Varanasi Judge Last Gyanvapi Order on Same Lines as That of Babri Mosque Case?

New Delhi: It was the last working day of Ajaya Krishna Vishvesha as the district judge of Varanasi. The Banaras as well as the central bar associations were readying to bid him farewell. Minutes before the event, at around 3 PM on January 31, he passed the last order of his career — allowing Hindus to worship in the southern cellar of the disputed Gyanvapi mosque.

A direction was issued to the district magistrate to make arrangements for raag-bhoj (a religious ritual) and pooja (worship) of the idols in the tehkhana of the late 16th century mosque by a priest appointed by the Kashi Vishwanath temple trust.

As soon as the parting shot came, Varanasi District Magistrate S. Rajalingam swung into action and ordered a seven-by-seven feet passage to be created in the mosque’s double-layered barricading — which was erected during the late Mulayam Singh government in 1993. The directive granted access to the southern cellar for priests.

Without wasting time, the designated priest prepared the basement site — known as Vyas Ji Ka Tehkhana — beneath the mosque and performed prayers the next day at 3 pm. The development — over a week after the Ram temple Pran Pratishtha (consecration) — has potentially shaped the future politics of communally-sensitive Uttar Pradesh.

The Case at a Glance

The dispute, which is also described as the next Ayodhya, was transferred to Vishvesha’s court from a court of civil judge (senior division) in May 2022 by the Supreme Court. The Hindu devotees sought the right to worship Goddess Shringar Gauri, Goddess Ganga, Lord Hanuman, Lord Ganesh along with Lord Adi Visheshwar and his bull carrier Nandi within the area of Settlement Plot No. 9130 — measuring about one bigha, nine biswa and six dhurs (roughly 0.89 acre) situated at Dashashwamedh in the city of Varanasi. 

The Gyanvapi is more political than a religious battle. The Vishwa Hindu Parishad (VHP) and the other Hindu nationalist outfits have been engaged in a nation-wide campaign since 1984 — demanding reclaiming of temples that were allegedly destroyed by Muslim emperors. After independence, the first lawsuit (a title dispute) was filed in 1991 in the Varanasi Civil Court on behalf of Hindu deities — Ganesha, Shringar Gauri and Shiva. 

The petitioners such as Somnath Vyas aka Vyasji demanded that the entire site (Gyanvapi mosque complex) be handed over to the Hindu community to facilitate the reconstruction of the temple.

They also argued that the Places of Worship (Special Provisions) Act, 1991 did not apply in this case as the mosque was built by partly demolishing the Adi Visheshwar temple.

The 1991 legislation says that a mosque, temple, church or any place of public worship in existence on August 15, 1947, will retain the same religious character that it had on that day — irrespective of its history — and cannot be changed by the courts or the government.

Fresh cases pertaining to title ownership were filed over the past few years. The legal battle was renewed after five Hindu women in August 2021 pleaded in the court, seeking worship throughout the year at the western wall of the Gyanvapi compound that is outside the barricaded area of the mosque. This was a larger push to change the status quo at the Gyanvapi mosque.

Hearing the matter, the civil judge (senior division) appointed a team of court commissioners to inspect the premises. The team conducted a videographic survey in May 2022.

Following the survey, the petitioners claimed that a cylindrical structure was found inside the mosque and that it was a Shivling. However, the Anjuman Intezamia Masajid, a committee managing the mosque, insisted that it was a fountain.

After the Gyanvapi-related petitions were transferred to the district judge court, Vishvesha’s first order came in June 2022. He rejected the petition filed by Jyotish Peeth Shankaracharya Swami Avimukteshwaranand who had sought permission to worship the alleged Shivling found inside the mosque ‘wuzu khana’ (the place designated for ablution).

He also rejected another petition filed by Hindu plaintiffs, seeking a scientific investigation of the mosque, in October 2022.

His significant order came in May 2023 when he ordered consolidation of all seven suits related to the Adi Visheshwar temple that were pending in two different local courts in the city. 

In addition, the Shringar Gauri case, which was already being considered by his court, was designated as the leading case among the eight matters.

