MEANING OF GYAN VAPI:
This was derived from the name of an adjoining waterbody — Gyan Vapi (“Well of Knowledge”) — which was a sacred site in itself and, in all likelihood, predated the Vishweshwar temple.
CAUSE FOR THIS DISCUSSION: CONTEMPORARY CIRCUMSTANCES
In the year 1991 parliament passed a law namely an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947 and for matters connected therewith or incidental thereto.
This Act is currently a topic of hot discussion. The incident which brought this law into the public domain is a suit order by Senior Division Civil Court Varanasi in which one Sohanlal Arya has claimed that Gyan Vapi Mosque is the temple. The said temple structure was partially demolished as per orders of the then Mughal ruler Aurangzeb. By an order Civil court carried out the survey in the meantime Muslim community leaders approached the Supreme Court to seek a stay of the proceedings before the Varanasi court. The Supreme Court has granted a stay and is now hearing the matter. The Supreme Court has also by its order transferred the suit to Varanasi Court District Judge.
BRUTAL HISTORY OF INVASION, CONVERSION, AND DESTRUCTION OF TEMPLES IN INDIA :
Indian history is full of conflict, invasion, and bloodshed. Hindus had to face atrocities at the hands of invaders. India was invaded by many foreign forces and two large invaders are the Mughals and Britishers. Aurangzeb was a cruel Mughal dynast, and he ordered for demolishing of temples. They converted Hindus to Islam by force. This painful, harsh, brutal, unkind history of this land cannot be erased, forgotten, and denied.
Below is a map of the Mughal Empire:
Antecedents and history:
General Order of the destruction of Temples: 9th April 1669
One of the main objectives of Aurangzeb’s policy was to demolish Hindu temples. When he ordered (13th October 1666) removal of the carved railing, which Prince Dara Shukoh had presented to Keshava Rai temple at Mathura, he had observed ‘In the religion of the Musalmans it is improper even to look at a temple’, and that it was totally unbecoming of a Muslim to act like Dara Shukoh (Exhibit No. 6, Akhbarat, 13th October 1666). This was followed by destruction of the famous Kalka temple in Delhi (Exhibit No. 6, 7, 8, Akhbarat, 3rd and 12th September 1667).
In 1669, shortly after the death of Mirza Raja Jai Singh of Amber, a general order was issued (9th April 1669) for the demolition of temples and established schools of the Hindus throughout the empire and banning public worship (Exhibit Nos. 9 & 10). Soon after this the great temple of Keshava Rai was destroyed (Jan.-Feb. 1670) (Exhibit No. 12) and in its place a lofty mosque was erected. The idols, the author of Maasir-i-Alamgiri informs, were carried to Agra and buried under the steps of the mosque built by Begum Sahiba in order to be continually trodden upon, and the name of Mathura was changed to Islamabad. The painting (Exhibit No. 13) is thus no fancy imagination of the artist but depicts what actually took place.
This was followed by Aurangzeb’s order to demolish the highly venerated temple of Vishwanath at Banaras (Persian text, Exhibit No. 11), Keshava Rai temple (Jan.-Feb. 1670) (Persian Text, exhibit No. 12 and Painting, Exhibit No. 13), and of Somanatha (Exhibit No. 14).To save the idol of Shri Nathji from being desecrated, the Gosain carried it to Rajputana, where Maharana Raj Singh received it formally at Sihad village, assuring the priest that Aurangzeb would have to trample over the bodies of one lakh of his brave Rajputs, before he could even touch the idol (Exhibit No. 15)
Aurangzeb’s solemn observation recorded in his own Court’s bulletin that “In the religion of the Musalmans it is improper even to look at a temple” and therefore, the presentation of a stone railing to Keshava Rai temple by Dara was “totally unbecoming of a Musalman” casts serious doubts about a few instances of religious toleration and temple grants attributed to him. Only two years before his long awaited death, he had ordered (1st January 1705) to “demolish the temple of Pandharpur and to take the butchers of the camp there and slaughter cows in the temple … It was done”. Akhbarat, 49-7, cited in J.N. Sarkar, Aurangzeb, Vol.III, 189).
Below is the order for Demolition of the temple of Viswanath (Banaras). August 1669 A.D.
It was reported that “according to the Emperor’s command, his officers had demolished the temple of Viswanath at Kashi”. (Maasiri-‘ Alamgiri, 88)
Disclaimer: The author cannot read, write and understand Urdu. Pictures and details are taken from the above website
(for details please visit the above link)
BEFORE STARTING THE DISCUSSION LET US UNDERSTAND THE BACKGROUND OF THIS LAW.
