Will CJI undo his Gyanvapi mistake?

Will Chief Justice of India D Y Chandrachud reverse his ascertainment theory, even though it was an observation not recorded in the apex court’s 2022 order? File pic

Chief Justice of India D Y Chandrachud's concerns for same-sex marriage and the conflict in Manipur are in contrast to the position he took, last year, on the Gyanvapi mosque dispute in Varanasi. His position has not only escalated the dispute, but has also given a handle to the Hindu Right for polarising India before the 2024 Lok Sabha elections.

But first, a background: In April 2021, five women petitioned a civil court in Varanasi that they be allowed to worship "visible and invisible deities" on the Gyanvapi mosque campus, which was allegedly built, in the 17th century, after demolishing the Vishwanath temple there. In May 2022, the civil court had the Gyanvapi mosque surveyed by an advocate commissioner, who ostensibly found a Shivling in the wazu khana, or pond, Muslims used for ablutions.

Although Muslims insisted the Shivling was merely a fountain, an application was filed in the civil court for denying them access to the wazu khana. The Anjuman Intezamia Masjid Committee, responsible for the upkeep of the Gyanvapi, moved the Supreme Court, claiming the civil court's proceedings were in violation of the Places of Worship Act, 1991, which disallows a change in the religious character of a place of worship as it existed on August 15, 1947. Since no relief could be granted to the five women, their plea should be rejected, the Committee contended. The Supreme Court, however, asked the district court, Varanasi, to decide on the maintainability of the women's suit.

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More pertinently, Chandrachud made an observation that the Act does not debar the ascertainment of the character of a place of worship; it prohibits only a change in its character. Other than historians and archaeologists - the five women are neither - people are keen to know the religious identity of a place only for the purpose of worship. The five women's palpable intent is to turn the Gyanvapi mosque into a temple.

Chandrachud's interpretation of the Act undermines the 2019 Supreme Court judgment in the Ayodhya suit. The Supreme Court had then said, "In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future." Chandrachud was a party to the unanimous judgment in the Ayodhya case.

Chandrachud's ascertainment theory provoked B G Kolse Patil, a former Bombay High Court judge, to tell me, in an interview I conducted for NewsClick last year, that the Chief Justice of India was in contempt of his own judgment in the Ayodhya case, and that the Gyanvapi dispute had been "transferred to the people's court… The Supreme Court order has indirectly incited the feelings of
the people."

"History and its wrongs" have already been deployed to imperil India's social harmony. Consider this: The Varanasi district court, to which the Supreme Court had transferred the Gyanvapi case, ruled that the suit was maintainable. The Intezamia Committee went in appeal to the Allahabad High Court, which reserved its judgment in December 2022.

Yet the same high court upheld, last week, an appeal of the Hindu petitioners against the district court's rejection of their earlier plea for conducting a scientific study of the Gyanvapi, including carbon dating the Shivling. This court order, let us face it, conforms to Chandrachud's ascertainment theory. However, a three-member bench of the Supreme Court, led by Chandrachud, stayed, on May 19, the Allahabad High Court order for conducting the scientific study of the Gyanvapi precinct. This is certainly a relief for Muslims.

But, alas, it also postpones the judicial determination of whether the Gyanvapi mosque is a temple closer to the 2024 elections. Will Chandrachud reverse his ascertainment theory, even though it was an observation not recorded in the Supreme Court's 2022 order and is, therefore, not a binding judgment? Legal websites and news channels made his observation seem as law, and binding, ballooning the Hindutva brigade's hopes.

The Supreme Court's deepening of the Gyanvapi dispute was the reason Kolse Patil said, "On the very first day…the Supreme Court should have said, The Places of Worship Act is there, so stop this nonsense [about the Gyanvapi.]" The nonsense is gradually becoming people's sense, an example of which was the Times Now Channel flashing the model of the Vishwanath temple allegedly
destroyed by Aurangzeb.

When the idol of Ram Lalla was surreptitiously installed in the Babri Masjid, in December 1949, it was claimed that Lord Ram had manifested himself, spawning the popular slogan "Babaji mil gaye," as Nilanjan Mukhopadhyay wrote in The Demolition and the Verdict: Ayodhya and the Project to Reconfigure India. Reviewing Mukhopadhyay's book, senior Supreme Court advocate Sanjay Hegde wrote, "Substitute the slogan Babaji mil gaye… [with] the claim that a Shivling was found within the Varanasi Mosque, the modus operandi for Kashi remains the same as that for 70 years ago."

As in Ayodhya, so in Varanasi now, the judiciary has legitimised the Hindu Right's attempts to appropriate places of worship belonging to Muslims. Hopefully, Chandrachud's legal acumen can pull India out of this politico-religious cesspool, and undo the mistake he presumably did not know he was committing.

The writer is a senior journalist.
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