ASI opinion on Kashi mosque: legal questions

The Archaeological Survey of India (ASI), which was asked to ascertain whether the Gyanvapi mosque was “constructed over a pre-existing structure of a Hindu temple”, submitted its report to the Varanasi district court in a sealed cover last month.

Copies of the report were given to both the Hindu litigants — who have claimed that the mosque was built on the site of the original Kashi Vishwanath temple after its destruction in the 17th century — and the Muslim side on Thursday.

The ASI has confirmed that the mosque was built above a pre-existing temple that “had a big central chamber and…at least one chamber to the north, south, east, and west respectively”.

How significant is this report in the ongoing litigation over the Kashi Vishwanath temple-Gyanvapi mosque complex?

Expert opinion

The 800-odd-page ASI report would be considered expert evidence that can be contested in court, and need not simply be taken at face value.

The parties in the civil suit will bring witnesses to testify, who will be cross-examined by the other side. Historians, archaeologists, epigraphists, witnesses of facts, and expert witnesses with religious knowledge will be presented before the court.

In the Babri Masjid-Ramjanmabhoomi case, the ASI’s findings on the use of lime surkhi were interpreted differently by the two sides. The Muslim side argued that lime surkhi “is a typical material used in Islamic structures”. Senior advocate C S Vaidyanathan, who appeared for the Hindu side, contested this, and cited evidence from testimonies of experts.

Read | ASI says ‘there existed large Hindu temple prior to construction’

The Hindu side relied on the depositions of archaeologist Suraj Bhan who said that “it is correct to say that lime water was found to have been used in the 3rd century AD during the Kushana period in Takshshila and Pakistan…”; and archaeologist Dr Jaya Menon who said “…lime mortar was definitely used from Neolithic period.”

Court’s determination

Essentially, the courts will have to determine, first, whether the ASI report can be relied upon conclusively, and then, what the existence of a Hindu temple means to the religious character of the mosque on August 15, 1947. (More on this in the next section.)

An ASI report from 2003 was cited in the Babri Masjid-Ramjanmabhoomi suit, and in its 2019 decision, the Supreme Court did not completely rely on it.

“A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI. Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries… No evidence is available…on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-existing structure was demolished for the construction of the mosque. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial,” the SC had said.

The way forward

First, the preliminary issue of maintainability — whether such a suit can even be filed will have to be conclusively decided by the Supreme Court. This issue, however, rests on the fate of the Places of Worship Act, 1991.

Sections 3 and 4 of the Act, which was enacted in the wake of the Ramjanmabhooomi movement in 1991, essentially declare that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947 — and that no person shall convert any place of worship of any religious denomination into one of a different denomination or section.

The then existing disputed structure in Ayodhya was the sole exception to this law. The ASI report is not material to the title case since the timeline that the 1991 Act sets is the date of Independence.

The Gyanvapi district court has rejected this challenge to the maintainability, and the Supreme Court orally observed in 2022 that “finding the nature of the religious place” is not barred under the Act of 1991. “But the ascertainment of a religious character of a place, as a processual instrument, may not necessarily fall foul of the provisions of Sections 3 and 4 (of the Act)…”

The Supreme Court is yet to hear final arguments to decide the preliminary issue of whether the 1991 Act bars even the filing of such a plea. So far, only oral observations have formed the basis of this argument.

Separately, a constitutional challenge to the 1991 Act — on the grounds that it introduces an artificial timeline — remains pending before the court. In 2019, the SC indicated that the case could be referred to a larger Constitution Bench, but the Centre is yet to file its response.

In a situation where the 1991 law ceases to exist — if, for example, the SC strikes it down or if Parliament reviews it — the relevance of the ASI report could change significantly.

In the 2019 Ayodhya judgment, the SC said the 1991 law was “a basic feature of the Constitution”.

“The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution,” the court said.

“The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution,” it said.

“Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values,” the court said.

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