Removal Of Hindu Deities By Govt Vs Hindu Claims On A Mosque: A Varanasi Judge’s Conflicting Decisions

08 Jun 2022 0 min read  Share

A Varanasi judge who admitted a slew of petitions against the Gyanvapi mosque since February 2021, allowing videography before deciding the maintainability in one, in the same time period, rejected a suit for urgently hearing allegations about the removal of Hindu deities by India’s ruling Bharatiya Janata Party government while building the Kashi Vishwanath corridor, rebuking the petitioner for seeking attention. Many Varanasi residents questioned the absence of the courts and media when critics claimed scores of temples were allegedly destroyed for ‘development and beautification’.

A view of the renovated Kashi Vishwanath temple in Varanasi./ PMO TWITTER ACCOUNT

Varanasi: “Look, where our gods have been thrown by this government that cares not for Hinduism but craves publicity. One here and one there. People are walking on the ground that we used to worship because of this so-called beautification.”

Ajay Sharma, a 48-year-old heavyset businessman with a  booming voice, dealing in clothing and construction, seethed as he listed the names of Hindu deities that once encircled a temple housing a black stone shivling inside the Kashi Vishwanath temple in Varanasi—demolished and rebuilt several times between the 12th and 18th centuries—pointing to the different places to which they were moved.

As we walked along the Kashi Vishwanath corridor leading to the banks of the Ganga in the holiest city for Hindus, Sharma, whose petition to restore the deities and protect his right to religious freedom was dismissed in September 2021, continued, “They have destroyed our deities and temples to make these buildings and a VIP guest house. We support development but oppose destruction.” 

Looking at the domes of the Gyanvapi mosque situated next to the temple, Sharma said, “If Aurangzeb destroyed a temple to build a mosque and if they did it to build a VIP guest house then what is worse? I have always voted for the BJP but not this time (the 2022 Uttar Pradesh Assembly election). I can tell you, many of us did not vote for them and we will never again.”

While member of the legislative assembly Neelkanth Tiwari registered his second victory from south Varanasi for Prime Minister Narendra Modi's Bharatiya Janata Party (BJP), albeit with a reduced margin from 2017, and the BJP won a second consecutive term in Uttar Pradesh (UP), constituents in the holy city who call themselves “true Varanasi residents” quietly carry their grievances and contradictions. 

While they don't want to be linked to the communal politics of the BJP, and bash the Hindu nationalist party in front of the media, these “true Varanasi residents” speak of keeping the peace, but they speak of reclaiming the Gyanvapi mosque—built after Mughal ruler Aurangzeb demolished the temple that stood there in 1669—for Hindus in the future. 

For now, they focus on their grievances against the government, displaying the photos and videos of razed homes and shops, bulldozers and the mounds of debris, on their mobile phones, and rail against the damage done by the Rs 800 crore (Rs 399 crores spent in the first phase) pet project of Modi, who said it would improve access, especially for the elderly and people with disabilities to the temple. 

“Everyone wanted to come here, but there were no proper roads and insufficient space...But now with the completion of the Vishwanath Dham project, it has become easier for everyone to reach here,” Modi, a member of parliament from Varanasi since 2014, said while inaugurating the project in December 2021. “New India has a heritage as well as development.”

Varanasi civil judge (senior division) Ravi Kumar Diwakar ruled that Sharma’s petition—claiming the manner in which the BJP government had renovated the Kashi Vishwanath temple built by Maratha queen Ahilyabai Holkar in 1777, constructed the Kashi Vishwanath corridor by destroying and relocating deities and temples, violated his religious freedoms—did not qualify for an urgent hearing under section 80 (2) of the Civil Procedure Code, 1908, which allows a citizen to file a petition against the government or public officers seeking immediate relief. Civil judge Diwakar has since February 2021 admitted eight petitions claiming the existence of the Gyanvapi mosque violated their religious freedoms. These were admitted even though the Places of Worship Act, 1991, forbids suits for changing the religious character of a place. In the case of the five Hindu women petitioners who want to pray to a Hindu deity at the outer western wall of the mosque, the judge ordered videography before deciding whether the suit was maintainable, triggering communal tensions in the city. 

Three years earlier, the Allahabad High Court, in a matter of one month since it was filed in May 2018, dismissed a petition filed by Varanasi resident Sandeep Kumar Singh and the Dharohar Bachao Samiti, alleging the destruction of temples, traditions and the Ganga due to the construction of the Kashi Vishwanath corridor. The High Court ruled that the project was "in the public interest and for development". The Varanasi civil court in September 2021 took three days to dismiss Sharma’s suit, saying that the "petitioner has submitted this petition to gain popularity". 

