A survey to determine if Gyanvapi Mosque, located next to the famous Kashi Vishwanath shrine, was built on the ruins of an older temple, was stayed by the Allahabad High Court on Thursday. The project by the Archaeological Survey of India (ASI) was ordered by a Varanasi court in April this year.
A single-judge High Court bench of Justice Prakash Padia made some strong observations about the lower court order, staying all proceedings related to the matter there.
The Varanasi court had asked ASI to carry out a physical survey of the Gyanvapi Mosque based on a 2019 plea by a city lawyer. This plea was appended to a 1991 case, in which a bunch of city residents had contended that Mughal emperor Aurangzeb had demolished an ancient Lord Vishweshwar temple and "constructed a mosque with the help of the ruins of the said temple".
Challenges to the 1991 case had eventually reached the High Court, which, in March this year, reserved its order on the matter. However, the proceedings in the Varanasi court had not been stopped
"The court below has full knowledge to the fact that judgment has already been reserved on 15.03.2021. In this view...(it) should not have proceeded and decided on the application filed by the plaintiffs in the original suit for a survey by Archaeological Survey of India," the Allahabad High Court said.
"Judicial courtesy and decorum warranted such discipline, which was expected from the court below. But for unfathomable reasons, neither of the courses was taken," Justice Padia said.
The judge regretted that the lower court had departed from this "traditional way".
"I have said so with the fond hope that judicial enthusiasm should not obliterate the profound responsibility that is expected from the court below," he said.
In April, the Varanasi court ordered the constitution of "a five-member committee of eminent persons who are experts and well-versed in the science of archaeology, two out of which should preferably belong to the minority community".
"The prime purpose of the archaeological survey shall be to find out whether the religious structure standing at present at the 'disputed site' is a superimposition, alteration or addition or there is a structural overlapping of any kind, with or over, any other religious structure," it said.
Days after that ruling, the Waqf Board and the Gyanvapi Mosque Trust approached the Allahabad High Court challenging the order.
"Our understanding is clear that this case is barred by the Places of Worship (Special Provisions) Act, 1991. The Places of Worship Act was upheld by a five-judge Constitution Bench of the Supreme Court in the Ayodhya judgment," according to Waqf Board chairman Zufar Ahmad Farooqui.
"The status of Gyanvapi Masjid is, as such, beyond question," he had said, adding that the Varanasi court order was questionable in itself.
Technical evidence can only supplement certain foundational facts, according to Mr Farooqui.
"No evidence has been produced before the court that suggests that there was a prior existing temple at the site of the mosque," he said.