The Courts , Constitution and Popular frenzy

 

All indications available from court proceedings in the Varanasi Gyanvapi mosque case available so far lead one to the conclusion that the courts are failing to uphold constitutional principles and surrendering to popular frenzy deliberately trumped up by religious fundamentalists.

That the Gyanvapi mosque was built by Mughal emporor  Aurangzeeb  (1618- 1707) after pulling down Hindu temples is an undisputed fact. But what we have to come to terms with is whether we should set the clock back by pulling down the mosques built on debries of  temples pulled down 500 years ago by ruthless rulers like Aurangzeeb.

 

The sequence of events at Varanasi makes very strange reading .  Civil Judge (Senior Division ) Ravi Kumar Diwakar , hearing a plea by five Hindu women seeking permission for daily prayers at Maa Shringar Gauri  Sthal on the outer wall of the mosque complex on 16 May ordered , “ District Magistrate , Varanasi ,  to immediately seal the place where the Shivling has been found. No person should be allowed to enter the place which will be sealed.”

The honourable Civil Judge passed the order on an application filed by advocate Hari Shanker Jain , representing the five women petitioners on 16 May saying “ a Shivling  is found in Masjid complex at the place where wuzu khana is there.”

The order was given a day before the commission appointed by the court to survey the masjid complex submitted its report to the court. The commission had completed its survey only on 16 May  and was scheduled to submit its report to the court on 17 May . The finding s of the report were till then  “confidential”.  Now the   question is  how did the petitioners’ advocate learn about the existence of the Shivling and how could the civil judge pass an order even before he went through the findings of the court appointed commission?

According to the court order the application filed by the advocate for the petitioner said that the survey commisision found the Shivling inside the court complex on 16 May. “ This is very important evidence . Hence the CRPF commandent should be directed to seal it. Varanasi District Magistarte should be directed to stop the entry of Muslims. Only 20  Muslims should be allowed to pray at the mosque and they should not be allowed to perform wuzu ( ablusion) “, the order added.

But S M Yasin General Secretary of the Anjuman Intezamia Masjid Committee said the structure is part of the fountain in the wuzu area. This is part of the fountain which they are calling Shivling.”

The Civil Court in Varanasi had on 8 April 2022 appointed the advocate commissioner Ajay Kumar Mishra to carry out an inspection of the disputed site  and directed him to “ prepare videography of the action and submit a report.

The mosque committee moved the Allahabad High Court against the Varanasi Court’s direction but the HC on 21 April dismissed the petition  and on 26 April the Varanasi court again ordered videography of the disputed site.

The inspection was halted after the mosque committee filed an application alleging bias and demanding replacement of the court appointed Advocate Commissioner . On 12 May the court rejected the prayer to change advocate commissioner Mishra and ordered the resumption of the video survey , even if it meant getting “ locks opened / broken . The inspection report should be submitted on 17 May the report said.

In contrast to  the rather disturbing developments taking place in Varanasi with regard to the Gyanvapi mosque complex a very different but very welcome development is taking place in Delhi’s Qutumb Minar complex case.

Additional District Judge Nikhil Chopra hearing a petition for restoration of right to pray at the Qutub complex asked how one can claim a legal right for restoration of something that happened 800 years ago.

He was hearing a petition challenging a lower court order dismissing an application of Hindu diety Vishnu , Jain diety Tirthankar Rishabh Dev and others  seeking the restoration of “ 27 Hindu and Jain temples “ at the Quwwat -ul-Islam mosque inside the Qutab complex.

On 24 May Archeological Survey of India (ASI) argued that the mosque’s character was frozen after it came under the protection of the Ancient Monuments and Archeological Sites and Remains ( AMASR) Act .1958.

Even though architectural images of Hindu and Jain deities ere used in the construction of the complex , revival of worship cannot be allowed there as it was “ not practiced at the time of protection of the monument . A fundamental right cannot be availed in violation of any status of the land “ it said.

On 29 Noveebr 2021 Civl Judge Neha Sharma while rejecting the suit had said “ Nobody had denied that wrongs were committed in the past but such wrongs cannot be the basis of disturbing ( the ) peace of our present and future.”

And while hearing the challenge Additional district Judge Chopra remarked : “ Diety is surviving for the last 800 years without worship. Let it survive like that !”.How things will move in the two different cases is anybody’s guess.  But one thing is clear, if the courts do not uphold the constitutional principles we are headed for hard times.