Will CJI undo his Gyanvapi mistake?

Chief Justice of India D Y Chandrachudrsquos concerns for samesex marriage and the conflict in Manipur are in contrast to the position he took last year on the Gyanvapi mosque dispute in Varanasi His position has not only escalated the dispute but has also given a handle to the Hindu Right for polarising India before the 2024 Lok Sabha electionsBut first a background In April 2021 five women petitioned a civil court in Varanasi that they be allowed to worship ldquovisible and invisible deitiesrdquo on the Gyanvapi mosque campus which was allegedly built in the 17th century after demolishing the Vishwanath temple there In May 2022 the civil court had the Gyanvapi mosque surveyed by an advocate commissioner who ostensibly found a Shivling in the wazu khana or pond Muslims used for ablutionsAlthough Muslims insisted the Shivling was merely a fountain an application was filed in the civil court for denying them access to the wazu khana The Anjuman Intezamia Masjid Committee responsible for the upkeep of the Gyanvapi moved the Supreme Court claiming the civil courtrsquos proceedings were in violation of the Places of Worship Act 1991 which disallows a change in the religious character of a place of worship as it existed on August 15 1947 Since no relief could be granted to the five women their plea should be rejected the Committee contended The Supreme Court however asked the district court Varanasi to decide on the maintainability of the womenrsquos suitAlso Read We could devise a way to save nests while pruning treesMore pertinently Chandrachud made an observation that the Act does not debar the ascertainment of the character of a place of worship it prohibits only a change in its character Other than historians and archaeologistsmdashthe five women are neithermdashpeople are keen to know the religious identity of a place only for the purpose of worship The five womenrsquos palpable intent is to turn the Gyanvapi mosque into a templeChandrachudrsquos interpretation of the Act undermines the 2019 Supreme Court judgment in the Ayodhya suit The Supreme Court had then said ldquoIn preserving the character of places of public worship Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the futurerdquo Chandrachud was a party to the unanimous judgment in the Ayodhya caseChandrachudrsquos ascertainment theory provoked B G Kolse Patil a former Bombay High Court judge to tell me in an interview I conducted for NewsClick last year that the Chief Justice of India was in contempt of his own judgment in the Ayodhya case and that the Gyanvapi dispute had been ldquotransferred to the peoplersquos courthellip The Supreme Court order has indirectly incited the feelings ofthe peoplerdquoldquoHistory and its wrongsrdquo have already been deployed to imperil Indiarsquos social harmony Consider this The Varanasi district court to which the Supreme Court had transferred the Gyanvapi case ruled that the suit was maintainable The Intezamia Committee went in appeal to the Allahabad High Court which reserved its judgment in December 2022Yet the same high court upheld last week an appeal of the Hindu petitioners against the district courtrsquos rejection of their earlier plea for conducting a scientific study of the Gyanvapi including carbon dating the Shivling This court order let us face it conforms to Chandrachudrsquos ascertainment theory However a threemember bench of the Supreme Court led by Chandrachud stayed on May 19 the Allahabad High Court order for conducting the scientific study of the Gyanvapi precinct This is certainly a relief for MuslimsBut alas it also postpones the judicial determination of whether the Gyanvapi mosque is a temple closer to the 2024 elections Will Chandrachud reverse his ascertainment theory even though it was an observation not recorded in the Supreme Courtrsquos 2022 order and is therefore not a binding judgment Legal websites and news channels made his observation seem as law and binding ballooning the Hindutva brigadersquos hopesThe Supreme Courtrsquos deepening of the Gyanvapi dispute was the reason Kolse Patil said ldquoOn the very first dayhellipthe Supreme Court should have said The Places of Worship Act is there so stop this nonsense about the Gyanvapirdquo The nonsense is gradually becoming peoplersquos sense an example of which was the Times Now Channel flashing the model of the Vishwanath temple allegedlydestroyed by AurangzebWhen the idol of Ram Lalla was surreptitiously installed in the Babri Masjid in December 1949 it was claimed that Lord Ram had manifested himself spawning the popular slogan ldquoBabaji mil gayerdquo as Nilanjan Mukhopadhyay wrote in The Demolition and the Verdict Ayodhya and the Project to Reconfigure India Reviewing Mukhopadhyayrsquos book senior Supreme Court advocate Sanjay Hegde wrote ldquoSubstitute the slogan Babaji mil gayehellip with the claim that a Shivling was found within the Varanasi Mosque the modus operandi for Kashi remains the same as that for 70 years agordquoAs in Ayodhya so in Varanasi now the judiciary has legitimised the Hindu Rightrsquos attempts to appropriate places of worship belonging to Muslims Hopefully Chandrachudrsquos legal acumen can pull India out of this politicoreligious cesspool and undo the mistake he presumably did not know he was committingThe writer is a senior journalistSend your feedback to mailbagmiddaycomThe views expressed in this column are the individualrsquos and donrsquot represent those of the paper