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Synopsis

A special leave petition has been filed before the Supreme Court seeking a direction to the Archeological Survey of India to ascertain the nature of the structure found in the Gyanvapi complex.

The petition under Article 136 of the Constitution has been filed against the impugned judgment of the Allahabad High Court, wherein the petitioner's plea seeking establishment of a committee/panel headed by a retired or sitting judge of the Supreme Court or a high court to ascertain the truth regarding the structure found in the Gyanvapi complex in Varanasi, was dismissed.

Before the High Court, the petitioner sought to ascertain as to whether the structure was a Shivling, as being claimed by the Hindus or a fountain as being claimed by few of the Muslims.

It was further sought that if it is a Shivling, then the devotees may be permitted to pray and if it is a fountain, then it may be made functional.

In the SLP, the petitioners have stated that the Shivling is a religious symbol of Lord Shiv which is worshipped by the Hindus and several people of many others communities.

"Due to emergence of Lord Visheswar most of Hindus are wanting to visit the impugned site to pray the Lingam since the day of its emergence and as it is not being managed and so there is anger amongst the majority community. The majority community is in anger as Shivling was kept in Vajukhana where the water discharged out of Vaju means washing of hands, legs and mouth was being collected...", the plea reads.

It has been further argued that the impugned structure is certainly more than 100 years old and so it needs to dealt with under the provisions of Ancient Monuments and Archaeological Sites and Remains Act 1958.

The petitioners are further of the view that after the emergence of the impugned structure, it was the duty of ASI to go on the spot to ascertain the nature of structure impugned, but as it was not done, a committee/ commission under the chairmanship of some judge of high court or supreme court may be appointed to ascertain its nature.

"....the high court without calling any reply from the respondents and relying upon some loose documents submitted by the state law officer to the court, dismissed the petition even on its merits in spite of fact that it found that the writ petition at Lucknow Bench is not maintainable for the reason that the impugned structure was found in Varanasi which is under jurisdiction of the high court bench at Paryagraj as per the Allahabad High Court Amalgamation Order 1948...", the petition submits.

Court has also been told that the bench (Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi) which decided this case before the High Court was improperly formed.

As one judge of the bench was a judge appointed under Article 217 of the Constitution and another was an additional judge appointed under Article 224 of the Constitution, the judgment is nullity in the eyes of law as it was of the bench two unequal judges, the SLP adds.

Notably, last month, the top court had allowed urgent listing of a plea seeking a direction to allow Hindu disciples to perform religious rituals at the Shivling found at the disputed Gyanvapi site.

One Rajesh Mani Tripathi, president of the Shri Krishana Janma Bhumi Mukti Sthal had approached the Top Court stating that since the month of Shravana was beginning, Hindus may be allowed to offer puja and exercise their right to “Freedom of conscience and free profession, practice and propagation of religion” as guaranteed under Article 25 of the Constitution of India.

Case Title: Sudhir Singh And 6 Others vs. Union Of India