The challenge to the direction given by the Varanasi court on 21 July for a survey of the Gyanvapi complex by the Archaeological Survey of India is currently being heard by a bench led by Chief Justice Pritinker Diwaker of the Allahabad High Court.
Just two months ago, a different bench of the same court had approved the survey, stating that the Varanasi court's order last year, which had rejected the survey request, was “assumptive and presumptive”.
On 12 May this year, Justice Arvind Kumar Mishra-I of the Allahabad High Court, who retired on 1 July, mentioned in his order that the District Judge of Varanasi had not exercised due diligence before issuing the order on 14 October 2022.
The judge stated that the finding of damage to the structure was based on assumptions and presumptions, lacking any relevant material or support from the record.
“Now insofar as the above observation of the District Judge, Varanasi in regard to direction being issued for carrying out scientific investigation is concerned, it is admitted fact that before passing the order (14.10.2022), due diligence was not exercised by the District Judge, Varanasi for the specific reason that the finding reached by the District Judge, Varanasi regarding damage being caused to the structure in issue is assumptive and presumptive and the same is not based upon any relevant material on record as such not supported by record," the Order stated, reports Indian Express.
After taking into consideration a report submitted by the Archaeological Survey of India in a sealed envelope, Justice Arvind Kumar Mishra-I ordered in favour of conducting the survey.
However, on 19 May, a week later, Chief Justice of India D Y Chandrachud's bench postponed the implementation of the order.
The CJI cautioned that “these are matters where one has to tread a little carefully”.
Both the Central government and the Uttar Pradesh government agreed to put in abeyance the survey of the mosque.
Justice Arvind Kumar Mishra-I, in his order, stated, “In view of above discussion, natural conclusion emerges that scientific investigation of the Shivlingam/site, under able guidance of the Archaeological Survey of India assisted by the experts, scientists, archaeologists, can be done conveniently subject to the rider that the site/Shivlingam in question shall not be damaged and it shall be preserved and protected in its present shape".
The High Court was hearing a revision petition filed by the Hindu side challenging the District Court's order last year.
In October 2022, Varanasi District and Sessions Judge Dr Ajaya Krishna Vishvesha rejected a plea by the Hindu side for a survey, citing the Supreme Court's directive to preserve and protect the site/Shivlingam.
The Supreme Court also transferred the Gyanvapi cases from a civil judge to Judge Vishvesha, a more senior and experienced judicial officer, due to the complexities of the dispute.
The Supreme Court intervened in May 2022 after the civil judge, who was presiding over the case at that time, permitted a video survey of the Gyanvapi mosque. This survey led to the Hindu side claiming that they found a structure resembling a Shivling on the mosque premises.
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