Noting the difference in the attitude of the Varanasi court, where, in the case of the Hindu women petitioners, the judge allowed videography without deciding on the maintainability of the suit, and in the present case, where the motive of the petitioner was attributed to gaining popularity, Chandra Shekhar Seth, the Varanasi-based lawyer who appeared for Sharma, said, "Our matter is urgent because it is not the Gyanvapi mosque where pooja has not been done for the past 300 years.  We are saying there are sacred spots where we worshipped in the present that people are walking on."

Furthermore, Seth said while there were brief arguments on the maintainability of the suit, civil judge Diwakar, in his order, observed the place in question was a public place where everyone could go, which was never a bone of contention. "This was an observation on merit when there was no chance to argue on merits. We said the places where we worshipped were demolished and this violated our right to worship."

The frustration of a section of Varanasi residents at the courts, the media and the public resurfaced after the explosion of litigation against the Gyanvapi mosque, concerning a temple demolished three centuries ago and the frenzied coverage by news channels in May. They told us the demolition of hundreds of temples, homes and shops over the past three years received no such attention. 

While Varanasi residents speak of the demolition of "143 puranic temples", a reference to temples mentioned in ancient texts, as a matter of fact, in an interview in 2018, Vishal Singh, CEO of the Shri Kashi Vishwanath Mandir Trust, the non-government organisation tasked with the redevelopment, said no temples were being demolished, and those “removed” would be replicated later by archaeologists, while the statues of deities inside them were kept safely. In 2021, Modi said that 40 temples were freed from encroachment and restored. 

Varanasi residents said information on the demolitions was being hidden.

Sharma’s applications under the Right to Information Act (RTI), 2005, about the extent of the damage to temples and deities—sent in September and October 2021—received no substantive answers from the authorities. 


A Double Standard Is Alleged In Judicial Decisions

Following the intervention of the Supreme Court, the case of five Hindu women petitioners was transferred from Diwakar to a district judge in Varanasi. The three-judge bench led by Justice DY Chandrachud observed that a “slightly more mature” and “seasoned hand” should handle the case, but made it clear the court was not casting any aspersion on the judge. Justice Chandrachud also observed that the Act does not bar ascertaining the religious character of a place. The petition is now being heard by district and sessions judge Ajay Krishna Vishvesha who will decide if the suit is maintainable. The eighth case filed since 2021 was transferred to the fast-track court of civil judge senior division Mahendra Pandey on 25 May 2022.

“There is a double standard,” said Sharma, who is also the state president of the Kendriya Brahman Mahasabha. “Many cases against one mosque over one temple are admitted, but my case saying the government destroyed temples, removed deities, and violated my right to worship was rejected.”

“As for the media, when our homes and temples were demolished, no one came to report even though we begged them,” he said. “They finally came last month, not because they care about religion but to spread communal feelings among people over the temple and mosque.”

Seth, the Varanasi-based lawyer who appeared for Sharma, said, “All we are saying is that the court should have at least heard us out. By changing the classical structure of the temple to the extent that they have done, I can no longer pray the way that I used to. They have changed the religious character of the temple and violated my right to worship.”

“While this is the home of Lord Shiv, Hindus pray not just to him, but to the family of gods around him, and there are so many yatras and poojas conducted for all of them. To lose so many traditions and heritage is deeply painful for us,” he said.

Noting that 143 “puranic temples” had been destroyed, V N  Mishra, Indian Institute of Technology (BHU) professor and the chief priest of the Sankat Mochan Hanuman temple, said,  “Benaras is not about infrastructure or bright lights or doing PR, but learning, intellectualism, and its layered civilisation that has absorbed so many people and traditions.”

Deepak Malviya, a famous astrologer and a member of the Shri Kashi Vishwanath Temple Trust, said the deities removed during the construction of the corridor were preserved and restored. “There may be some change in where they are now placed, but they were not destroyed,” he said. 


‘No Money Can Replace The Temple We Lost’

In addition to dismissing the 2018 petition alleging that temples were being destroyed in the construction of the Kashi Vishwanath corridor, the Allahabad High Court dismissed a 2019 petition to stay the demolition of shops, and a 2020 contempt case against officials in Varanasi for construction near the Ganga, finding them to be without merit. 

In the absence of a policy for acquisition, following the sale of buildings by the owners to the UP government, tenants moved courts to save their homes and shops, reaching settlements of varying amounts depending on their wherewithal to find lawyers and file petitions. 

Sharad Shukla, a middle-aged businessman selling cloth, who has moved to a different part of the city, said that he settled with the government for one crore rupees (divided between four family members) for a house going back hundreds of years, but no money could replace the temple they lost. 

“How much can you fight the government? You can't go beyond a point. They are too strong,” he said. “How much money can they give me to replace a temple that was in my family for five generations? No money can replace it.”

