Supreme Court's 2023 order in Gyanvapi case gives fillip to survey orders on disputed structures?

New Delhi: The Supreme Court's 2023 order, which refused to stay a scientific survey at the Gyanvapi Mosque complex, appears to have given a fillip to different groups to stake claim over several other disputed places of worship in the country.

On August 4, 2023, the top court refused to stay the Allahabad High Court order allowing a scientific survey by the ASI at the mosque complex to determine if the 17th-century structure was built upon a pre-existing temple while telling the Anjuman Intezamia Masjid Committee (which manages the Gyanvapi Mosque at Varanasi) that "what is frivolous to you is faith to the other side".

A bench headed by former Chief Justice of India D Y Chandrachud had asked the Archaeological Survey of India (ASI) to carry out the survey through "non-invasive methodology".

Earlier on May 20, 2022, the top court made an important oral observation while hearing the Gyanvapi dispute and said that ascertaining the religious character of a place of worship was not barred under the Places of Worship (Special Provisions) Act (PWA), 1991.

A bench headed by Justice Chandrachud, since retired, said it had dealt with the provisions of the PWA in its 2019 Ayodhya verdict and Section 3 did not expressly bar ascertaining of the religious character of the place of worship.

Section 4 of the PWA prohibits change of character of religious places as they existed as on August 15, 1947.

Since the August 2023 order of the apex court, petitions seeking survey and claim over religious structures notwithstanding the PWA, have reached different judicial fora.

On December 14, 2023, the Allahabad High Court allowed a court-monitored survey of the Shahi Idgah Mosque complex adjoining the Krishna Janmabhoomi Temple in Mathura.

However, an apex court bench headed by Justice (now Chief Justice of India) Sanjiv Khanna on January 16 stayed the survey, saying there were certain legal issues that had arisen in the dispute.

It questioned the "vague" application made before the high court for appointment of a court commissioner for the survey in Mathura.

Tension was brewing in Uttar Pradesh's Sambhal since November 19, when a Mughal-era Jama Masjid was first surveyed on the court's orders following a petition claiming that a Harihar Temple once stood at the site.

Violence erupted there on November 24 as protesters gathered near the mosque and clashed with the security personnel, leading to stone pelting and arson. Vehicles were torched, and police personnel were injured.

The violence claimed four lives and left over 20 injured.

In a separate matter, a court in Ajmer on November 27 directed that notice be issued to three parties in a civil suit claiming there was a Shiva temple in the dargah of sufi saint Moinuddin Chishti.

A dispute over a medieval-era structure in Madhya Pradesh's Dhar district has also reached the top court which on April 1 refused to stay a "scientific survey" of Bhojshala.

However, the apex court clarified no action should be taken without its permission on the outcome of the scientific survey.

Hindus consider Bhojshala, an ASI-protected 11th-century monument, to be a temple dedicated to Vagdevi (Goddess Saraswati), while the Muslim community calls it Kamal Maula Mosque.

Under an arrangement made by the ASI on April 7, 2003, Hindus perform "puja" on the Bhojshala premises on Tuesdays and Muslims offer "namaz" in the complex on Fridays.

In the Gyanvapi case, the Muslim side has been referring to the PWA and Section 4 of the law. They contended that the survey exercise by the ASI was akin to "digging into history", violating the PWA and impinging upon fraternity and secularism.

The Varanasi district court on July 21, 2023 directed the ASI to conduct a "detailed scientific survey" -– including excavations, wherever necessary -- to determine if the Gyanvapi Mosque located next to the Kashi Vishwanath Temple was built upon a temple.

The mosque's "wazukhana" (ablution pond), where a structure claimed by Hindu litigants to be a "shivling" exists, will not be part of the survey following an earlier Supreme Court order protecting the spot in the complex.

Hindu activists claim a temple has existed at the site and was demolished in the 17th century on the orders of Mughal emperor Aurangzeb.