By Dr. Ishrat Husain
Civil suit is not defined in Indian Laws. It only defines the suit of civil nature that widens the scope of civil suits. However if we look into the explanation of Section 9 of Civil Procedure Code it does clarify that a religious and cast question are not the suits of civil nature. It is a matter of concern that many a time lower civil courts treat religious matters as civil matters.
In the same way Order VII Rule 1 of CPC clearly says a plaint in civil suit will be rejected if it is barred by any law. Ascertainment of fact by the Court are not required to reject a plaint out rightly under Order VII, Rule 11(d) of Civil Procedure Code, 1908 says that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any Law”. Section 4 of the Places of Worship (Special Provisions) Act, 1991, which maintains that the character of a place of worship shall be determined as it was on August 15th 1947. It cannot open the ascertainment of religious character of any place of worship. Also, Section 3 criminalises the conversion of a place of worship from one sect to another. The objective of the Act is not to allow any new controversy. In Ayodhya case also the five judges of the Supreme Court ruled that the Places of Worship Act imposes a bar on the institution of fresh suits or legal proceedings.
‘Ignorance of law is no excuse’ is an established principle of Law. Places of Worship (Special Provisions) Act, 1991 and M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors are the laws of the land. Is Ignorance of these law excused to judges of lower courts? It is difficult to consume that Civil Judge (Senior Division) Ravi Kumar Diwakar was ignorant about the Places of Worship (Special Provisions) Act, 1991 and Law laid down by the Supreme Court. Discretion can only be used where law allows or give concession to use discretion.
On May 13th, 2022, Chief Justice of India N.V. Ramana agreed to list the Gyanvapi mosque case before a Bench presided over by Justice D.Y. Chandrachud. With this listing, political debates over the historical origins of places of worship have entered the Supreme Court once again. On May 17th, hearings on the matter commenced at the Supreme Court before a Bench comprising Chandrachud J and Justice P.S. Narasimha. Narasimha J, formerly a Senior Advocate, appeared in the Ayodhya Title Dispute, arguing in favour of the Babri Masjid’s demolition. Chandrachud J was part of the Bench for the same dispute and held that the Places of Worship Act imposes a bar on the institution of fresh suits or legal proceedings.
The only exception is in the case of suits, appeals or proceedings pending at the commencement of the law on the ground that conversion of a place of worship had taken place after 15 August 1947. The Supreme Court also ordered that the application filed by the Management Committee Gyanvapi mosque before the trial court under Order 7 Rule 11 CPC for rejection of the suit as being barred in law, shall be decided on priority by the District Judge. The Supreme Court clarified that the order passed by the Civil Judge Senior Division at Varanasi to protect the spot where a “shiv ling” was claimed to have been found during the survey of the Gyanvapi mosque will not restrict the right of Muslims to access the mosque to offer namaz and to perform religious observances. Further, on May 20, the Supreme Court had transferred the suit filed by Hindu devotees in connection with the Gyanvapi Mosque-Kashi Vishwanath Temple dispute, to the District Court in Varanasi. The court of Varanasi district judge Ajay Krishna Vishvesha. Meanwhile, it was also ordered that its interim order dated May 17 shall continue in operation till the application is decided and for a period of 8 weeks thereafter. Further, the concerned District Magistrate was directed to make proper arrangements for observance of wuzu. The Supreme Court delivered the best interim order and maintained sense of balance and calm. However, in the light of Places of Worship Act and its own judgement, the lower court might have been stopped to entertain such a suits by virtue of its inherent powers.
It was thought that the panchayti judgment of Supreme Court in M Siddique v, Mahant Suresh Das will end such disputes in future rather it seems that it open a Pandora box in this direction. It was an anomaly and was hoped to be corrected somewhere up to the Supreme Court which of course was settled by the Supreme Court but not conclusively, if continuation of such new controversies still exist. New endless controversies are at forefront like Gyanvapi, Mathura, Qutub Minar and many others in Karnataka. The Supreme Court did complete justice under Article 142 of the Constitution of India. Complete justice inclusive of the interest of both parties and both parties interest was three dome structure. Complete justice is inclusive of justice to both parties. If a party is not satisfied, it is difficult to presume it as complete justice. The idea of complete justice was once given by Balasaheb Thakrey. He opined that the national monument should be constructed at disputed site and suggested to build Mosque and Temple at equidistant from the site.
Varanasi Court on September 12, 2022 held that a suit filed by Hindu parties seeking worship rights inside the Gyanvapi Mosque is maintainable. District Judge Dr AK Vishvesha dismissed the plea filed by the Committee of Management of Anjuman Intezamia Masjid, contesting the maintainability of the suit through an application under Order VII Rule 11 of the Code of Civil Procedure (CPC).
History could not help much in Ayodhya case. Moreover, people rarely talked about history in Ayodhya case now they are emphasizing historical facts in Gyanvapi case. The viewpoint of four leading historians like Prof. RS Sharma was not accepted by the High Court and one of the judges of the Supreme Court in M. Siddiqu case.
Dr. Ishrat Husain is Associate Professor of Law, National Law University, Assam.