording the undertaking given by the ASI and allowing the petitioners to approach the High Court to challenge the District Court's order.

After the order was dictated, Ahmadi made another impassioned plea to stay the order.

"What is the tearing hurry and hot haste? This structure has been used as a mosque since 1500s...", he urged.  Following Ahmadi's persuasive arguments, CJI said that the bench will pass a status quo order for two days and ask the petitioners to approach the High Court tomorrow itself. At this juncture, Divan interjected to object to the status quo order, saying that the previously dictated order was "fair and balanced" as it took into account the concerns of all the parties. "Once a status quo order is passed by the Supreme Court, it goes on forever, as the other side will keep seeking extension", Divan said.

SG, saying "May I say something dispassionately", also objected to the Court passing a "status quo" order as the ASI is not contemplating any invasive procedure at the moment. "It's not even in contemplation for at least a week. In a matter where the maintainability of IA is doubtful, kindly see what impact this order by SC will have on hearing in HC. Only radar imaging is being done...", SG said, adding the Mosque committee's plea was like an "ambush plea".

Ahmadi questioned the "dispassionate" stance of the SG and asked what is the "tearing hurry" for a survey now when it has not been done since 1947. Responding to SG's use of the term "ambush prayer", Ahmadi said, "I am being ambushed...Friday 4.30 the order was passed. A copy of order was not even given to me. I got it from media. I'm sought to be short circuited from even an appellate court hearing.  What is the tearing hurry to do it in 3 days?"

After these arguments, the bench decided to stay the implementation of the order till Wednesday evening.

Background

The mentioning was made with respect to the Varanasi District Court's decision to allow an application filed by 4 Hindu women worshippers seeking a scientific survey of the entire Gyanvapi mosque premises (except for Wuzukhana) by the Archaeological Survey of India (ASI) to find out as to whether the Mosque had been constructed over a pre-existing structure of the Hindu temple was moved by the Committee of Management, Anjuman Intezamia Masajid, Varanasi.

Earlier,  the Allahabad High Court, on May 12, had directed the Archaeological Survey of India (ASI) to conduct a scientific survey (using modern techniques) of the 'Shiva Linga' that has purportedly been found inside the Gyanvapi Mosque premises in Varanasi to ascertain its age. The order was passed by the bench of Justice Arvind Kumar Mishra while allowing a revision plea moved by 4 women Hindu worshippers challenging the Varanasi Court's October 14 order wherein the court had rejected their plea. The High Court directed that the process should be carried out under the supervision of the Varanasi District Judge. The concerned authority of the ASI was directed to appear before the trial Judge on May 22 to seek suitable direction for carrying out the scientific investigation of the structure.