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Analysis Share This Page
Gyanvapi Dispute and Place of Religious Act 1991
by Dr. Jaipal Singh Bookmark and Share

In the northern parts of India, along with the rising temperature due to harsh summer, the temperature on account of the communal tension and conflict too is rising once again. This time, the focal point of the dispute is the so-called Gyanvapi Mosque versus Kashi-Vishwanath Temple in Varanasi, Uttar Pradesh and fresh controversy has erupted following the order of the district civil court for the survey of the Gyanvapi complex to verify veracity of the claims of the Hindu litigants. Although the litigation on the subject is very old since the British Raj in the previous century, the current court order has come after over thirty years of legal battle that was started in 1991 by Hindu litigants. The irony of the Indian democracy and secularism is that despite the fact recorded about existence of the Vishweshwar (Shiva) Temple at the disputed Mosque site and former’s demolition in 1669 on the order of the Mughal Emperor Aurangzeb in historical books and documents, Hindus have been denied their right of worship and are struggling to regain their right.

According to various estimates, the Islamic invaders, raiders and rulers had together destroyed or damaged approximately 40,000 temples in various parts of the country, especially in the Northern India. Just to illustrate it, Nadir Shah had almost completely ruined Delhi and destroyed Mathura temples during his raid in 1739 slaughtering thousands of people, raping women, and enslaving women and children, besides indulging in enormous loot. According to records, it took about 20,000 mules and equal number of camels to carry off the loot back to Persia. Only temples of the Southern India and the higher reaches of the Himalayas had largely survived the onslaught as even Mughals could not reach in large parts of these territories. Although the conventional secular and liberal block of the country dismisses all such reports and excesses as mere myth or figment of imagination but even many archaeological findings indicate that majority of Islamic prayer halls and mausoleums were built from the debris of the destroyed temples and other Hindu structures.

What is Current Controversy?

Although numerous Hindu temples and religious places in India were destroyed and damaged by the Islamic perpetrators over the last many centuries and status quo is maintained but the community have never been able to reconcile with the loss of three crucial temples in North India which relate to the birth places of Sri Ramchandra at Ayodhya, Shree Krishna at Mathura and Lord Shiva temple at Varanasi (also Kashi, Banaras ) in the state of Uttar Pradesh. After a protracted legal battle of several decades, the Ram Janmbhumi was ultimately restored to Hindus in November 2019 by the Supreme Court for the exclusive and unrestricted worship by the devotees. In the aforesaid context, it may be relevant to mention that “The Places of Worship Act, 1991” passed by the then Congress Union government prohibits conversion of any place of worship and provides for the maintenance of the religious character of any place of worship as it existed on the day of independence i.e. 15th August 1947.

The communal dispute over the Kashi-Vishwanath Temple - Gyanvapi Mosque is almost as old as the life of the aforesaid Mosque which came in limelight again in 2021 when five Hindu women filed a petition in the district civil court with a request that they should be granted their right to worship the idols of deities installed within the Gyanvapi complex. Consequently, the district civil court ordered a survey of the alleged Mosque premises appointing an advocate court commissioner to complete the given survey exercise. However, the Muslim side opposed the idea of survey and specifically raised objection about the commissioner thus appointed alleging bias. The court refused to entertain this demand; however, it appointed one more special commissioner and an assistant commissioner to jointly carryout already assigned survey in the presence of the representatives of all concerned parties to submit report by 17 May 2022.

The proceedings in the Varanasi district court were challenged in the Supreme Court by the Anjuman Intezamia Masjid Committee, which manages the alleged Gyanvapi Mosque, arguing that the suit filed by the five women was not tenable in view of the provisions of The Places of Worship Act, 1991 and therefore the civil court should be restrained to take any further action in the matter. In the meantime, the survey ordered by the lower court was conducted under tight security provided by the district administration and police on 14, 15 and 16 May. On the third and final day of survey, the Hindu side claimed that the historic symbol of the deity viz. Shivalinga was located in the pond facing the idol of Nandi, the traditional attendant of Lord Shiva. Such a pond is usually found in Mosques for the use of Namazees for abulation before offering the namaz and according to the Mosque committee, it is a fountain in the abulation pond. On the urgent plea of plaintiffs, the judge passed an order on same day that the place where Shivalinga is located, having a crucial evidentiary value, must be immediately sealed and secured by the administration under the specific protection of the CRPF (Central Reserve Police Force).

