Application for impleadment in Gyanvapi case says 1991 law cannot protect mosque

The 1991 law protecting the character of places of worship does not apply to mosques, said lawyer and Bharatiya Janata Party (BJP) leader Ashwini Kumar Upadhyay in his application filed in the Supreme Court seeking impleadment in the Gyanvapi mosque case.

Upadhyay has challenged the Places of Worship (Special Provisions) Act, 1991, which locks the position, or “religious identity” of any place of worship as it existed on August 15, 1947, in a separate petition. The top court issued a notice in December last year on the plea.

Upadhyay said the Gyanvapi mosque management committee’s plea against the survey of the mosque impacts his fundamental rights. “Applicant’s right to justice guaranteed under Article 14, right to dignity guaranteed under Article 21, right to religion guaranteed under Article 25, right to restore religious places guaranteed under Article 26, and right to culture guaranteed under Article 29 is directly linked with the instant petition…by the Gyanvapi mosque committee.”

The committee cited the 1991 law to oppose the survey. It said a Varanasi civil court could not be passed the survey order in view of the law, which protects the status of places of worship. The survey was ordered on the plea by five Hindu women seeking the right to worship within the mosque premises near the Kashi Vishwanath Temple.

Upadhyay said a temple is a place of worship as God resides therein. “…that’s why the temple is always a temple and its religious character never changes. On the other hand, a mosque is simply a place of prayer and that is why, in Gulf countries…it is demolished/shifted even for making roads, schools, hospitals, and public offices.” He said the religious character of the temple and the mosque is totally different. “So, the 1991 Act can’t be applied to the mosque.”

The application said the status of a mosque can be given only to structures constructed according to tenets of Islam. It added Muslims cannot assert any right in respect of any piece of land claiming to be a mosque unless it has been constructed on legally owned and occupied land.

The application said a retrospective cut-off date of August 15, 1947, cannot legalise the “illegal acts of barbaric invaders”. “The mosque constructed on temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property.”

On Friday, the Supreme Court transferred the Gyanvapi mosque survey suit filed by the five Hindu women from the court of the civil judge to Varanasi’s district judge. It came after the court commissioners submitted their report to the civil judge claiming to have found a shivling within the mosque premises.

The Supreme Court on May 17 ordered the protection of the area where the shivling was reportedly found. It directed the district judge to take up the mosque committee’s application challenging the suit on priority. The Supreme Court directed the Varanasi district court to ensure adequate arrangements are made for religious observations for Muslims at the mosque for prayers.

Upadhyay’s application said the 1991 law affects right to religion of Hindus, Jains, Buddhists, Sikhs and snubs their voice against illegal inhumane barbarian action committed in pre-independence period. “The Centre has transgressed its legislative power in barring remedy of judicial review, which is the basic feature of the Constitution,” the application said. “Right to restore back religious property is unfettered and continuing wrong and injury may be cured by judicial remedy.”

The application is expected to be taken up when the Supreme Court hears the Gyanvapi mosque case on July 21.