Secure 'shivling' area but don't stop Namaz, says SC
New Delhi: In a significant development, the Supreme Court on Tuesday directed the District Magistrate of Varanasi to ensure protection of area inside the Gyanvapi-Shringar Gauri complex where 'shivling' is said to be found in the survey and allowed Muslims to offer 'Namaz' and perform religious observances.
Balancing the equity, a bench comprising Justices D Y Chandrachud and P S Narasimha, while hearing a plea of the Committee of Management Anjuman Intezamia Masjid which manages Gyanvapi mosque in Varanasi, passed the order and refused to stay the ongoing proceedings before the lower court. The bench said it needed to balance the rights of contesting parties and clarified that the order of the civil judge (senior division), hearing the plea of petitioner Hindu devotees, directing authorities to ensure the protection of the area would not restrict and impede the rights of Muslim to offer 'Namaz' and to perform religious observances.
"This is an interim arrangement till counsel for the plaintiff is here. We need to balance the rights of contesting parties.
The order of May 16, 2022, to the extent that DM, Varanasi shall ensure the protection of area where 'shivling' is said to be found will not impede upon the rights of the Muslims to offer 'Namaz' and perform religious observances," the bench said in its order.
Senior advocate Huzefa Ahmadi, appearing for the Gyanvapi mosque committee, said the Muslims need to perform 'wazu' or ablution as without that 'Namaz' would have no meaning under Islam.
Solicitor General Tushar Mehta, appearing for the Uttar Pradesh government, submitted though he is not a party to the civil suit the place where 'shivling' is said to be found is a place (pond) where Muslims perform 'wazu' and any damage may create a law and order problem.
They can perform 'wazu' somewhere else if it is necessary but the area where 'shivling' is said to be found needs protection, the law officer said.
The top court was informed by the Solicitor General that the plaintiff's lawyer Hari Shankar Jain had suffered some cardiac issues and was hospitalised in Varanasi.
Ahmadi said that a series of orders, which are unconstitutional, has been passed by the civil judge and the latest of which was passed on Monday ordering the sealing of the area on an application by Jain in the ex-parte proceedings in which the survey report was yet to be filed.
He said since the top court is now seized of the matter, the entire proceedings before the civil judge needed to be stayed.
The bench, however, refused to stay the further proceedings before the civil judge and said, "any judicial officer would understand the meaning of our orders. We don't need to stay it."
The clarification was given by the top court after Ahmadi pointed out that the impugned order in the opening paragraph says that the application filed by Jain (plaintiff) is allowed and had also issued specific direction to seal the area where the 'shivling' is said to be found and restrict the entry of Muslims to 20 and direction to CRPF commandant to provide protection to the premises.
Ahmadi said the order impugned is an order passed in a civil lawsuit where prayers were made to allow the plaintiff and others to worship and a declaration about the place.
The prayer categorically speaks about changing the status quo of the religious structure which is a mosque since time immemorial. This suit is barred as per the act of Parliament passed in 1991 but despite that, it was entertained and a series of orders were passed by the trial court including the appointment of court commissioner, he said.
Mehta said that Ahmadi should not cast any aspersion on the civil judge.
Ahmadi said when the committee approached the High Court, it said that the civil judge only appointed a court commissioner and the Muslim body's plea was innocuous and nothing will happen. This remark of the High Court was preceded by a series of events as the civil court passed orders and the court commissioner went on to do the survey amid security, he said.
He further said while the commission work was in progress an application was filed by the plaintiff saying that a 'shivling', which, as per the mosque committee a water fountain, has been found and the court allowed the applications and passed the order ex parte in a tearing hurry.
The court commissioner under the law is supposed to give his report in a sealed cover, which was not done. Instead, an application was filed while the commission's work was in progress and was allowed by the court, he said.
Mehta said that the civil court's order on one hand says the application is allowed but then goes on to pass specific directions.
Ahmadi said under the garb of proceedings, the status quo of the religious place is sought to be altered. These orders of the civil court should be stayed, the commission should be stayed and status quo prior to the proceedings should be restored.
The bench issued notices to the petitioner Hindu devotees and posted the plea of the mosque committee for hearing on May 19.
The Muslim side has been referring to the Places of Worship (Special Provisions) Act, 1991 and its Section 4 which bars filing of any suit or initiating any other legal proceeding for a conversion of the religious character of any place of worship, as existing on August 15, 1947.