In their initial hearing on 17 May, the Supreme Court declined to grant immediate stay of the lower court proceedings, passed an order for the administration to protect the spot where the Shivalinga was claimed to have been found and maintained the right of Muslims to offer namaz in the Mosque shall not be restricted owing to these developments. In the mean time, the Commissioners appointed by the civil court at Varanasi have submitted their survey report on 19 May under a sealed cover along with the detailed videography of the entire disputed site of the Gyanvapi complex including external and internal walls. On the same day, the Supreme Court too had another hearing, following which the three judge bench led by Justice Dhananjaya Y Chandrachud restrained the Varanasi judge for taking any further action in the alleged Mosque survey case till the apex court’s next hearing scheduled on 20 May.

The survey itself has its own saga of conflicts and controversies. Initially, the said survey was attempted on 6th and 7th May under single court commissioner but due to stiff resistance posed by Muslims, the administration backtracked sensing serious law and order problem; hence the survey and videography of only outside premises could be carried out for a brief stint on 6th May. Among other objections, the Muslim side also sought the removal of the court appointed commissioner on alleged bias. Hence another specific order was passed by the district court appointing two more commissioners and directing the administration and police to ensure safety of surveyors’ team and removal of every resistance and hurdle at the site. Thus the three-day survey work could be completed by the appointed team on 16 May under tight security provided by the administration and the contingent of a paramilitary force. In view of certain findings, the Hindu women petitioners have again sought indulgence of the court for fresh survey of the Mosque’s eastern part and removal of the temporary wall facing the idol of Nandi.

While the contents of the court commissioners’ final report will be known only after the proceeding of the court is resumed on 23 May or after, the eye-witness account and two-page report summarizing the survey work done on 6th and 7th May suggest that apart from the Shivalinga comprised of black stone found in the wazookhana, several evidences such as fragmented deity including four Hindu idols, walls inscribed with Hindu motifs, temple debris, several stone slabs (partially damaged and otherwise) lying on floor with the shapes/engravings of Seshanag, lotus, swastika, bell, trident, urn, conch shell and remains of used diya (lamp) have been found inside the alleged Mosque premises, particularly on its western wall. These signs and symbols are very common and popularly used in Hindu culture and traditions in socio-religious life. Even more intriguing is the question as to why these signs and symbols were not removed even after over 350 years of the existence of the Mosque at the site. According to the cognoscentes’ opinion, Islamic rulers deliberately left such evidences to teach lesson by inflicting thus eternal humiliation to the kafir idolaters.

Apart from the litigation before the civil court judge at Varanasi, a slew of petitions have also been moved in the Allahabad High Court and Supreme Court seeking court intervention and various reliefs by the two sides. The 3-judges bench of Supreme after hearing the facts and arguments of both Hindu and Muslim side has passed an order on 20 May 2022, the salient points which can be summarized as under:

  • The petition of the Muslim side has been transferred to the District Judge Varanasi to decide the maintainability of the application of the Mosque committee stating it is barred by the law of Parliament with eight weeks.
     
  • The area where Shivalinga is reported to have been found shall be protected by the administration.
     
  • The Muslims shall be allowed to offer Namaz in the Mosque area and suitable arrangement for their wazoo (abulation) shall be made by the administration.
     
  • The Supreme Court did not pass any order on the survey conducted by the local civil court including its any further proceedings.
     

History of the Kashi-Vishwanath Temple - Gyanvapi Mosque

The ancient Vishweswara Temple, which later became more popularly known as the Kashi-Vishwanath Temple, was considered to be the site of one of the twelve jyotirlinga representing Lord Shiva in the Bharatvarsha (India), the account of which is available in many Mahapuranas, including the Skanda Purana and Linga Purana dedicated to Lord Shiva. There are disputes on several aspects of the Indian Chronology between the Western and traditional Indian historians but even if we uphold the Western view point, both the aforesaid Puranas are at least of 4th and 5th Century CE vintage with the description of the Shiva Temple and Gyanvapi. The term Gyanvapi is comprised of two Sanskrit words which means the well or pond of knowledge. Thus even if we overlook the virtues and historic-mythological legends associated with the Jyotirlinga and Gyanvapi, the illustrated accounts reasonably well establish that an ancient Shiva Temple existed at the site even before the advent of Islam in the seventh century CE.

Since the Islamic invasion of the Indian sub-continent started with some of them staying back to establish rule in the conquered territories, the history is full of persecution and oppression of Hindus and people of other indigenous religions such as Buddhists and Jains; and the destruction and demolition of the temples and other religious places became a standard tool of the Islamic agenda. Consequently, the history of the Kashi-Vishwanath Temple too revolves around a sordid tale of repeated destruction and reconstruction of the original temple named as Vishweswara Temple. According to Hindu accounts and belief, the original temple was situated at the site where the Gyanvapi Mosque stands now. In every Shiva temple across the Indian sub-continent, the idol of Nandi is invariably found facing the direction towards the Shivalinga or Jyotirlinga, the Nandi in the Gyanvapi complex is no exception and the findings of the current survey appear to vindicate only the aforesaid position.

