Supreme Court Allows ASI Survey Of Gyanvapi Mosque Without Excavation Or Damage To Structure; Asks ASI To Follow "Non-Invasive" Process

The Supreme Court on Friday refused to stop the Archaeological Survey of India (ASI) to carry out a survey of the Gyanvapi Mosque at Varanasi, except the 'wuzukhana' area where a 'shivling' was claimed to have been found last year. Taking on record an undertaking made on behalf of the ASI that no excavation will be done at the site and no damage will be caused to the structure, the Court allowed the survey to take place.

Accordingly, the Court disposed of a petition filed by Anjuman Intezamia Masjid Committee (which manages the Gyanvapi Mosque at Varanasi) challenging yesterday's Allahabad High Court order which permitted the ASI survey.

"It is clarified on behalf of the ASI by Solicitor General of India Mr. Tushar Mehta that as a matter of fact, the entire survey will be completed without any excavation at the site and without causing any destruction to the structure", recorded the order passed by the bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra. 

"The order of the learned trial judge passed under Order 26 Rule 10A of the CPC cannot be prima facie at this stage to be said as without jurisdiction", the bench noted in the order. The bench noted that the evidentiary value of the scientific commission is open to be tested in the suit and is open to objections, including cross-examination. Hence, a report of the commissioner, by itself, does not amount to a determination of the matters in dispute.

"Having regard to the nature and ambit of a Court-appointed commissioners, we are unable to differ with the view of the High Court, particularly in the jurisdiction under Article 136", the bench observed.

In addition to the undertaking by the ASI, the Court directed that the ASI survey should be carried out through "non-invasive" processes. 

The report which will be prepared by the ASI shall be remitted to the trial court and shall thereafter abide by the directions which will be passed by the District Judge.

The bench was considering two Special Leave Petitions(SLP) filed by the Masjid Committee -one filed against an order of the High Court dismissing their petition filed under Order 11 Rule 11 CPC to reject the plaint as barred by the Places of Worship; two, petition filed against the order allowing ASI survey of the structure. On the first SLP in respect to the Order 7 Rule 11 issue, the bench issued notice to the Hindu plaintiffs and posted the matter for hearing on a later date. The second SLP was disposed of in terms of the directions mentioned above, recording the undertaking of the ASI.

Arguments

When the matter was taken, CJI Chandrachud told the petitioners' counsel Senior Advocate Huzefa Ahmadi that the High Court has taken on record the ASI's affidavit which state that they are not carrying out any excavation.

Ahmadi however argued that the very process is barred by the Places of Worship (Special Provisions) Act 1991. "By ordering the survey, and by going back in the history as to what happened 500 years ago, are you not violating the Places of Worship Act?", Ahmadi asked.

CJI said that this issue will be considered while hearing the main matter regarding the maintainability of the suit. Ahmadi urged that the survey "totally impinges upon fraternity, secularism, and statements of objects of the Places of Worship Act".

"But Mr.Ahmadi, this is an interlocutory order appointing a commissioner. Why should the Supreme Court interfere? We will keep open all issues regarding maintainability, objections to commission evidence. These are matters to be argued in the suit ultimately. You must treat it like any other suit", CJI said.

"But this has the propensity to...", Ahmadi said.

"Even in the Ayodhya case, a great deal of argument was made on the evidentiary value of ASI survey. These are issues to be addressed at the final hearing as to what is the evidentiary value of the survey. We will safeguard the structure", CJI said.

"If tomorrow someone files a frivolous suit and on the first date ask for a survey as to whether there is something underneath, will your lordships ask the Archeological Survey to have a survey as a matter of course?", Ahmadi asked.

"Mr. Ahmadi, what is frivolous to you is faith to other side. How can we comment?", CJI said.

"If I make out a case that the suit is not maintainable, where is the question of survey? I am saying don't have the survey when there are serious doubts on the maintainability", Ahmadi argued.

CJI however said that the power of a civil court to pass ad-interim orders is not barred merely because maintainability is questioned. He pointed out that two courts have held in favour of the suit's maintainability. "We will safeguard your concerns by protecting the structure", CJI assured.

Solicitor General of India Tushar Mehta undertook that no excavation will be carried out and the ASI will follow the stand taken before the High Court.

"These are sly methods...the process is such that you are reopening the wounds of past. When you start a survey, you are unravelling the wounds of the past. And it is the very same thing the Places of Worship seeks to prohibit", Ahmadi urged again.

Justice Pardiwala then said : "Consider it from a different angle. Your principal argument is why undertake the survey when the suit's maintainability is questioned. This survey is going to be in the form of a report. Tomorrow, if you succeed in getting the plaint rejected, this survey will be nothing but a piece of paper. Let the survey take place because of the assurance given by Mr.Mehta that there is no invasive method. Let the report be given in a sealed cover".

However, later when Ahmadi requested for the report to be given in a sealed cover, Justice Pardiwala said–

"In our mind, what has fallen from my lord the Chief Justice, it should protect the interests of both the sides."

Ultimately, no statement concerning the report to be in a sealed cover was made in the order of the court.

Ahmadi, summing up his arguments, pointed out that a similar order was passed in a suit which was filed in 1991, which was stayed by the High Court. He also said that there was an earlier order passed by the Supreme Court to maintain status quo with respect to the structure in the order reported as (1994) 2 SCC 48.

Further, a separate SLP is filed against an order passed allowing the carbon-dating of the structure claimed to be the "shivling" inside the mosque, which was kept in abeyance by the Supreme Court in May.

Reference made to UP CM's statement

Ahmadi also invited the bench's attention to a statement made by the UP Chief Minister Yogi Adityanath few days ago while the matter was pending. He handed over a paper containing the CM's statement and did not read it out in the Court.

"This was highly unfortunate. The Chief Minister made the statement when the matter was hotly contested and pending. The State is supposed to be neutral  and non-partisan", Ahmadi said.

Arguments of the plaintiffs

Senior Advocate Madhavi Divan, appearing for the plaintiffs, said that the ASI survey is a process of taking expert evidence which will be beneficial to all parties. She said that the plaintiffs have sought for reliefs to worship the visible and invisible deities in the structure. "Certain signs and symbols have clearly been seen there. It's logical to reach the conclusion via scientific study", Divan said. 

This is an order under Order 26 of the Code of Civil Procedure which will assist the Court in deciding the suit. The order is neither adversarial or prejudicial as the rights of the parties are not determined and it will be subject to the objections of the parties. 

She argued that the Places of Worship Act does not bar the determination of a religious character of a place as it stood before the cut-off date of August 15, 1947.

"Ultimately it is the ASI. Its job is to preserve monuments.. so surely they cannot damage it. They know better..", Divan said while contending that the right to know the religious character of the structure cannot be barred. She further said that the 1991 suit was a title suit filed on a different cause of action.

'Salami tactics'

In rejoinder, Ahmadi again made reference to the statements of objects and reasons of the Places of Worship Act and also the interpretation given to it by the Supreme Court in the Ayodhya judgment. He voiced the apprehension that there will be further applications in the future, claiming that some discovery was made, and they will be slowly edged out of the Mosque property.

"These are salami tactics. There will be applications and applications in future, saying some discovery was made here, allow pooja there. All this while it remains a mosque property. Piece by Piece, we will be edged out of the property",Ahmadi said. He emphasised that the ASI is moving at a lightening speed and they reached the premises today morning at 7.30 AM, despite knowing that the Supreme Court is considering the matter today.

Yesterday, the Allahabad High Court had dismissed the Masjid Committee's challenge to the Varanasi District Judge's July 21 order for ASI Survey of the Gyanvapi Mosque.