New Delhi [India], July 14 : The Supreme Court on Tuesday refused to restore the status quo ante (the previous state of affairs) at the disputed Bhojshala Temple-Kamal Maula Mosque Complex in Dhar, Madhya Pradesh, while issuing notice on a batch of appeals filed by the Muslim side challenging the Madhya Pradesh High Court's verdict declaring the disputed monument to be a Hindu temple dedicated to Goddess Saraswati.
A bench of Chief Justice of India (CJI) Surya Kant, Justices Joymalya Bagchi and V Mohana issued notice to the Madhya Pradesh government, the Hindu parties and the Archaeological Survey of India (ASI), seeking their responses to the appeals. The matter has been directed to be listed for hearing after two to three weeks.
While refusing to stay the High Court judgment or revive the 2003 ASI arrangement governing worship at the site, the Court passed an interim order allowing members of the Muslim community to offer Friday prayers at a separate open space adjacent to the disputed premises.
"Meanwhile, as an interim measure and without prejudice to the rights of both sides... a separate open space adjacent to the subject premises may be provided to the appellant and other members of the Muslim community for offering Namaz on Friday between 1-3 pm. The arrangement shall be ad hoc in nature. And subject to final adjudication of the appeal," the Court said.
The Court further directed that the ASI shall not undertake any structural alterations at the disputed complex without its permission.
"Structural alteration to the Complex as proposed by ASI, it will not be done without the leave (permission) of this Court", it added.
Senior Advocate Abhishek Manu Singhvi, appearing for the Mutawallis, along with Senior Advocates Huzefa Ahmadi and Vrinda Grover for other Muslim appellants, urged the Court to restore the arrangement that had governed the site since 2003, under which Muslims offered Friday namaz between 1 pm and 3 pm while Hindus worshipped on Tuesdays and throughout Vasant Panchami.
Singhvi argued that the High Court delivered its judgment on May 15, two days after reserving it, leaving the Muslim side with no realistic opportunity to approach the Supreme Court before the State and the ASI implemented it.
"Even if I had somersaulted to the Supreme Court, I would not have had time," Singhvi submitted.
He contended that the High Court ought to have granted some breathing time before its judgment was acted upon, adding that the arrangement had continued uninterrupted for nearly 23 years.
Describing the dispute as one involving India's secular fabric, Singhvi submitted that "the most important words in the Preamble are fraternity and secularism; they cross-fertilise each other."
The Court, however, expressed reservations about passing an interim order restoring the previous arrangement.
CJI Surya Kant observed that courts must be conscious of the consequences of interim orders in sensitive religious disputes.
"Please be over-conscious. Let us not pass an order which creates..." the CJI remarked, cautioning against unsettling the present situation.
The Court also noted that there had been law-and-order issues at the site even under the earlier ASI arrangement.
"It is a matter where both sides should have patience. We are ready to hear the matter on a day-to-day basis if necessary," the CJI observed.
Referring to the implementation of judicial orders, the CJI remarked that "a day's delay can have very serious implications. Once a court makes a judicial order, delay in implementation itself can have serious consequences."
Justice Bagchi also queried whether the appellants' grievance was essentially against the implementation of the High Court judgment rather than the judgment itself.
Solicitor General of India (SGI) Tushar Mehta, appearing for the Madhya Pradesh government, opposed the plea for restoration of the earlier arrangement.
He submitted that nearly two months had passed since the High Court verdict and that the administration had ensured peace on the ground.
"Since they have come after two months, because of the intervention of the administration, the situation is calm and peaceful," Mehta submitted.
Mehta questioned why the petitioners could not wait until the matter was finally heard after a short interval.
Senior Advocate Huzefa Ahmadi submitted that the Muslim community had offered prayers at the site for centuries and that the accommodation evolved by the Collector in 1997, later formalised by the ASI in 2003, reflected a spirit of coexistence.
He argued that Muslims had agreed to share access to the monument while Hindus were permitted to worship during Vasant Panchami and on Tuesdays.
According to Ahmadi, the High Court judgment and the subsequent ASI order effectively displaced a long-standing arrangement by granting Hindus unrestricted access.
Senior Advocate Vrinda Grover also argued that the mosque dated back to the 12th century and questioned why the established practice should now be discontinued.
She submitted that the High Court judgment had altered a status quo that had existed for centuries and caused irreparable prejudice to the Muslim community.
The appeals filed by the Muslim side challenge the May 15 judgment of the Indore Bench of the Madhya Pradesh High Court, which declared that the religious character of the disputed monument is that of Bhojshala, a temple dedicated to Goddess Saraswati.
The High Court had set aside the 2003 ASI arrangement to the extent it restricted the rights of Hindus to worship within the Bhojshala complex while permitting Friday prayers by the Muslim community. It also directed the Union Government and the ASI to take decisions regarding the administration and management of the temple while retaining the ASI's overall control over preservation and regulation of the protected monument.
The High Court had further observed that the Union Government may consider representations seeking the return of the idol of Goddess Saraswati, presently housed in a London museum, and its reinstallation at the Bhojshala complex. Simultaneously, it observed that if the Muslim community sought allotment of suitable land within Dhar district for construction of a mosque or place of prayer, the State Government could consider such a request in accordance with law.