The peril of allowing disputed mosque surveys

THE dispute over the Shahi Jama Masjid in Sambhal is the most recent instance in a spate of petitions in courts, seeking directions to survey existing mosques to determine temple remains. This is part of a concerted attempt to intensify disputes over mosques in Varanasi, Mathura and, now, the Shahi Jama Masjid in Sambhal, which enjoys the official status of a 'protected monument' and has been earlier declared a 'monument of national importance.'

Over the past few years, these disputes have been escalated with the active encouragement of politically affiliated rightwing groups, aimed at weaponising faith and puffing up interreligious conflicts.

After the Supreme Court delivered the verdict in favour of the Hindu parties in the Ayodhya case, it was widely believed that conflicts over disputed sites would cease and communal mobilisation would, henceforth, abate.

Contrary to this, the Ayodhya judgment opened up the pathway for petitions demanding access to mosques on grounds that there was a temple beneath it. There is an expectation that given the prevailing political climate, the courts will respond favourably. The template is clear — a court-mandated archaeological survey and a judiciary which privileges the faith of the majority in interreligious disputes.

It was to prevent such attempts to change the character of the places of worship in the name of correcting perceived historical wrongs that Parliament enacted the Places of Worship (Special Provisions) Act, 1991. This law essentially lays down that the religious character of all places of worship would remain the same as it was on August 15, 1947, barring the Ram Janmabhoomi in Ayodhya, and that no person shall convert any place of worship of any religious denomination into one of a different denomination or section.

The court then mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.

This, however, couldn't stop proceedings in the Gyanvapi case from taking a swift turn after five Hindu devotees moved a Varanasi civil court, seeking permission to offer daily prayers at the Gyanvapi mosque, which they claimed housed several Hindu deities.

This was followed by an order of a district court directing the Archaeological Survey of India (ASI) to determine if a mosque was superimposed on a pre-existing temple. The Anjuman Intezamia Masjid, which manages the affairs of Gyanvapi, had argued in the apex court that the survey of the mosque premises would defeat the spirit of the 1991 Act. But this was set aside. The Supreme Court allowed the right-wing groups to proceed with the litigation. The survey was subsequently carried out by the ASI.

Claims to the Gyanvapi mosque are a re-enactment of the events in Ayodhya. As in the case of Ayodhya, this dispute is not about law, nor history, but about politics and pushing the far-right project of Hindu supremacy, with courts coming up with ingenious legal justifications to circumvent the Act.

The former Chief Justice of India (CJI), DY Chandrachud, set the ball rolling by his observation that changing the 'religious character' of a place of worship may be prohibited under the Act, but 'finding the nature of the religious place' was not. This opened the way for resurrecting dozens of historical disputes as there was nothing barring courts from trying to ascertain the 'religious character' of a particular place of worship.

In line with this approach, the Supreme Court refused to stay the Allahabad High Court's order allowing a survey to be conducted at the Shahi Idgah mosque in Mathura to examine whether it was built on a temple.

Not only can this train of events be used to alter the character of the place of worship, but it also allows the right-wing to rake up issues around disputed sites of worship nationally and dredge up religious sentiments locally to keep the communal pot boiling.

The mosque management committees in Varanasi and Mathura cases challenged the survey exercises based on the Places of Worship (Special Provisions) Act, 1991. But this was stymied by the court's willingness to entertain pleas challenging the constitutionality of the Act itself, which opens up another communal front.

These petitions are pending in court since 2020. No progress has been made in the case in the last four years. The pendency of these petitions has allowed the law to be bypassed in the Varanasi and Mathura cases. It serves as a signal to all other courts in the judicial hierarchy that the Act can be circumvented. This damages its legitimacy even as the apex court is sitting on the question of the suits being barred by the 1991 Act.

Allowing a survey of Gyanvapi mosque has opened a Pandora's box. The outcome is dangerously communal as we see in Uttar Pradesh. The Sambhal local district court followed the lead provided by the Gyanvapi order, green-lit by the former CJI. Its domino effect is evident in the Sambhal violence which occurred after the completion of an official survey of the Shahi Jama Masjid. Arson and violence in its wake have claimed five lives.

This time, too, the judiciary was upholding religious sentiment by allowing the survey based on a complaint by right-wing groups alleging that Mughals demolished a temple to build the historic mosque. Local Muslim organisations questioned the 'undue haste' and the court's failure to take the viewpoint of the mosque committee before ordering the survey, but to no avail.

The same template has been adopted by a Rajasthan court, which recently accepted a petition claiming that the Ajmer Sharif Dargah was built over a temple, overlooking the fact that it is actually a place of Hindu-Muslim unity where people of all religions worship and celebrate shared traditions. The court issued a notice to the government, seeking its response to a physical survey of the dargah. This lawsuit, similar to the Gyanvapi and Sambhal cases, claiming that there is a temple under the mosque, is a great blow to syncretism.

Such pleas and complaints shouldn't be entertained under the Places of Worship Act, which prohibits their consideration. However, courts have disproven such expectations, setting aside the explicit protections provided by the 1991 Act. Courts bear responsibility for allowing these disputes to multiply despite the deepening divide it has caused between communities.

The post-survey violence in Sambhal reinforces the principle that courts must enforce the Places of Worship Act to preserve communal harmony. The social fabric and secular character of the nation is at stake.