On 9th September 1991, the Bill was put up for discussion, and the point of order was raised by Shri. Ram Naik from Bombay North. During this discussion, one of the Members of Parliament Uma Bharati on the floor of parliament said “ I will like to quote an instance. Twenty days ago I went to Varanasi to visit Gyan Vapi, to which I have never been. At that time it was raining very heavily in Varanasi. I went to the place totally drenched, where the temple of Vishwanath was demolished by Aurangzeb to build a Mosque. Guides showed me the remnants of temple where the Mosque was built by Aurangzeb. My submission is that I am not well educated; therefore I am not conversant with the rules and procedures of the House. So, I do not know whether it will be proper to raise the issue or not, as per the rules and conventions of the House. Even when completely drenched I saw the mosque built on the remnants of the temple, some sort of current of anger ran through my body. I felt disgraced at the fate of my ancesters, who I think were challenging my womanhood and asking me, whether the intention of Aurangzeb was merely to build a mosque, then why were remnants of the temple left. Was not the intention of Aurangzeb behind leaving remnants of temple at the site of mosque, to keep reminding Hindus of their historical fate and to remind coming generations of Muslims of their past glory and power?
This is clearly a reflection first on evil designs of Aurangzeb and then of the Britishers. I would like to know from the movers of the Bill-the Congress (I) Government, why do they want to preserve and protect the wrong done by Aurangzeb and Britishers. Why are they keeping the bone of contention alive? As I felt ashamed and perturbed … (Interruptions)… I think coming generations will keep on going to Varanasi. As long as the banks of Varanasi are considered sacred and holy, people will continue to go there and see the site of old temple. I think it was the evil design”
The said bill was passed and is an Act and law known as “The Places of Worship ( Special Provision) Act,1991 ( The said Act of 1991)
COMMENTS,CAUSE, AND FACTS :
It means that Varanasi Gyan Vapi was a temple, even when the Bill was put up on the table for discussion. As per details available on various platforms, it appears that till the year 2004 puja was being performed at Gyan Vapi temple which is the current subject matter of dispute. It is said by one of the spokesperson of the present state government that, in the year 2004 puja was stopped by the then state government Chief Minister of Uttar Pradesh. It also means that at that time state government in power used force and deterrence to convert temples which are in violation of the provisions of the said 1991 Act.
Here is the link to the entire discussion:
Let us now discuss provisions:
Section 3 of the said 1991 Act Bars conversion of places of worship. It says No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.
Section 4(1) Declares that the religious character of a place of worship existing on the 15th day of August 1947 shall continue to be the same as it existed on that day.
Section 4(2) provides for abatement of any suit, appeal, or another proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August 1947, is pending before any court, tribunal, or other authority, and provides that no suit, appeal or other proceedings with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.
It further provides that if any suit, appeal, or other proceedings, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August 1947, is pending on the commencement of this Act, such suit, appeal or other proceedings shall be disposed of in accordance with the provisions of sub-section (1).
Comments: It means that if any religious place belonging to one faith is converted to a religious place of another faith then the same is not permitted and should be restored to the position prevailing on or before 15th August 1947 by due process of law as per sub-section 4(1).
Now Section 4(3) (a) to (e ) provides for exception. To whom and which monuments this law doesn’t apply.
(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force
For purposes of this discussion important provisions are 4 (3) (d) which says that any conversion of any such place effected before such commencement by acquiescence; and
(e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal, or other authority being barred by limitation under any law for the time being in force.
This means whenever a temple is converted into a mosque by acquiescence. (The word acquiescence means) ‘the reluctant acceptance of something without protest.’ So it appears that whenever a temple is converted to a mosque by a threat to which there was no opposition to avoid conflict or loss of life this law is not applicable. Again referring to Uma Bharati’s speech in Parliament during the discussion of the Bill of 1991 “This can be done if the status-quo of the religious shrines is maintained. There is a provision in the Bill that all the pending cases before the court will be treated as dismissed. But can we dismiss our sentiments so lightly? There is a temple of the Goddess at Pavagarh near Baroda which is visited by thousands of devotees every Sunday. There is a tomb in the temple premises and devotees visiting that place are bound to see it. So the Government will have to specify in writing that the temple was constructed before 1947 and hence cannot be altered even if the presence of the tomb hurts anyone’s sentiments. Devotees cannot escape the sight of the tomb. This Bill will suppress their sentiments. If you want tensions between Hindus and Muslims to continue then it is alright. If you are sincere about the well-being of the future generations then you must show the courage to bring a Bill which restores the religious shrines to their original status.
People say that if it is done then it will aggravate the dispute and further complicate the search for a solution. Even this Bill will generate controversy. So you should bring a Bill as suggested by me and observe the public reactions. By maintaining the Status-quo of 1947 it seems that you are following a policy of appeasement. Owners of bullock carts in villages, create a wound on the back of the ox and when they want their bullock-carts to move faster they strike at the wound. Similarly, these disputes are wounds and marks of slavery on our ‘Bharat Mata’. So long as ‘Gyan Vapi’ continues in its present condition at Banaras and a grave remains in a temple at Pavagarh, it will remindus of the atrocities perpetrated by Aurangzeb including his efforts to convert Hindus to Islam and this would be very painful.”