Bhanu Mishra, a shopkeeper whose store of prayer items was demolished, and who fought a legal battle before settling for Rs 15 lakh, said, “What I want to know is when temples were destroyed by the government, where were these people who are now screaming about the mosque. If they were not pained then, why are the shamsters in so much pain now.” 


‘Respondent  Has Carried Out Many Irreligious  Activities’

In his petition, Sharma said the government of UP had removed the “Baba darbar,”  the pantheon of gods around the black stone shivling inside the mosque, disrupting the traditional ways in which prayers are offered in Hinduism, thereby violating his right to “religious, constitutional and civil rights.”  Furthermore, Sharma wrote in his petition, that the spots where the deities once rested have been paved over and people are now walking on them. 

“Instead of protecting them, the deities and the temples have been relocated or destroyed to make the VIP guest house and several other buildings,” the petition reads. “In the name of public convenience, the respondent has carried out many irreligious activities.”

Sharma said the manner in which the UP government had constructed the Kashi Vishwanath corridor and renovated the Kashi Vishwanath temple was in violation of The Uttar Pradesh Shri Kashi Vishwanath Temple Act, 1983, the Shri Kashi Vishwanath Special Area Development Board Varanasi Act, 2018, The Places of Worship Act, 1991, and the Supreme Court judgement of Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others versus the State of UP and others (1997). 

As per section 4 (9) of the 1983 Act, cited in the petition, “temple” means the “temple of Adi Vishweshwar, popularly known as Shri Kashi Vishwanath Temple, situated in the city of Varanasi which is used as a place of public religious worship, and dedicated to or for the benefit of or used as of right by Hindus, as a place of public religious worship of the Jyotirlinga and included all subordinate temples, shrines, sub-shrines and the ashthans is all other image and deities, mandaps, wells, ranks and other necessary structure…” 

From the Supreme Court 1997 case, which upheld the validity of the 1983 Act, the  petition cited: “The Act protects the right to perform worship, rituals or ceremonies in accordance with established customs and practices.” 

“Every Hindu has the right to enter the Temple, touch the linga of Lord Sri Vishwanath and himself perform the worship. The state is required under the Act to protect the religious practices of Hindu form of worship of Lord Viswanath, be it any forms, in accordance with Hindu shastras, the customs or usage obtained in the temple.” 

As per the Shri Kashi Vishwanath Special Area Development Board Varanasi Act, 2018—cited by the petition—“An act to provide for the establishment of Shri Kashi Vishwanath Special Area Development Board to create, formulate, implement, regulate and maintain the Special Area under its jurisdiction for developing and maintaining the cultural, spiritual, mythological and architectural aesthetics in such area to promote tourism in consonance with the rich cultural heritage thereof.”

The petitioner argued the manner in which the UP state government had carried out building the Kashi Vishwanath corridor violated the Places of Worship Act: “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.” 

The action of the state government, the petitioner said, was “illegal, harmful to the Hindu religion, and violated the Supreme Court decision.”

“What Will I Do With Popularity?”

In response to the petition filed by Sharma on 20 September 2021, the UP government asked for it to be dismissed, arguing the matter was not urgent. If the petitioner felt his right to worship was violated, the government said, this was a matter for the higher courts, such as the Allahabad High Court or the Supreme Court because a civil court could not enforce fundamental rights.

Dismissing the petition as not qualifying for an urgent hearing under section 80 (2) of the Civil Procedure Code, on 23 September 2021, civil judge Diwakar said whether the Kashi Vishwanath corridor was built in a manner allowed by the practices of Hinduism was a matter of more detailed discussion and debate, he had studied the laws and the Supreme Court judgement cited in the petition and found the facts and circumstances in the present case to be different, the petitioner brought this suit to gain popularity, and the place in question was a public place accessible to the petitioner.

A week before the case of the five Hindu women petitioners was transferred to a district court judge in Varanasi by the Supreme Court on 20 May, Diwakar, in his order of 12 May confirming videography inside the mosque, directed the advocate commissioner to video the spots pointed out by the plaintiffs, the district administration to open and break open locks, and the police to register a first information report (FIR) against anyone who did not cooperate with the surveillance inside the mosque.

In the order, in which he said the exercise will not be stopped even if the parties do not cooperate, and that it was the personal responsibility of the police commissioner and district magistrate to ensure it was completed, Diwakar wrote that an “atmosphere of fear has been created by making a civil case into an extraordinary case”, and his family was worried for his safety and he was worried about them. 

Scrolling through images of the felling of a centuries-old sacred peepal (fig) tree during the construction of the corridor, Sharma refuted Diwakar’s reasons for dismissing his case and describing him as someone seeking popularity. 

“What will I do with popularity?” said Sharma. “I went to court as a citizen and a devotee of Shiv. I want my rights but I can't take on the government. The pain I feel cannot heal. All I can do is write about it on social media.”  


