Analysis: Could ASI survey of Gyanvapi mosque lead to it being exempted from Places of Worship Act?

On April 8, a civil court in Uttar Pradesh asked the Archaeological Survey of India to conduct a survey at the Gyanvapi mosque in Varanasi to determine whether it was built over a temple. The order was passed in a representative suit filed by devotees of the deity “Swayambhu Lord Vishweshwar” who claimed that the mosque was built at the site after a temple was demolished in 1669 on the orders of Mughal emperor Aurangazeb. They have asked the court to restore the land to the Hindus for the construction of a temple.

An ASI survey has obvious political ramifications. It was a similar survey in 2003 that muddled the Babri Masjid dispute in Ayodhya, when the ASI report claimed that there existed a large structure beneath the 16th-century mosque that could have been a temple. The ASI, however, was not able to provide any direct evidence that a temple was destroyed for the purpose of building a mosque.

Despite this, the Supreme Court in 2019 awarded the disputed site to the Hindu side for the construction of a Ram temple. Even though the Supreme Court did not base its judgement on the ASI survey, expressly stating that the title suit cannot be decided on the basis of such a survey, it acknowledged its findings with caveats.

But the ASI survey in Varanasi could become even more important than the one in Ayodhya. This is because of a fundamental difference between the Ayodhya and Varanasi cases.

The difference is related to the Places of Worship Act, 1991. Passed in the backdrop of a growing Ramjanambhoomi movement that demanded that a Ram Temple be built in Ayodhya at the site of the Babri Masjid, the law sought to protect the character of all places of worship. As per the law, the character of a place of worship has to be maintained as it was on August 15, 1947 and any legal proceeding that seeks to change the nature of the religious place would cease with the commencement of the law in July 1991.

The Places of Worship Act excluded the Babri Masjid dispute from its ambit since the matter was under legal contest at that time and was politically very sensitive.

The law also provided for other exceptions. This is where the importance of the ASI survey comes in.

But more on this later. First, some background context.

ASI survey

The Varanasi suit was filed on behalf of the Hindu side in 1991. It asked the court to declare that a significant part of the land on which the Gyanvapi mosque stood was the property of the original temple and then permanently stop the Muslim side from interfering in the possession of the land by the Hindu side.

In October 1997, the civil court ruled that the suit was barred by Section 4 of the Places of Worship Act, which said all suits and appeals seeking to change the character of a place of worship will stand abated with the commencement of the law.

A revision petition was filed against this order in 1998 before the district judge, who ruled in September that year that the civil court should deal with the matter afresh “only after taking evidences of parties”.

The Muslim side challenged this order before the Allahabad High Court in 1998, which stayed suit proceedings. This stay was in force till 2020, when the civil court, citing a 2018 Supreme Court judgement that said lower courts can resume proceedings in cases if stay orders are not expressly extended by the higher courts after six months, decided to restart the hearings.

This move was again challenged in the Allahabad High Court, which reiterated the stay order in February 2020. As reported by Scroll.in last week, lawyers representing the Muslim side pointed out that despite the existence of this stay and the fact that the High Court had reserved its judgement on the very maintainability of the suit on March 15 this year, the civil court chose to pass orders in the case.

In its April 8 order, the civil court decided that an ASI survey was necessary to establish the truth. That is, whether the mosque was built over a temple. This means the findings of the ASI would become part of the evidence in the case.

But given the fact that in the Ayodhya-Babri Masjid case the Supreme Court expressly said a title suit cannot be decided on the basis of an ASI survey alone, why does such a survey become crucial?

Ancient monuments

Apart from the Babri Masjid, the law provides certain other exceptions. To understand these, a reading of Section 4 provisions is necessary.

In simple words, Section 4 (1) states that any legal proceeding that seeks to change the character of a place of worship shall abate with the commencement of the Act and the religious character shall be maintained as it was on August 15, 1947.

Section 4 (2) maintains that if a suit or appeal or any other proceeding is instituted claiming that conversion of a place of worship took place after August 15, 1947, it should be disposed of in the same manner as Section 4 (1) by ensuring the character of the place of worship as it existed on August 15, 1947.

However, Section 4 incorporates a further exception.

Section 4 (3) (a) says:

“any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force.”

What this means is that if a place of worship of any religion is covered under the definition of ancient and historical monuments or an archaeological site or remains, this could be exempted from the ambit of the Places of Worship Act.

As per the Ancient Monuments and Archaeological Sites and Remains Act, 1958, an “ancient monument” is “any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years”.

In 2007, the Himachal Pradesh High Court, in a case relating to a Church in Shimla, said any structure that is more than 100 years old and satisfies the definition of ancient monument under the law, automatically becomes an ancient monument and there is no special declaration necessary. And once the place of worship is established as an ancient monument, it falls outside the ambit of the Places of Worship Act.

Legal ramifications

What would be the implication of Section 4 (3) (a) of the Places of Worship Act on the Gyanvapi mosque dispute in Varanasi?

If the ASI eventually finds that there are structures or monuments underneath the mosque, this could provide ammunition to the Hindu side to claim that the suit should be exempted from the Places of Worship Act. This is addition to the already existing claim for exception, that the temple’s character has not changed with the superimposition of a mosque.

A former High Court judge, who did not want to be named due to the sensitive nature of the dispute, said while it is theoretically possible to claim an exception based on the ancient monument clause, Section 4 (3) (a) has to be seen in the larger context of the Places of Worship Act.

The former judge said the provision on ancient monuments was meant to facilitate the takeover of a structure by the central government or the ASI to protect it, not to allow for a change of its character. “For example, the central government can declare a structure a monument of national importance,” the judge said. “It is difficult to accept that this provision could be used by private parties to establish title rights over land.”

Former Madras High Court judge K Chandru said the larger motivation for the Places of Worship Act has to be kept in mind, which is to protect places of worship from alteration of their character. “In my considered view, the very act of ordering an ASI survey is unconstitutional as the court has no jurisdiction to hear the suit,” he said. “You cannot change the religious character of a place just because the ASI finds something. It can only protect a monument if it finds such a monument is important.”