However, it appears that during the discussion she missed these exceptions. Maybe she was aware but chose not to refer. This also means that even parliament was aware that Gyan Vapi is a temple but used under threat as a mosque. Now question also arises under the guise of Secularism can you take away the fundamental right of majority citizens granted and enshrined under the constitution?
Article 25: Freedom of conscience and free profession, practice, and propagation of religion
Article 26: Freedom to manage religious affairs
Article 27: Freedom as to payment of taxes for promotion of any particular religion
Article 28: Freedom as to attendance at religious instruction or religious worship in the certain educational institution
Notedly today’s current trend is to challenge each and every law and policy in court, it appears that in those days such practice was not there. This Act has not seen corridors of court. You can say that there was no “agni pariksha’ of this Law.
DICTUM ON SECTION 4
Bharpur Singh And Ors vs Union Of India 8 September 1997 ( P & H High Court)
Briefly stated, therefore, even plain reading of Section 4 as a whole clearly indicates that it does not contemplate the re-opening of the issue which has been finally adjudicated by a competent Tribunal or Court, and thus the question of right, title, or interest involved in the place of religion has been finally set at rest
NOW WE WILL SEE THE OPINION OF INTERNATIONAL COURTS ON CHANGE OF USER:
INTERNATIONAL STARE DECISIS
In Attorney General v. Pearson & Ors. 1814-23 All England Law Reports p.60 at 63 it was observed as under:
“But if, on the other hand, it turns out that the institution was established for the express purpose of such form of religious worship, or the teaching of such particular doctrines, as the founder has thought most conformable to the principles of the Christian religion, I do not apprehend that it is in the power of individuals, having the management of that institution, at any time to alter the purpose for which it was founded, or to say to the remaining members: `We have changed our opinions, and you, who assemble in this place for the purpose of hearing the doctrines and joining in the worship prescribed by the founder, shall no longer enjoy the benefit he intended for you unless you confirm to the alteration which has taken place in our opinions’.”
Under Hill on the Law of Trusts and Trustees has explained it thus, `However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being’. None of the Parish Churches claim autonomy in the sense that they have changed their faith and belief.
The court’s function is restricted to ensure its proper implementation and not to determine whether the provisions in the Constitution framed by the religious body were fair or unfair. Religion is not governed, necessarily, by logic. In any case, it is not in the domain of secular courts to substitute their own opinion of fairness.
WHETHER THERE IS A BAR TO A SUIT UNDER SECTION 4(3) OF THE ACT?
Most. Rev. P.M.A. Metropolitan vs Moran Mar Marthoma & Anr on 20 June, 1995
Places of Worship (Special Provisions) Act, 1991 does not debar those cases where the declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognized before coming into force of the Act.
Madras High Court in S. Arumugam Review vs The Principal Secretary. on 29 November 2019 held that “ In our considered view, any stand taken by the writ petitioner at this stage, can never be an absolute bar for others to approach appropriate forum for seeking a declaration of their rights. On the basis, concessions given by the petitioner may probably bind him alone and would not be binding on others who are not a party to the litigation.”
IS GYAN VAPI AN ANCIENT MONUMENT?
WHAT IS AN ANCIENT MONUMENT?
It is defined in THE ANCIENT MONUMENTS PRESERVATION ACT, 1904 Section 2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,— (1) “ancient monument” means any structure, erection or monument or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archeological or artistic interest, or any remains thereof and includes— (a) the site of an ancient monument;
(b) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument; and (c) the means of access to and convenient inspection of an ancient monument:
Himachal Pradesh High Court Satinder Kumar and Ors vs Union Of India on 26 April 2007
Section 4(1) of the Act clearly lays down that the religious character of a place of worship as existing on 15-8-1947, that is the date India attained independence, shall continue to be the same. The protection to places of worship granted under Section 4(1) is qualified by the provisions of Section 4(3) and a bare reading of Clause (a) of Sub-section (3) of Section 4 of the Places of Worship Act clearly shows that in case of any place of worship which is an ancient and historical monument and is so declared under the Ancient Monuments Act, then the provisions of Sub-section (1) shall not apply to it.
This matter is sub-judice before District Judge Varanasi and also before the Supreme Court. Hence no conclusion is drawn. It will be decided finally by the Supreme Court.
Further provisions of said 1991 Act namely Sections 2,3 and 4 are challenged in Supreme Court and Petitions are admitted.
It may happen that all the Petitions are clubbed and decided by the Supreme Court’s larger Bench.
Time shall unfold the conclusion….
Copyright of Photos: The author has taken photos of Gyan Vapi from the net which is available freely and does not own nor claim any copyright on photos
22nd May 2022