‘It Is So Ridiculous That Words Fail’

Two days after his petition was dismissed, on 25 September 2021, Sharma received a response to the RTI application that he sent to the information officer of the Shri Kashi Vishwanath Temple Trust Council and the Shri Kashi Vishwanath Special Area Development Board, asking for details about temples and deities found, discovered and removed during the construction of the corridor, and on whose orders, under which law, and what dates.

The authorities declined information. 

They cited section 8(1) (g) of the RTI Act: “information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.”

“If I ask about my gods and temples, how is that a security issue? It is so ridiculous that words fail,” said Sharma. “The double standard is which temple is worth saving for them and why.” 

Four days later, on 29 September, Sharma wrote to Modi that temples were being destroyed and deities removed during the building of the Kashi Vishwanath corridor, and asked for his intervention to put a stop to the destruction and restore them. 

On 6 October 2021, Sharma appealed against the first reply to his RTI, stating the exemption did not apply because his query did not pose a security threat, and the reluctance to provide answers pointed to “corruption” inside the Shri Kashi Vishwanath Temple Trust Council and the Shri Kashi Vishwanath Special Area Development Board, or that “puranic temples have been destroyed”.

Treatment Of Kashi Vishwanath Corridor Petitions By Higher Courts

In July 2018, a division bench of the Allahabad High Court led by then Chief Justice D B Bhosale dismissed a petition challenging the construction of the Kashi Vishwanath temple and the beautification of the Ganga, one month after it was filed by Varanasi resident Sandeep Kumar Singh and the Dharohar Bachao Samiti


A year later, in May 2019, the Allahabad High Court division bench of Amit Sthalekar and Piyush Agrawal dismissed petitions filed by six Varanasi shop owners to stop the state government from demolishing their shops after the landlord of their building sold the property to the government, which, the petitioners said, made them statutory tenants who cannot be dispossessed without a resettlement plan.

Dismissing the petition, the Allahabad High Court said the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, did not apply because the documents provided by petitioners left the court doubting whether they were the tenants of the building in question, the government had carried out a purchase not an acquisition, and, furthermore, they could seek relief under the Shri Kashi Vishwanath Special Area Development Board Varanasi Act, 2018, in a civil court.

Reversing the Allahabad High Court’s decision in June 2019, the Supreme Court division bench of Justices Deepak Gupta and Surya Kant ruled that the interest of the shop owners had to be protected, but advised the petitioners to amicably work out suitable compensation with the UP government, which argued that while the project was 47,000 sq m, the premises of shop owners blocking it was 100 sq m, and 90% of the buildings in the corridor had already been demolished.

A year later, in June 2020, the Allahabad High Court dismissed a contempt petition filed against the chief executive officer of the Kashi Vishwanath project on the grounds that the construction violated a 2012 high court order banning any construction activity “within 200 m from the highest flood level at banks of river Ganga.” 

Noting there was no conflict between the 2012 order and the 2018 Act to create the Kashi Vishwanath Corridor, and the required no-objection certificates and permissions were obtained, Justice S P Kesarwani fined each petitioner Rs 5,000, accusing them of “frivolous and groundless filings” when the court had  950,000 pending cases, and impeding development in Varanasi. 

In December 2018, the Supreme Court dismissed a petition by the Gyanvapi mosque committee filed after a structure close to the mosque entry was reportedly demolished on 25 October, asking for a stay on the Kashi Vishwanath project until the security concerns of Muslims were addressed. 

The demolition was an accident but it alarmed Muslims who fear the fallout of the Kashi Vishwanath corridor on the mosque, which is under attack from the Hindu rights groups that have never stopped calling for its demolition. 

“For the last 30 years it (Varanasi) has been a peaceful place,” said a division bench of justices Arun Mishra and Vineet Sharan. “Do not disturb it with this kind of litigation. This may cause more sensation than peace.”


‘Do You Really Think Peace Is Possible?’

The photos and videos of the destruction wrought in the making of the Kashi Vishwanath corridor on the mobile phones of Varanasi residents have given way to a steady stream of unverified news clips of a shivling being uncovered inside the Gyanvapi mosque. 

As young boys pored over the images in a tea shop, Ajay Sharma and Bhanu Mishra, well-known faces in the bustling market around the Kashi Vishwanath temple, who pride themselves on being “true Varanasi residents”, tell them the media are reporting “rubbish,” and having spent their youth inside the temple-mosque complex, they know there is no shivling inside. 

Recalling how the tents and poles for setting up the stage for performing the Ramayana every year are kept in the storeroom of the mosque, Mishra said, “The people of Kashi do not have a problem with the mosque but Hindutva has a problem. My heart believes there should be a mandir and a masjid, but do you really think peace is possible anymore? I feel politics has pushed us way beyond that point.”

(Betwa Sharma is managing editor of Article 14.)