SC halts ASI survey, directs HC to hear Gyanvapi plea by Wednesday 5 pm

In a relief to the Gyanvapi management committee, the Supreme Court on Monday halted till 5 pm of July 26 a "detailed scientific survey" by the ASI to determine if the mosque located next to the Kashi Vishwanath temple in Varanasi was built upon a temple, saying "some breathing time" needed to be granted to appeal a district court order.

A Varanasi court had on Friday directed the Archaeological Survey of India (ASI) to conduct the survey, including excavations, wherever necessary, to determine if the mosque was built at a place where a temple existed earlier.

Taking up the plea moved by the committee of management Anjuman Intezamia of the Gyanvapi mosque for an urgent hearing, the top court directed the Allahabad high court to hear the appeal before its "status quo" order expires on Wednesday evening.

The apex court's order came at a time when a 30-member team of the ASI was inside the mosque complex to carry out the survey. The survey was immediately stopped after the apex court order.

”Having regard to the fact that the order of the district court was pronounced at 4.30 pm on 21 July 2023 and the survey is in the process of being carried out today, we are of the view that some ’breathing time' must be granted to the petitioners to move the high court for pursuing their remedies.

"We direct that the impugned order of the district court shall not be enforced until 5 pm on 26 July 2023. This shall not be construed as the expression of opinion on the merits,” the bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra ordered.

The top court said the mosque committee was at liberty to move the high court against the order of the district judge, Varanasi.

”In the meantime, should the petitioners move the high court with a petition/application under Article 227 of the Constitution or appropriate proceedings as are maintainable under Section 115 of the Code of Civil Procedure, the registrar (judicial) of the high court shall ensure that it is placed before the appropriate court according to the roster so that it can be heard before the order of status quo, which has been granted by this court today, comes to an end,” the bench said while disposing of the plea of the mosque committee. 

The bench directed Solicitor General Tushar Mehta, who appeared in the court on behalf of the Uttar Pradesh government, to immediately convey the order to the ASI officials working at the site.

At the outset of the day's proceedings, the plea was mentioned by senior advocate Huzefa Ahmadi, who was representing the mosque committee, for an immediate stay of the ASI work, saying that the task has been undertaken in a "tearing hurry", without affording the time to the aggrieved party to file an appeal.

The bench, which initially suggested that the mosque panel should move the high court, subsequently decided to take up the petition for hearing during the day and sought information from the solicitor general about the status of work being carried out by the ASI.

The apex court also clarified that no excavation will be conducted on the premises.

The law officer took instructions and informed the bench that the ASI is conducting photography and radar-imaging at the site and currently no invasive or excavation work is underway.

”I have taken instructions. As opposed to what my friend (counsel for the mosque committee) says that some wall is broken, my specific instructions are that not a brick is removed, nor contemplated to be removed at least for one week, if at all,” the solicitor general said.

What is going on right now is the measurement, photography, radar imaging etc which will not change the structure. They can approach the high court within two days, three days, four days, he said.

”Then we can record your (law officer) statement and give them liberty to move the high court,” the CJI said.

”On contacting the Archaeological Survey of India (ASI), Mr Tushar Mehta, Solicitor General informed the court that the apprehensions of the petitioners may be allayed at this stage since at least for a period of a week, there would be no effort to carry out any excavation at site. Moreover, it has been submitted that only measurements, photography and radar imaging would be carried out at the site,” the bench noted in its order. 

It recorded the statement of the law officer and said a statement had been made on behalf of the ASI ”specifically to the effect that no excavation at the site is contemplated at this stage until 31 July 2023”. 

Ahmadi, on the other hand, vehemently sought the stay of the district court's order for a week.

”Mr Ahmadi, suppose they carry out some measurement and they take some photographs, it does not disturb the structure, it does not disturb the worship by your clients which we had permitted on the last occasion,” the bench said.

The bench said it has ensured there is no excavation at the site.

The mosque's wazookhana (a small reservoir for Muslim devotees to perform ritual ablutions before offering namaaz), where a structure claimed by the Hindu litigants to be a Shivling exists, will not be a part of the survey, following an earlier Supreme Court order protecting that spot in the complex.

The mosque management maintains that the structure is part of the water fountain mechanism at the wazookhana.

District judge A K Vishvesh had on Friday directed the ASI to submit a report to the court by August 4 with video clips and photographs of the survey proceedings.

During the arguments, Ahmadi told the apex court an order was passed directing the ASI survey of the entire area, "which, as per us, is in teeth of the Supreme Court order".

"Why don't you withdraw this and move the Allahabad high court?" the bench asked Ahmadi.

The senior lawyer said the ASI has started the survey, disregarding the mosque panel's request that the work be stopped for some time as the apex court is seized of the matter. Referring to the district court's order, Ahmadi said they will excavate the site as the ASI has been directed to conduct a ground penetrating radar (GPR) survey and other scientific assessments.

"On the last date of the hearing, it was the question of carbon-dating of the Shivling and I had said that it would be an invasive method. This is a non-invasive method of conducting the survey," the solicitor general said.

The court then suggested passing an order, saying let there be no excavation work at the site for a week and the mosque committee can go to the high court in the meantime.

It was argued by the mosque committee before the district court that the Kashi Vishwanath-Gyanvapi mosque case was not maintainable as it violated the Places of Worship (Special Provisions) Act, 1991.

That law rules out changing the character of any place of worship from what it was on August 15, 1947. The Act, however, made an exemption for the Ram Janmabhoomi-Babri Masjid legal dispute.