Faith in the Court

SHOUTS OF “BABA MIL GAYE” FROM A petitioner in the Gyanvapi case on May 16, referring to the reported discovery of a Shivling during a court-ordered survey in the precincts of the mosque, reignited politics over the Kashi and Mathura shrines, setting the stage for legal battles where faith, history, constitutional tenets and the law will be argued and contested to settle rival claims that go back several centuries. And unlike in the case of the Ayodhya dispute that dragged on for decades, there is a certain urgency to the developments relating to Hindu grievances that the Adi Vishweshwar and the Krishnajanamsthan temples were pulled down by Mughal emperor Aurangzeb to construct mosques that suggests resolutions for the current petitions may not take long.

In the space of a few weeks, a court-ordered survey of the Kashi Vishwanath Temple-Gyanvapi Masjid complex has been concluded with neither the Allahabad High Court nor the Supreme Court agreeing to halt proceedings. In significant observations, the Supreme Court held that conducting a survey to determine the religious character of a place is not barred by the 1991 Places of Worship (Special Provisions) Act. Meanwhile, earlier this month, the Allahabad High Court directed a Mathura court to dispose of all cases relating to the Krishna Janmabhoomi-Shahi Idgah dispute within four months. Thereafter, the Mathura district court has allowed a civil review petition filed on behalf of Sri Krishna Virajman seeking restoration of the entire complex to Hindus, ruling that the petition does not fall foul of the Places of Worship Act. The court held that since the decree regarding a 1968 agreement dividing the complex—now challenged on grounds of fraudulence—was concluded before the enactment of the 1991 law, it fell outside its purview. It went further and said that the lower court had erred in not considering both sides and that maintainability of the suit will be decided during trial on the basis of evidence provided by the parties.

The Mathura ruling led advocates representing the Idgah trust to argue that the apex court must urgently clarify the provisions of the law, fearing more such petitions to ‘undo’ the past. However, lawyers representing the Hindu petitioners point out that the exceptions are clearly stated in the law which can also exempt an “ancient and historical monument or an archaeological site” under the provisions of a 1958 law. The Vishva Hindu Parishad (VHP) has argued that the latter condition can apply to the Gyanvapi dispute and it could be part of the arguments that the Varanasi district court will consider in keeping with the directions of the Supreme Court to hear the contending pleas relating to the Kashi shrine.

The flurry of developments could mean that the off-and-on Kashi and Mathura disputes might be headed for a resolution even though there is no popular agitation for the ‘restoration’ of the shrines for worship by Hindus. The precise plea of the five women petitioners in the Gyanvapi case is that they be allowed regular worship of the Shringar Gauri idols along the outer wall of the mosque. Worship has been restricted to two Navratri days since the early 1990s. It is in this context that a civil court ordered videography of the complex under the supervision of a court-appointed commissioner, Ajay Mishra.

The survey was carried out in the presence of representatives of both sides, including the Intezamia Masjid Committee. While the Varanasi court will hear the plea of the women devotees pertaining to worship at the outer wall, VHP remains firm in demanding that the mosque be relocated as in the case of the Ayodhya ruling (where five acres was granted for a new mosque) and the same be done at Mathura (see interview of Alok Kumar). In his recent pronouncement, the Varanasi District and Sessions Judge Ajay Vishwesha said he would first hear the Muslim side’s plea challenging maintainability of the civil suit filed by the Hindu petitioners. The issue may again require an evaluation of the Places of Worship Act, with the Hindu side bound to bring up the survey report that reportedly found several Hindu motifs and a large Shivling-like structure in the pond and chambers of the mosque. The Muslim side has said the Shivling is a fountain in the wuzu (ablution) area. The report is understood to have stated that the walls of the chambers had representations of drums, trishul, elephants, lotus and other flowers. The lawyers for the Hindu petitioners argue that the visual and sculptural figures are not likely to be part of any mosque as they violate the tenets of Islam.

The historicity of the destruction of the Kashi temple in 1669 on the orders of Aurangzeb is not much in dispute. The remnants of the older temple visible on one of the walls of the mosque are clear evidence and the likely objective of the act was to remind the dispossessed of their loss. In the Mathura case too, the existence of a temple is attested to in older accounts even as the historicity of claims as to whether the site could be referred to as the birthplace of Krishna is debated. The Gyanvapi matter is now a civil suit and one that will discuss land rights of claimants as well as the commissioner’s survey report along with the law on adverse possession.

