Supreme Court permits ASI survey of Gyanvapi mosque premises; tells Muslim party "what is frivolous to one is faith to another"

The Supreme Court on Friday refused to interfere with a Allahabad High Court order allowing the Archaeological Survey of India (ASI) to conduct a scientific survey of the Gyanvapi mosque premises..A bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra rejected the plea by Muslim party challenging the survey and said that the High Court order for survey does not warrant interference by the apex court at this stage and such a survey was conducted even in Ayodhya case. "The district judge has ordered scientific investigation by ASI. The High Court has found no reason to interfere having set out the legal position while dealing with an interlocutory order of this nature. High Court has introduced certain safeguards. Having regard to nature and ambit of court appointed commission we are unable to differ with the High Court," the apex court said.The Court further noted the assurance by the ASI that there would be no excavation or destruction of property."High Court was correct in our view to introduce some directions to circumscribe the order of the district judge. The ASI has clarified that there is neither excavation nor there would be destruction of property," the top court said.The Court, therefore, ordered that ASI conducts the survey by employing non-invasive methodology. The Court also directed that there should be no excavation at the site."We order and direct that entire ASI survey shall be completed by non invasive methodology adopted by the ASI. We reiterate High Court order that there shall be no excavation at the site. The ASI survey report shall be remitted back to the High Court and be taken up for trial in the suit," the order said.The ASI report should be in sealed cover, the Court added.The Court also turned down the argument of the Muslim party that the plea is frivolous. "If someone now comes and files a frivolous plea saying that there is a monument below this structure.. will you order ASI survey," Senior Counsel Huzefa Ahmadi submitted on behalf of Muslim party."What is frivolous to you is faith to other side," said CJI DY Chandrachud..Background.The Gyanvapi mosque has been the subject of dispute after Hindu devotees approached a civil court seeking the right to worship inside Gyanvapi Mosque, claiming that it was a Hindu temple and that it still houses Hindu deities.Earlier, the civil court ordered a survey of the Mosque itself by an advocate commissioner, who then videotaped the premises and submitted a report to the civil court in May 2022.The report, among other things, stated that an object similar in appearance to a Shivling was found.The present matter concerns disputed claims over whether the structure found on the premises of the Gyanvapi mosque during that earlier survey was a Shivaling, as claimed by the Hindu parties in the case.On October 14, 2022, the District Court had passed an order rejecting a plea for scientific investigation to ascertain whether the object was a Shivling or a fountain.However, the Allahabad High Court on May 12 held that a scientific investigation can be done to ascertain whether the object was a Shiva Linga or a fountain, without damaging the object.Days later, the Supreme Court temporarily deferred the High Court's direction while seeking the responses of the Central and Uttar Pradesh governments to the appeal filed by a Muslim party challenging such a direction.This matter is presently pending before the top court.However, the District Court on July 21 ordered an ASI survey of the mosque premises excluding the area previously sealed by the Supreme Court (wuzukhana or an ablution pond).The High Court on Thursday upheld the District Court order leading to present appeal before the top court..The masjid committee contended that the religious character of Gyanvapi mosque as on August 15, 1947 and prior to, has been, and continues to remain that of a Muslim Mosque and therefore the fundamental question before the High Court was whether could it permit a survey of the Mosque in view of the provisions of Places of Worship (Special Provisions) Act, 1991.The plea said that the 1991 Act bars reopening and examining the nature of worship of a place as it stood on the date of independence. The petitioners further contended that the ASI survey liable to be set aside on account of grave risks posed by such an exercise "which may have consequences throughout the country..Arguments today.Ahmadi told the Court today that the survey impinges upon all principles of fraternity, secularism, statement of object of 1991 Act as well as Supreme Court orders."What is the survey for? By going into history on what happened 500 years ago, are you not violating the Places of Worship Act 1991," he asked.The CJI assured that the structure would be safeguarded and won't be damaged because of the survey."In Ayodhya case, the evidentiary value of ASI survey was examined.. we separated grain from shaft and then discarded some. Today only the survey is being conducted. We will safeguard the structure," the CJI assured.He also asked why an objection was being raised to every interlocutory order. "How can you raise objection to every interlocutory order. This has to be treated like any other suit where a commissioner was appointed. Now we have a trial court order. We have a reasoned HC order. Why should we interfere now? We will safeguard the structure," the CJI said.SG Tushar Mehta too weighed in and read from the affidavit filed by ASI."No drilling, cutting of stone will be done from the existing structure. No wall or structure will be damaged. Tt will be done by the non destructive method," he read out."Where the question of excavation here. He is saying in future he may do it. These are all techniques one after another. Let me speak on places of worship act. It is like uncovering wounds of the past and that is what Places of Worship Act sought to prevent. You are unravelling wounds of past here," said Ahmadi..Justice Pardiwala asked whether the survey would cause any irreparable injury. "Order 7 Rule 11 is rejected. You are opposed to the survey. Despite assuring you that no harm will cause to the structure, this survey will be in form of report. If tomorrow plaint is successful filed by you, then ASI survey will be a piece of paper. Let the survey happen. Let the report be furnished in a sealed cover.. have we reached the point of irreparable injury," he asked.By this interlocutory order, there is unravelling of wounds from the past and violate the Places of Worship Act of 1991.Ahmadi also said that the High Court itself had ordered a stay on the survey when a similar prayer was made."An identical prayer was made and ASI survey was ordered and ultimately the High Court by an interlocutory order stayed that ASI survey on September 9, 2021. When HC in one proceeding in relation to same property does something how can it act differently... a similar issue is there concerning the fountain area..." he said.The CJI then asked whether the Court should hear the appeal on the issue of maintainability of the suit itself."Should we hear the appeal to Order 7 Rule 11.. hear the case and decide it," he asked.Ahmadi then responded in the affirmative."Yes, they have to accept notice then," he said."We will keep the order 7 rule 11 next week and we will hear it then," the CJI said. "In the same plea, we are also seeking stay of proceedings before the trial court," Ahmadi stated..The CJI reassured that the mosque will not be harmed during the survey."We will ensure that the mosque is not touched and that there is no excavation," the CJI remarked.However, Ahmadi said that these were all tactics by the Hindu side to oust the Muslim side from the property step by step."Carbon dating is like having the genie escape the bottle. I am on a legal submission. The survey should not have been ordered in light of the express diktat of the Places of Worship Act. There will be applications ..'this is found.. seal this.. let me do pooja at this place'. This is salami tactics and piece by piece I will be ousted from my own property," he said.