According to various historical accounts, Varanasi (then Kashi) was known as the city of temples with at least two thousand years of civilizational history. The original temple, located at the current site of the mosque, was destroyed by Qutb al-Din Aibak during 1193-94 CE following the defeat of Raja Jayachandra of Kannauj. He had destroyed hundreds of other temples too in an endeavour to strictly enforce ban on idol worship in the region. Subsequently, a Gujarati merchant is said to have reconstructed the temple during the rule of Iltutmish, another ruler of the Slave Dynasty, which was again demolished by Hussain Shah Sharqi of Jaunpur Sultanate during his reign (1458 – 1479). However, some accounts also suggest that this was Sikandar Lodhi who actually destroyed it during his reign (1489–1517).

During the Mughal Emperor Akbar‘s rule, one of his courtiers and finance minister, Raja Todarmal reconstructed the Kashi-Vishwanath Temple in 1585 CE at the request of his spiritual guru Narayana Bhatt, the head of Varanasi's most-famous Brahmin family. His contemporary Raja Man Singh is said to have constructed another grand temple named as the Bindumadhav Temple. The two magnificent temples represented the glory of Varanasi for the next several decades till Aurangzeb issued an order in 1669 for the demolition of all Kashi temples. According to to various records, Aurangzeb got constructed four Mosques in Kashi during his time, of which the present Gyanvapi Mosque was constructed in place of demolished Kashi-Vishwanath Temple while Dharhara Mosque was built in place of the Bindumadhav Temple. James Princep, an English scholar and orientalist, had sketched the Gyanvapi Mosque during early eighteenth century suggesting that the original wall of the demolished Vishveshwur Temple was still part of this mosque.

After Aurangzeb’s death, Hindu rulers again started making efforts to reconstruct the Kashi-Vishwanath Temple. In fact, the ruler of Amber Raja Bishan Singh is said to have made a survey and attempts to purchase land around the Gyanvapi precincts even before his death with a view to rebuild the temple but his efforts did not materialize. By early eighteenth century, Varanasi had fallen under effective control of the Nawabs of Awadh (Lucknow) holding suzerainty with the Mughal emperors and the East India Company had started expanding its reach and control; hence the attempts of Sawai Jai Singh II, Nana Fadnavis and Malhar Rao Holkar to demolish the Gyanvapi Mosque and reconstruct Kashi-Vishwanath Temple at the site did not succeed. After the East India Company established its direct control over Varanasi towards the late eighteenth century ousting the Lucknow Nawab, Queen Ahilyabai Holkar (Malhar Rao’s successor and daughter-in-law) constructed the present Kashi-Vishwanath Temple, which is located immediate south of the alleged mosque. All along there has been a popular belief that the original Shivalinga was hidden by the priests inside the Gyanvapi during Aurangzeb’s raid.

During the British Raj, the Gyanvapi complex had remained a site of fierce contestation between the Hindus and Muslims over the worship rights and first significant communal riot was recorded in 1809 CE under the East India Company rule. The first legal dispute arose in 1854, when Hindus’ plea of the installation of new idol in the complex was rejected by the local court but a similar dispute was settled in their favour in 1858. In 1885, Hindus plea of installing a lantern and permanent staircase within the precincts was rejected while an application by two Muslims to open a shop at the complex-perimeter was also denied. In fact, there were numerous such disputes which the local court had to intervene and decide in either way. Edwin Greaves, an English Conservative politician and Banker, observed in 1909 that the mosque was "not greatly used" and was an eyesore to the Hindus while the bull statue (idol of Nandi) was highly venerated and freely worshiped. There were a couple of small temples close by dedicated to Gauri Shankar (Shiva and Parvati), and other Hindu deities, and Gyanvapi (the well) commanded significant respect of pilgrims too. In January 1935, the mosque committee unsuccessfully demanded before the District Magistrate that Muslims be allowed to offer prayers anywhere in the complex.