THE COURT PROCESSES IN BOTH CASES ARE UNDERWAY but the political pot is bubbling over. All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi declared that Muslims would not “lose another mosque” and Communist Party of India-Marxist (CPM) politburo member Brinda Karat expressed disappointment at the Supreme Court’s refusal to stay the survey of the Gyanvapi mosque. VHP has expressed satisfaction at the survey being carried out and said worship had been going on at the Gyanvapi site (outer wall) since 1947 and the area where a Shivling was found was undisturbed all along. The Bharatiya Janata Party (BJP) has maintained a cautious stance, its spokespersons not joining issue with either AIMIM or the Left. The view in the party seems to be in favour of waiting for the legal cases to proceed so that the issues in contention—maintainability, rights of devotees and survey findings—are framed and taken into cognisance by the court. The Rashtriya Swayamsevak Sangh (RSS) has so far limited itself to a brief comment that facts were emerging and the truth cannot be suppressed. “I believe it is time we put historical facts in the right perspective before society,” RSS media head Sunil Ambekar said. Sangh leaders feel that saying more at the current point in time is not required given the numerous pleas filed before the Varanasi court. The muted BJP response possibly reflects a concern that heated rhetoric can lead to law and order problems, not the least in Uttar Pradesh (UP) where the Yogi Adityanath government has just been returned to office. Already, claims have surfaced about a temple structure in Mangalore and a case was filed (since dismissed) seeking worship at the Qutub Minar in Delhi on the grounds that the Quwwat-ul-Islam mosque was built by demolishing Hindu and Jain temples.

Reflecting the Centre’s stand, the Archaeological Survey of India (ASI) told the court that the complex is not a place of worship and this was the case even in 1914 when it was designated a protected monument. The reports of the recovery of the Shivling at the Gyanvapi mosque, however, have sparked a sharp debate with some commentators likening it to BJP’s Ayodhya moment.

The Sangh Parivar believes there is strong traction for the Hindu claim that temples in Mathura and Varanasi were brought down and these represent important aspects of faith. The saffron camp also feels that the credibility of political and intellectual opposition to the Kashi-Mathura claims has declined as the apex court did finally deliver a verdict that facilitated the construction of the Ram Mandir. In this context, it is felt that the claims of a section of historians ideologically opposed to BJP that there was no proof of a pre-existing temple at Ayodhya were ultimately rebuffed while the court ruled that the plot had not been held exclusively by Muslims. The political and ideological battle can be expected to be heated but the Sangh Parivar believes it no longer faces the deficit it did when VHP first took up the Ayodhya agitation.

The Supreme Court’s observation on the “complexity of issues” involved in the Gyanvapi civil suit makes it evident that the case is unlikely to be settled in the light of the applicability of the Places of Worship Act alone. The survey report, which is yet to be discussed in court, indicates rubble that contains Hindu or temple-type remnants and demands for a relook at the 1991 law are being voiced. In the past, discussions between the All India Babri Masjid Action Committee, the Muslim Personal Law Board and VHP on the Ayodhya dispute often came close to an agreement but could not be clinched. Private pledges could not withstand public scrutiny as any move to resile from positions was bracketed as a betrayal. Negotiations facilitated by the late Kanchi Shankaracharya Jayendra Saraswathi in 2002 saw VHP stalwart Ashok Singhal agree to a court verdict in the case but the Muslim side could not, despite considering the offer in detail, accept the proposal. The pressure of expectations that rested on claims and accounts that did not finally stand up in court prevented the Muslim side from agreeing to an out-of-court settlement. Giving up their claims would attract the charge that this was done under duress due to majoritarian politics but the failure of talks only delayed the inevitable. VHP will discuss the developments at the meeting of its Margdarshak Mandal (steering committee) on June 11-12. The Mandal comprises various religious heads and is not a VHP body alone. Meanwhile, RSS chief Mohan Bhagwat is scheduled to meet senior Sangh leaders in early June as part of his annual engagements and he could put forward a view on the Kashi and Mathura cases, indicating the thinking within the organisation. In the past, he has said the agitation for the Ram Mandir happened in a particular context and there was no case for any fresh stir for the two other shrines. In the Sangh view, the Gyanvapi and Krishna Janmabhoomi shrines stand out as deliberate instances of desecration of sites deeply associated with the Hindu faith. In the broader interpretation, a failure to rectify these ‘humiliations’ is a hurdle to a full acceptance of national and cultural identity, besides being a source of continuous discord between Hindus and Muslims.

The fresh salience of the cases is being read as a shot in the arm for BJP’s plans to seek a third term in office in 2024 and there is little doubt that a more insistent and open advocacy of its cultural programme (renaming Aurangzeb Road as APJ Abdul Kalam Road and Dalhousie Road becoming Dara Shikoh Road are small but telling markers) promotes a recognition of homegrown ‘patriots’ who resisted invasions and Mughal rule in the middle ages. But the BJP leadership has so far not forgotten that Hindutva needs to go hand-in-hand with economic well-being and development and will remain wary of an agitational approach. The Supreme Court’s decision to hear and pronounce on the Ayodhya case in July 2019 was a watershed moment as the top court had often shied from grappling with the issue. On occasions, as in its rejection of the PV Narasimha Rao government’s single-point reference under Article 143 in 1993 seeking a ruling whether a Hindu temple or structure pre-existed the Babri Masjid, the court refused to enter the arena. But that changed in 2019 and there is now a very real anticipation that complex matters of faith and law can indeed be sorted out by the judicial process.

(Also read ‘Aurangzeb’s Reign in the Light of His Own Orders’ by François Gautier)

AurangzebGyanvapi mosqueKashi VishwanathKrishna Janambhoomi templeQuwwat-ul-Islam mosque