It is not a new phenomenon that a mosque’s fate has gone to the Archaeological Survey of India (ASI). Mostly, the executive has used the ASI to regulate the religious activities of Muslims in old mosques. Many a times, the courts have handed over their fate to the ASI by assigning it a certain role to play.

The ASI is the same institution which has stopped the offering of namaz in many undisputed mosques throughout the country. It has either kept its control over them – under the Ancient monuments And Archeological Sites and Remains Act, 1959 and other notifications issued from time to time – or left them to be used for the entertainment of elites or lovers (contrary to the religious character of the premises). Here, the ASI made some or the other rules which go against the very essentials of offering namaz.

In the Babri Masjid case, the ASI was handed over the assignment of giving a report. The outcome of its report wrongly settled the public narrative of the Ram Temple’s demolition prior to the construction of the Babri Masjid in 1528 – the same public narrative that shifted the course of history with the Babri Masjid judgment.

It is the same ASI that has been tasked with checking the religious character of the Gyanvapi Masjid. The offering of namaz is currently allowed, without any assurance as to whether in view of the Places of Worship Act, 1991, the character of the masjid and the practice of offering namaz here will see changes.

The solicitor general’s statement was recorded that namaz shall continue, but at the same time, it is important to refresh some lessons from history.

It was the affidavit of the then-chief minister of Uttar Pradesh, Kalyan Singh (the undertaking given by the state of UP), which was recorded in the order of the Supreme Court as stating that “pending a final solution, the government of Uttar Pradesh will hold itself fully responsible for the protection of the Ram Janma Bhumi-Babri Masjid structures”.

What ensued from such an assurance is history.

The contempt proceedings arising out of this clear breach of undertaking recorded in the Supreme Court’s order could not be taken up for its final hearing despite advocate Rajiv Dhavan, who represented the Muslim side, pushing for its listing during the Babri Masjid hearing.

By the time the contempt proceedings were taken up for final hearing by the Supreme Court, two things had happened.

First, Kalyan Singh died on August 28, 2021, which made the contempt proceedings against him infructuous. Second, in 2019, a five judge bench of the Supreme Court finally decided the dispute in favour of Ram temple and gave an option to the Muslim party to avail alternate land for mosque.

The land was given by the state of UP to the UP Waqf Board – more than 20 kms from the place where the Babri Masjid once existed for about 400 years.

The Babri Masjid might have become a chapter in the history books of India. But Gyanvapi is the present. As they say, history repeats itself, and so is happening. In the Gyanvapi Masjid case, again, the chief minister of the state has spoken completely against the character of the mosque while the matter is being examined simultaneously at all the three levels of the judiciary.

This is not only overreach into judicial process, but also aimed to set-out and strengthen the narrative contrary to the 1991 Act.

Today, we not only have the Places of Worship Act, 1991 we have the affirmation of the Supreme Court itself that the Act is a reflection of the basic features of the constitution.

The court had observed that “the Act is an affirmation of the solemn duty which was cast upon the state to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the constitution.”

With the Supreme Court allowing the ASI survey during the pendency of the petition challenging the maintainability of the suit, what is at stake, one may ask?

Firstly, the ASI survey has the capacity to institutionalise the ‘public narrative’, the same public narrative that became instrumental in the Babri Masjid case.

Secondly, the mere carrying out of the ASI survey casts aspersions on the character of the Gyanvapi Masjid – a structure that is ‘disputed’ and needing a scientific study to establish its character.

It is crucial to be reminded that the object of the 1991 Act was to preserve the religious character of a place of worship as it existed on August 15, 1947. By allowing the ASI survey of the Gyanvapi Masjid, not only has the religious character of the Gyanvapi Masjid been put into dispute, but the objective of the 1991 Act has vanished into thin air.

The 1991 Act had kept the Babri Masjid case as an exception from its application. The Gyanvapi Masjid has emerged as the second-largest matter before the courts related to the questioning of a masjid’s character post-Babri.

Needless to mention, the dispute also has its deep roots in the political promises of the ruling party. Gyanvapi, thus, was the litmus test to ascertain the relevance of the 1991 Act and the sanctity of judgement on it, a test in which our system has failed.

(M.R. Shamshad is an advocate at the Supreme Court of India. Courtesy: The Wire.)