In December 1935, a Muslims mob attacked the Police after being prevented from offering prayers outside of the mosque proper. This followed a law suit urging the entire complex be declared as an integral part of the mosque and a waqf property, which was rejected by the lower Court in August 1937 and the same decision was upheld by the Allahabad High Court in 1941. Although there are ample documentary and material records including Aurangzeb’s order for the demolition of Kashi temples, the Muslim side has all along rejected the fact of Aurangzeb demolishing the temple for the religious zealotry. In fact, members of the mosque management committee even maintain that the Kash-Vishwanath Temple and Gyanvapi were constructed by Akbar in his true spirit of religious tolerance. Needless to mention, all such averments are without evidentiary values.

In independent India, the aforesaid dispute about the determination of the nature of alleged Gyanvapi Mosque is dated back to 1991 when petition was filed in the Varanasi court with the local priests seeking permission to worship in the Gyanvapi complex. One of the petitioners, Vijay Shankar Rastogi in his plea cited himself as the “next friend” of the Kashi-Vishwanath Temple’s presiding deity. In legal jargon, the next friend is one who represents someone unable to represent in person in court. Petition argued the temple originally built by Maharaja Vikramaditya had undergone many destructions and reconstructions and a mosque was last erected by Aurangzeb by demolishing the temple. The relief sought by the petitioners was that the Gyanvapi mosque be removed and Hindus be granted ownership of the entire plot of land with their right to worship. It was further argued by plaintiffs that because the mosque was erected upon a ruined temple, the Places of Worship Act, 1991 did not apply in this case. The legal case has taken several dramatic turns in the lower and higher courts ever since, which is briefly summarized in the beginning.

The Place of Worship (Special Provisions) Act, 1991

During 1991, Mr Narsimha Rao led Congress government was in power at Centre and Ram Janmbhumi – Babri Mosque dispute had led to several communal riots in the Indian states such as Uttar Pradesh, Gujarat, Karnataka and Andhra Pradesh. Apparently, to quell or rule out more such disputes in future, the Rao government enacted a law addressing the issues of the ownership and nature of any place of worship in the country. The then Home Minister SB Chavan had stated in the Parliament that the law under consideration will effectively tackle and stop any new controversies involving two or more communities in the context of conversion of any place of worship. The cut of date for determination of the nature, character or ownership of the religious places was set as the 15th August 1947, the date of Indian independence from the British rule.

Accordingly, the Places of Worship Act, 1991 provided that the character of any religious place cannot be altered from what it was on the aforesaid date. To illustrate the point in the normal or laymen’s understanding, if a building or structure was used as a mosque as on 15 August 1947, the same cannot be turned into a temple, church or gurdwara on a later date. In view of the fact that thousands of temples were earlier destroyed and mosques erected at the same place in many cases by the Islamic invaders and rulers, the Bill had met strong opposition from the nationalist Bhartiya Janta Party (BJP) in the Parliament during the debate but the Congress party and Rao government prevailed upon such opposition due to their numbers in both the houses of Parliament. People opposing this legislation in the Parliament and outside were more vocal and firm about three religious places, namely Ram Janmbhumi, Krishna Janmbhumi and Kashi-Vishwanath Temple, which are strongly and intimately associated with the Hindu belief and faith.

Among other things, the Section 4(2) of the aforesaid Act provides “…on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority: Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August,1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1.”

The Kashi-Vishwanath Temple – Gyanvapi Mosque dispute itself has a long history of legal battle since nineteenth century and with numerous documentary records and physical evidences still available despite lapse of almost four centuries of its demolition by Aurangzeb and construction of a mosque at the same site by even reusing temple material with the same Hindu name. Both common men and experts believe this was deliberately done to remind Hindus of future generations of their humiliation and Islamic glory and power. In fact, a firebrand Hindu leader Uma Bharti is on record to state/question in Parliament, “Was not the intention of Aurangzeb behind leaving remnants of the temple at the site of mosque, to keep reminding Hindus of their historical fate and to remind coming generations of Muslims of their past glory and power?”

Gyanvapi: Opinion, Claims and Counter Claims

Against the Hindu side claim of the finding of the Shivalinga in the abulation pond, the Mosque committee and the most vocal and self-proclaimed leader of Muslims, Mr Asaddudin Owasi has argued that the said structure is actually a fountain that existed since the construction of the Mosque and such fountains found in many mosques. This contention of the Anjuman Intejamia Masjid has been repeatedly countered by the lawyer Harishankar Jain and Hindu priests saying if it is a fountain, the mosque committee should not raise objection to its extended survey to reveal truth. Besides, if it is fountain instead of Shivalinga, it should have a connected water supply line commensurate with technology used 350 years back for such purpose.

