Tuesday, Dec 06, 2022

Gyanvapi To Hubballi: Can Places Of Worship Act Stand The Test Of Communal One-upmanship?

Domino Effect

Gyanvapi To Hubballi: Can Places Of Worship Act Stand The Test Of Communal One-upmanship?

Instead of quashing petitions that violate the Places of Worship Act, the past few years have seen courts and judges allowing those against mosques to fester

Tense situation: Muslims leave Gyanvapi mosque after prayers amid tight security Photo: Tribhuvan Tiwari

The fluorescent glow of an LED lamp was­­hes over the little room tucked inside the pre­m­ises of the Abu Hanifa mosque in Varanasi. Here, Mufti Abdul Batin Nomani spe­nds his evenings looking at books and paperw­ork, while discussing theology with patrons and locals. A man of few words, Nomani does not believe human laws can be used to decide on divine matters. But since the resurgence of the Gyanvapi mosque-Shringar Gauri temple dispute between Hindus and Muslims earlier this year, legal matters are the cleric’s primary concern.

So when the Karnataka high court allowed Hin­du groups to celebrate Ganesh Chaturthi inside the disputed premises of the Hubballi-Dharwad Idgah maidan on August 30, Nomani watched the news with interest. And concern.

On September 12, a Varanasi distr­ict court upheld the maintainability of a plea by five Hindu women to pray inside the contested Gyanvapi complex. Nomani, head of the Anj­u­man Intezamia Mas­jid Committee, representing the Muslim side, says he could see the domino effect.

In May, a Varanasi court ordered a survey of the Gyanvapi pre­mises following petitions by five Hindu wom­en to pray inside it. The dispute gra­bbed national headli­nes with the “sensational discovery” of what the Hindu side claimed was a “Shivling” buried inside the wazo­okhana of the mosque. Hindus have also conte­n­ded that the mosque was built after demolishing a temple, justifying the demand for permiss­ion to pray within the mosque. While the masjid committee has moved the Supreme Court agai­nst the lower court’s order, Vishva Hindu Paris­had, whi­ch is supporting the Hindu side, tha­nked ‘Ma­h­adev’ and said the ‘first hurdle’ has been crossed.

Also Read | Qutab Minar To Taj Mahal: Controversial 'Temple' Claims That Made It To Court This Year

Soon after the Gyanvapi issue picked up steam, similar petitions were filed and old ones revived in Mathura, some 700 km away, where litigants claim the mosque had been constructed on part of a 13.37-acre plot owned by the Shri Krishna Jan­mabhoomi Trust. They have demanded that the mosque land be returned to the Trust.

Nomani has faith in India’s secular Constitu­t­ion. But the recent incidents in Karna­t­aka have left him on edge. While Mathura and Kashi have been an integral part of the Hindutva imaginat­ion, Nomani feels dangerous precedents are bei­ng set every day. In Varanasi itself, there are at least two petitions fil­ed in the court of civil judge Ravi Kishan Diwa­kar, seeking permission to worship the alleged “Shivling” found in the wazook­hana. The Gyan­v­api row has been followed by demands for the return of other mosque land to Hindus, such as the Meena mosque in Mathura.

Instead of quashing petitions that violate the Act, the past few years have seen courts and jud­ges allowing those against mosques to fester.

“All I keep thinking about is the Places of Wor­s­hip Act. What about that act? Does it have no mea­­­ning?” Nomani asks. The Places of Worship Act, 1991, was passed by Prime Minister P.V. Nar­­simha Rao’s governm­ent at the peak of the Ram Janmabhoomi movement. Section 3 of the act prohibits the conversion of any place of worship, whereas Section 4 manda­tes that the “relig­ious character of a place of worship” as it existed on August 15, 1947, shall remain the same. Ram Janmabhoomi was the only exception to the act.

Nomani, who remembers the turbulent 90s very well, states that the act was brought in to protect India’s del­icate communal balance follo­wing the contentious Rath Yatra culminating in the demolition of the Babri Masjid. “Even the Supreme Court, in its Ram Janmabhoomi verdict, reaffir­med the need to uphold the 1991 act,” the Mufti states.

Also Read | Will Gyanvapi Set Off Another Ayodhya In India?

Instead of quashing or dismissing petitions that violate the act, howe­ver, the past few years have seen a growing number of courts and jud­ges allowing such petitions against mosques and other religious places to fester. This year has seen a number of hearings in three contentious property disputes, namely Gya­­nv­a­pi-Shr­i­ngar Gauri, Shri Krishna Janma­b­h­o­omi-Shahi Idgah and Hub­b­alli­-­Dharwad Idgah mai­dan. Though each conflict traces its roo­ts back several decades, they have remained outside the limelight throughout most of India’s post-independence history, dwa­r­fed by the Ram Janmabhoomi movement.

Now that the Ayodhya dispute has been settled in favour of the Hindus, the spotlight is back on the Places of Worship Act. And the act is far from being watertight.

A legal quagmire

Sub-sections 4(1) and 4(2) of the act are intended to maintain the religious character of a place of worship and prohibit its conversion from what it was on August 15, 1947, and also nullify all such petitions, with the purported reason to prevent communal tensions and majoritarian politics.

In May this year, however, the Sup­r­­eme Court observed that the proc­ess to ascertain the religi­ous cha­r­acter of a place is not barred under the act. It purely prohi­bits the conversion of the religious character.

