Gyanvapi Mosque Case : Should Not Allow The Spark To Spread

"Egregious violation of the rule of law"... "should not have been employed in a secular nation committed to the rule of law" - this is how the Supreme Court described the demolition of Babri Masjid in the Ayodhya verdict. The Court said that "during the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship".

If one traces the genesis of Babri demolition, it can be seen that the spark for this provided by a court order - the order passed by Faizabad District Court in February 1986 allowing the opening of the gates of the mosque on an application filed by a Hindu party. The order provided the impetus for a huge political mobilization on the "mandir wahin baneyenge" campaign against the Babri mosque.

The Allahabad High Court, in its 2010 verdict in the Ayodhya title suits, severely indicted the Faizabad District Judge for passing the order in "utter disregard for procedure" and with "undue haste". The Court noted that the District Judge passed the order in an application moved by a person who was not party to the suit, without due notice to the other side. The order was passed on the very next day of filing the application. Also, the files relating to the suit were in the High Court and the District Judge could not have passed the order, especially on a plea by a third party.  The High Court said that the opening of locks on February 1, 1986 was not only illegal but was prelude to the demolition of mosque on December 6, 1992.

"...it is a sound principle that not only justice must be done but it must also appear to be done. Before passing the judgment dated 1.2.1986 the learned District judge (KM Pandey) first buried the second limb of the principle (appearance of justice) very deep. Probably the learned judge was of the view that he would not be able to pass the order (which obviously, according to him, must have been a just order) in case he bothered about the appearance of justice being done. This obviously shook the faith of the parties affected by the judgment which was the real tragedy", Justice SU Khan of the High Court noted in the 2010 judgment.  Justice Khan added that this "irresponsible order"catapulted the dispute to national attention leading to a chain reaction that culminated in the demolition of the mosque in 1992.

Cut to 1992. The Supreme Court permitted the holding of a "symbolic kar seva" in the Ayodhya, blindly accepting the assurance of the State of Uttar Pradesh that no law and order problems will occur and that the status quo order will be maintained.  The "symbolic kar seva" was allowed to be performed on December 6, 1992, the fateful day on which the 16th century structure was demolished. Journalist Manoj Mitta recounts that the Supreme Court was shocked at the demolition of the monument in violation of the undertaking given by the State and a special sitting was convened on that day at the residence of Justice MN Venkatachaliah, during which he "thundered that the destruction of the Babri Masjid was the gravest ever contempt committed against the apex court". The counsel for the alleged contemners, K.K. Venugopal, reportedly withdrew from the case saying, "My head hangs in shame."

Mitta says that the Court did not seriously pursue the contempt action against the then UP Chief Minister Kalyan Singh for violation of the undertaking in relation to the protection of the mosque, though he was sentenced to one day token imprisonment for another violation(a lesser one) with respect to allowing the construction of a platform at the site five months before the demolition.

Years later, in 2010, former Chief Justice of India AM Ahmadi said that the the Supreme Court could have prevented the demolition of the Babri Masjid had it acted in time. He said that the then Attorney-General, Milon Banerjee, had repeatedly urged the two-judge Bench of Justices M.N. Venkatachaliah and G.N. Ray to consider appointing the Central government as the receiver of the land where kar seva was to be performed . Mr. Banerjee told the court there were intelligence inputs about plans to demolish the mosque. "Instead, the court passed an order allowing a symbolic kar seva. Had that order not been passed, the mosque would have been standing today," Mr. Ahmadi said.

A similar pattern seems to be unfolding in the Gyanvapi case. The manner in which the Varanasi Civil Court ordered the sealing of the property raises eyebrows, as it was done on a claim made by the plaintiff that the Advocate Commissioner spotted a shiv ling in the mosque complex. However, the Commissioner is yet to file the report before the Court and the survey is yet to be completed(the main Commissioner was subsequently removed by the Court). The application was allowed on the same day of filing without giving an opportunity to the defendants to file objections. Coincidentally, the order came the day before the Supreme Court was scheduled to hear the Masjid Committee's appeal. 

Earlier also, the proceedings before the Varanasi Civil court have witnessed  unusual developments. In April 2021, the Civil Court ordered ASI survey of the mosque in a 1991 title suit, despite the fact that the Allahabad High Court had stayed the proceedings while reserving judgment on revision petitions challenging suit proceedings. Later, the Allahabad High Court stayed the order for ASI survey, after criticizing the Civil Court for passing the order despite the fact that the High Court's judgment was pending. The single bench of the High Court observed in the order passed on September 9, 2021 as follows :

"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. 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".

Meanwhile, another suit was filed by few Hindu devotees seeking year-long access to pray at a Hindu shrine behind the western wall of the Gyanvapi Mosque. The Masjid Committee filed an application to reject the plaint citing the bar under the Places of Worship Act. While that application is yet to be decided, the Court has passed orders for survey and inspection of the premises.

Civil Judge Senior Division Ravi Kumar Diwakar, who is hearing the case, has also made certain startling statements in an order about the "atmosphere of fear" which has been created in the case and added that his family is concerned about his safety.

In this connection, a mention needs to made about an order passed by a Civil Court in Delhi in December 2021 rejecting at the threshold a plaint which sought restoration of alleged temples at the Qutub Minar complex. The Court said that every endeavour must be made to enforce the objective of the Places of Worship Act 1991, which is to maintain the secular character of the country. Wrongs of the past cannot be the basis for disturbing peace of our present and future, the judge observed in the laudable order.

In the Ayodhya verdict, the Supreme Court had upheld the validity of the Places of Worship Act. The Court observed that historical wrongs committed by previous rulers cannot be corrected under the present legal regime established by the Constitution of India. Law is not the answer for the actions of ancient rulers, the five-judge bench which delivered the judgment said. The Court added that the Places of Worship Act is a mandate that "history and its wrongs shall not be used as instruments to oppress the present and the future".

It must not be forgotten that the Ram Rath Yatra movement and the Babri demolition had triggered communal riots in several parts of the country, claiming several innocent lives. In the Gyanvapi case, the Varanasi court's orders have already provided a spark to create a surcharged atmosphere.  It is hoped that the spread of the spark is prevented, so that an ignoble chapter in the Indian history is not repeated.  Complete justice is in preventing the possible commission of an illegality using the powers at disposal, and not in a subsequent declaration that what has taken place is illegal.

(Manu Sebastian is the Managing Editor of LiveLaw. He may be contacted at manu@livelaw.in. He tweets @manuvichar)