The opposition political parties such as the Congress Party, Samajwadi Party, All India Majlis-E-Ittehadul Muslimeen (AIMIM) have criticized the ruling Bhartiya Janta Party and the government for deliberately fanning the communal issue to divert the attention of people from its failure on various fronts including inflation, employment, rising fuel prices, and so on. The fact is the litigation on Kashi Vishwanath Temple – Gyanvapi Mosque is over three decades old in the current spell and it appears to be just a chance that the issue has hot up now because of the judiciary’s fresh order to have a survey of the Gyanvapi complex to determine the truth of Hindus’ claim. As the central government has so far avoided any indulgence or statement on the dispute, the All India Muslim Personal Law Board has even gone to the extent of terming it criminal on the government’s part.

Many of the English newspapers in India are traditionally leftist or left-leaning in their approach and do not support Hindu zeal of reclaiming their faith and belief. For instance, in their editorial piece, the particular national daily with the highest circulation in the country, has cited the recent order of the Supreme Court as pacifist wherein while the court has allowed Muslims to offer Namaz in the premises, it has also passed an order to protect the area where Shivalinga has been found. In the corollary, the editorial raises the question of upholding the Places of Worship Act and then itself provides its answer too in “affirmative”. On the other hand, Vernacular media and press appears to be more open and willing to interpret laws along with the sensitivities of the religious faith and belief based on truth and ground realities.

A narrative has also increasingly emerged that the legal case against the tinkering with the nature and character of the Gyanvapi mosque is plain and intelligible but actually it is more of a compulsion and strategy of the present day Indian politics. In support of the aforesaid averment, they also quote Hindutva, laws against love jihad and cow slaughter in some of the states and traditional Hindu grievances of Muslim appeasement. The obvious pointer by raising these issues is that the BJP is behind this trouble to derive political mileage for its own advantage. On the other hand, many pragmatists opine that the problems left behind by the history cannot be brushed aside or kept under the carpet. According to them, while many other claims and controversies could be set aside under law but the two religious disputes at Varanasi and Mathura, which unfortunately have well-documented and well-established history of deliberate erection of a mosque and Idgah, respectively, during Aurangzeb’s reign by damaging/demolishing temples, cannot be left unattended till eternity.

End Note

While it is true that scratching the old wounds invariably leads to extended bleeding and pain, it is also a fact that the entire cultural and religious history of a civilization cannot be permanently blanketed or brushed aside for this very fear. If our so-called secularist historians in post-independence era were not biased then they definitely believed that the air-brushing the records of bigoted rulers in history books will achieve better communal peace and harmony. This notion of the said Indian seculars was vindicated again more recently when they tried to dub and shun a reality film on ethnically cleansed Kashmiri Pandits as communal. Similarly, they had tried to dismiss some Indian historical texts as mere fiction in the context of Ram Janmbjumi case in Supreme Court few years back. The Mughals and other Islamic invaders came from foreign land and neither it is true nor shall be accepted that they were ancestors of the present genre of Indian Muslims, who have nothing to do with the past excesses of the bigoted rulers. Possibly, a truthful creation and depiction of history putting all facts in correct perspective would have yielded better result for the communal harmony and peace. Even now, it is not too late to work for the course correction of the historical blunders because the policy of appeasement of the earlier governments and intellectuals at the cost of the majority Indian population after independence has created more division and conflict than harmony and reconciliation among the communities.

Parliamentary laws are neither infallible nor fair all the time; after all, the political parties now trying to fan communal sentiments of people by citing the particular legislation of 1991 on the Places of Worship to suppress Hindu belief and sentiments while simultaneously blaming the ruling BJP government for the recent developments at Varanasi, represents the same eco system and legacy, which misused their massive mandate in Parliament in 1986 under the pressure of orthodox Muslim clergy and politicians to deny alimony to Shah Bano earlier granted by the Supreme Court after a protracted litigation. It’s obvious that merely passing a law cannot resolve or bury any dispute between the communities. Moreover, laws made by the Parliament are not sacrosanct because they can be reviewed by the Supreme Court to determine its constitutionality and they can be also repealed by the same Parliament which enacted it earlier. Even courts are prone to mistakes but they still offer ultimate hope to people looking for justice. Therefore, in Gyanvapi case, the Supreme Court must follow a balanced and pragmatic approach to determine the truth. Alternatively, the present central government should review 1991 legislation and repeal if finds it lopsided and inadequate to address historical errors and blunders. Commensurate with the Ram Janmbhumi case, the correct course in the remaining two disputes at Varanasi and Mathura would be to restore the sites to Hindus and give alternative piece of land to Muslims in lieu.

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22-May-2022
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