Ayodhya is decided. Varanasi’s Gyanvapi and Mathura’s Shahi Eidgah are under scrutiny. Sambhal, Ajmer and many more are about to start. (Express photo)
Ishrat Husain
New DelhiFeb 17, 2025 14:37 IST First published on: Feb 17, 2025 at 13:34 IST
Ayodhya is decided. Varanasi’s Gyanvapi and Mathura’s Shahi Eidgah are under scrutiny. Sambhal, Ajmer and many more are about to start. It is a matter of great concern as a particular pattern is emerging. Some litigants are seeking surveys of mosques without providing substantial evidence. However, the Supreme Court granted a temporary halt on December 12, 2024, in the Sambhal Jama Masjid case until the validity of the Places of Worship Act, 1991, is decided. A two-judge bench passed the order to this effect while hearing a special leave petition filed by Sambhal’s Shahi Jama Masjid management committee, challenging the order of a civil judge appointing an advocate commissioner for a survey of the mosque.
Notably, the civil judge had passed the order against the norms of judicial discipline. It was an ex parte order. The same day the suit was registered, the court accepted the plaintiff’s application for exempting the mandatory notice period under Section 80 (2) of the Civil Procedure Code, citing urgency. The SC bench said even though it had reservations about the order of the civil judge, it would advise the petitioner to approach the high court first. However, the apex court decided to keep the pending special leave petition. Consequently, the mosque management committee filed a revision plea in the Allahabad High Court. The HC ordered the respondent to file their reply within four weeks and fixed February 25, the day of the hearing.
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Sometimes, illegality is overshadowed. The apex court stayed the civil proceedings in the local court and directed the mosque survey report prepared by the advocate commissioner to be kept in a sealed cover. This stay is a temporary relief but does not assuage legitimate concerns. For instance, tensions erupted in Sambhal again, this time over a well located near the entrance of the Shahi Jama Masjid. The SC intervened and ordered a status quo on January 10.
The Places of Worship (Special Provisions) Act, 1991, remains valid to this day, despite the lower courts’ attempts to undermine it. Not only does the Act bar civil suits concerning the alteration of the character of places of worship, but there are also other laws that restrict such petitions. For instance, the explanation of Section 9 of the CPC, 1908, clarifies that matters of religion and ceremony are not civil in nature.
It is concerning that many lower civil courts often treat religious matters as civil issues. Similarly, Order 7, Rule 11(d) of the CPC, 1908 allows for the rejection of a plaint in a civil suit if it is barred by any law. The principle that “ignorance of law is no excuse” is well established.
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It is difficult to believe that the civil judges of the Varanasi and Sambhal courts were not aware of these laws, including the SC’s ruling on the Places of Worship Act laid down in the Ayodhya case. The civil courts used Rules 9 and 18 of Order 26 (CPC) to appoint an advocate commissioner for the investigation. According to these rules, the court may issue a commission to such person as it thinks fit, directing him to make a local investigation and to report thereon to elucidate the matter in dispute or ascertain the market value of property. These provisions are to resolve before a civil court the issues already in dispute. They are not supposed to create dispute itself in an undisputed matter.
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There is a common view that this problem could be triggered due to the oral remark of former CJI DY Chandrachud. However, it goes back to the decision of the then CJI N V Ramana, who, on May 13, 2022, agreed to list the Gyanvapi mosque case before a bench presided over by Justice Chandrachud. The question is why this case was entertained as Section 4 of the Places of Worship (Special Provisions) Act, 1991, specifically bars the jurisdiction of courts regarding the declaration of the religious character of places of worship. However, Justice Chandrachud’s remark that the Act prohibits “altering” the character of a religious place but does not prevent courts from “ascertaining” the religious character of any place of worship may have instigated lower courts to entertain such cases. The Allahabad High Court, on December 19, 2023, held up a batch of civil suits filed by Hindu worshippers seeking the right to worship in the Gyanvapi mosque and the restoration of a temple at the disputed place, a matter pending before the Varanasi court.
It was expected that the SC’s judgement in M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors (2019) would end such disputes in future. But it seemed to have opened a Pandora’s box. After DY Chandrachud’s remarks, it is assumed that the Places of Worship Act does not prevent courts from “ascertaining” the religious character of any place of worship. Can the plea be taken before a court for the ascertainment (not alteration) of the religious character of the Ram temple in Ayodhya? It is a fait accompli that there was a mosque before the temple. The Places of Worship Act, therefore, must be followed stringently.
The writer teaches law at Aligarh Muslim University