Advocate J. Sai Deepak points out that contradictions existed in Section 4(3) of the act. Sai, who represented Lord Ayyappa in the Sabarimala case, tells Outlook that the act served to cancel itself, and was more a political strategy than a legal solution.

Ganga-Jamuni tehzeeb (Left) Prof Vishwambar Nath Mishra of IIT-BHU, mahant of Sankat Mochan temple;
Ganga-Jamuni tehzeeb (Left) Prof Vishwambar Nath Mishra of IIT-BHU, mahant of Sankat Mochan temple; and Mufti Abdul Batin Nomani of Abu Hanifa mosque and head of Anjuman Intezamia Masjid Committee

Sub-section (3) notes that “nothing contained in sub-section (1) and sub-­section (2) shall apply to”—and nam­es five exceptions, like when a pla­ce has been proved to be a historical or archaeological site. “The interesting thing is that while sub-section (3) cancels out sub-secti­ons (1) and (2) that enforce the status quo, nothing cancels out sub-section (3). So the exceptions remain, even if the status quo is ruled out,” Deepak says.

Also Read | Ascertaining Of Religious Character Of Place Of Worship Not Barred Under 1991 Law: SC

He explains that under sub-section (3), for instance, anyone is allowed to prove that a place of worship is actually a historical monument, in which case the status quo stops applying. Additionally, determination of the religious character of a pla­ce is allo­wed, which means, “One can keep on pro­ving that a mosque was indeed a temple”.  But what happens once we have determined the cha­r­acter and it does not match the character of the pla­ce held in 1947? Do we convert its character, or let it be? The act does not clearly say anything. In the case of Gyanvapi, the petitioners are focused on proving the existe­nce of a Hindu temple. But what happens if it is proved that there was a temple where the mos­que now stands?

‘The courts allowing surveys of mosques are not really wrong. The act is either a poorly thought-out legal solution or a very clever political move.’ J. Sai Deepak, Advocate

Deepak points out that instead of being a legal and secular solution to Hindu-Mus­lim property disputes in the religious sphere, the act creates further confusion and leaves vast room for interpretation. “The courts that are permitting pleas for surveys of mosques to look for remains of Hin­du temples are not really wrong. The act all­ows it,” he says. “The act is either a very poorly thought-out legal solution or a very clever political move,” Deepak tells Outlook. In the end, he adds, the decision about whether the act is applicable to a place of worship, depends on the interpretation of its various sections and sub-sections.

He also adds that the exception of Ram Janma­bh­oomi dispute from the act, reflects that it resp­o­nds more to the political climate of its time than to legal questions on matters of religious constr­uction, belief and conversion. “Why only Ram Jan­mabhoomi and not Krishna’s birthplace?”

Disillusioned in the land of light

In Varanasi, the legal battle has led to myriad nar­ratives. Some claim the temple that was dem­olished, was dedicated to Adi Vishwesh­w­ara and the well inside Gyanvapi—litera­lly ‘the well of wisdom’—was created by Lord Shiva himself.

According to Hindu seer Rajeshwaranand Sar­a­swati—a regular outside the Varanasi cou­r­t­ whe­re the case is being heard—the temple was built by Ahilyabai Holkar, who placed a Shivling there.

The family of mahants that takes care of the Vis­hwanath temple claim the temple on whose ruins the Gyanvapi mosque was built, had origin­ally belonged to their family. While differing on political ideology, both current chief priests of the Vishwanath temple—Mahant Kulpati Tripa­thi and his estranged kin and former mahant, Raj­inder Tripathi—agree their family had saved the shrine’s main Shivling and kept it hidden for decades, until the end of “Mughal oppression”.

Muslims claim the land on which the mosque was built was bequeathed to them via a farman by Mughal Emperor Aurangzeb, under whose rule the existing temple had been demolished.

Amid the confusion, many in Kashi who have seen the city shift with the turn of the tide, expr­ess anguish at the way things are going. “This is not the city I knew,” IIT-BHU professor and the mahant of Sankat Moc­han temple, Vishwambar Nath Mishra, hells Outlook. “Kashi is a system, a place of spirituality. Not religion,” he says.

A pakhawaj player and music enthusiast, Nath recalled a time when he could peacefully practice at the banks of the Ganga, in solitude. These days, streaks of light from eateries and shrieks from mer­ry-go-rou­nds that have opened up in the nea­rby Assi Ghat—the administration’s new jewels on Kashi’s ancient banks—as well as the glitzy aar­tis broadcast on loudspeakers, are a distract­ion. He choo­ses to practice inside his office, hoping the sound of his drum can drown the caco­phony of development.

Back in the peripheries of Peeli Kothi, where the Abu Hanifa mosque is located, a community of weavers work late into the night to make saris for the city’s rich. Saifuddin, who lives in a rickety two-storey house in a lane close to the mosque, tells Outlook that all is well. “Artists can’t afford to be communal”. He elaborates that the saris he and his son make are mostly distributed by Hin­du traders to shops owned by Hindus, from whe­re they are bought by Hindu customers. But eco­­­nomics isn’t everything. “This is the city of Ganga-Jamuni tehzeeb. It’s a way of life,” Sai­fud­din says. He does not care about who wins the Gya­nvapi dispute. But he understands that an amicable sol­ution between Hindus and Muslims is vital for continuing their way of life.

(This appeared in the print edition as "Domino Effect")