In October 2023, he transferred the ninth suit — which was filed in September in the court of the civil judge (senior division) by Vyasji’s grandson Shailendra Kumar Pathak — and consolidated it with the existing eight cases.

This was the petition that led to the latest order of resumption of prayers after 30 years in the southern cellar of the mosque premises. The cellar was closed by the then state government in December 1993, following the violence witnessed across Uttar Pradesh after the demolition of Babri Masjid.

Pathak claimed himself to be of descent from the erstwhile Kashi Vishwanath temple.

Judge Vishvesha passed another significant order in July last year — directing a survey by the Archaeological Survey of India (ASI) of the mosque premises, excluding the ‘wuzu khana’ that houses the disputed structure which is described as Shivling.

After beginning its survey in August, 2023, the ASI finally submitted its report on December 18. It claimed to have found evidence, suggesting that a “large Hindu temple” once stood on the Gyanvapi mosque site.

A copy of the report was handed over to both the plaintiffs and the respondents. The petitioners made the report public two days after it was handed over to them. The district judge’s order, allowing worship in the tehkhana, came two days after the report was made public.

Gyanvapi Case to Meet Same Fate as Babri Mosque

Reacting sharply to the Varanasi court order, many are equating the Gyanvapi case to the Babri Masjid-Ramjanmbhoomi title dispute.

They claimed the order has failed the purpose of the Places of Worship Act.

“The order has negated the Supreme Court judgment in the Babri Masjid case where it had taken note, in no uncertain terms, of attempts to change the character of places of worship,” Syed Qasim Rasool Ilyas, spokesperson of the All India Muslim Personal Law Board (AIMPLB), told The Mooknayak. 

The top court had said in preserving the character of places of public worship, the Parliament has mandated that history and its wrongs shall not be used as instruments to oppress the present and the future.

He said the case may meet the same fate as the Babri mosque.He said the case is going on the same path as that of the Babri Masjid dispute wherein the right to worship was first sought on the Ram Chabutra outside the iron grill of the mosque and later the petitioners staked a claim on the entire mosque.Lawyers representing the Anjuman Intezamia Masajid described the order of the district judge as a “travesty of justice”. 

“The order was passed on the evening of January 31 and complied with by the district magistrate in the middle of night. Hours after the order, a window of the cellar was opened for the devotees. We mentioned the matter for urgent hearing in the Supreme Court, which rejected our plea and asked us to approach the Allahabad High Court. The latter too refused to grant us any relief, declining to stay the district judge’s order,” said Fuzail Ahmad Ayyubi, the Advocate on Record for the mosque committee who moved the application before the apex court — seeking its intervention.

The High Court on February 2 asked the mosque panel to amend its pleas to include a challenge to the trial court’s order, which effectively means the prayers will continue as of now.

He said despite the fact that the order passed by the trial court had already given him one week to make the necessary arrangements, there was no reason for the district magistrate to undertake the action in hot haste in the dead of the night. 

“This shows that the administration is in collusion with the plaintiffs and is trying to foreclose any attempt by the mosque managing committee to avail of their remedies against the said order by presenting them with a fait accompli,” he told The Mooknayak. 

The January 17 district judge order had led to the appointment of the Varanasi district magistrate as the receiver of the southern cellar.

When Shailendra Pathak had filed his petition, the mosque’s managing committee had challenged its maintainability under Order VII Rule 11 of the CrPC - which empowers the court to dismiss a suit at the threshold if it is satisfied that the petition is barred by any legislation.

The application is pending in the trial court for nearly a year. “Rather than hearing our application and deciding maintainability of the application first, the judge preferred to order that pooja be started,” said Advocate Rayees Ahmad Ansari of the panel of lawyers representing the mosque’s managing committee.

Syed Mohammad Yaseen, who heads the mosque panel, too alleged the Kashi Vishwanath-Gyanvapi case mirrors events in the Ayodhya dispute.

“The law has been torn to shreds. The case is moving along the same lines as that of the Ayodhya dispute. Just as the locks of the Babri masjid were allowed to be opened in 1986, this order (allowing pooja in the cellar) has come,” he said. He said the managing committee should be given a fair chance to prove that the structure inside the ‘wuzu khana’ is a “fountain”, and not a Shivling.      

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