Allahabad HC reserves its order in Kashi Vishwanath Temple-Gyanvapi mosque case

The Allahabad High Court on Tuesday reserved its verdict on pleas against a Varanasi court order for an "archaeological survey" of the Kashi Vishwanath Temple-Gyanvapi mosque complex to ascertain if any temple ever existed in place of the mosque.

A Varanasi fast-track court of senior division civil judge had on April 8 this year ordered the Archaeological Survey of India to conduct a “comprehensive physical survey” of the complex of the two shrines to determine if any temple was demolished to build the mosque adjacent to the Kashi Vishvanath temple. The Varanasi court’s order had been challenged by Uttar Pradesh Sunni Central Waqf Board and Varanasi’s Anjuman Intazamia Masjid.

Justice Prakash Padia of the high court reserved his order after hearing counsel for the petitioners, the central government and the state government. The petitioners’ counsel had earlier contended that the Varanasi court’s order was “not legally tenable” because the very suit on which the lower court gave its order was non-maintainable. The counsel contended that section 4 of the Places of Worship (Special Provisions) Act, 1991, bars the filing of any suit or instituting any legal proceeding in any court seeking any change in the religious character of any place of worship as it existed on August 15, 1947.

As per the 1991 Act, no relief could have been sought or given on any plea seeking any change in the status of any religious place as it existed on August 15, 1947, the petitioners’ counsel contended. They also argued that when the high court had already reserved its judgment on the issue of maintainability of the suit pending before the Varanasi civil judge, the subordinate court could not have decided the issue.

The Varanasi senior division civil court had given its order on a plea filed by advocate Vijay Shankar Rastogi in 2019. Rastogi had moved the Varanasi civil court as the ‘next friend’ of “the self-existing Lord Vishweshvar Kashi Vishwanath", in the deity’s status as a ‘legal person’ under a doctrine of "legal fiction". According to this doctrine, non-living entities including banks, corporations and even deities, but not mosques, are presumed to be living persons for adjudication of any matter involving them and such entities are represented in the court by what is known as their “next friend”.

The Varanasi civil court had asked the Uttar Pradesh government to get examined the disputed premises of the twin shrine by a five-member ASI team. The subordinate court had also stipulated that at least two members of the five-member ASI team of eminent archaeologists should be from the minority community.