New Delhi: Kashi Vishwanath Temple is one of the most famous Hindu temples dedicated to Lord Shiva. The temple stands on the western bank of the holy river Ganga, and is one of the 12 Jyotirlingas, making it the holiest of Shiva temples.
It has been destroyed and re-constructed a number of times in several Islamic invasions of India. It was last demolished by Aurangzeb, the sixth Mughal emperor who then carried out an un-Islamic act of constructing a mosque on the site where the demolished temple was situated.
The current existing Kashi Vishwanath temple has been built on an adjacent site by the Maratha ruler, Ahilya Bai Holkar of Indore in 1780, and not on the original site where a functioning mosque today stands. Maharaja Ranjit Singh, the first Sikh Maharaja, had donated 1 ton gold for the new temple’s dome.
In 1983, the management of this temple was taken over by the government of Uttar Pradesh. It is still under government management.
During the religious occasion of Shivratri, The “Kashi Naresh” (King of Kashi) is designated chief officiating priest. The original Gyanvapi Kashi Visvanath temple is mentioned in the ancient Puranas including in the Kashi Khanda (section) of Skanda [Subramanya/Kartikeya] Purana.
The original Gyanvapi Kashi Vishwanath temple was destroyed by the army despatched by Mohammed Ghori in 1194 AD, when it had defeated the Raja of Kannauj. In 1192 AD, Ghori had been crowned as Emperor in Delhi after defeating Prithviraj Chauhan.
The temple was rebuilt by a Gujarati merchant during the reign of Delhi’s Sultan (1211-1266AD). It was demolished again during the rule of either Hussain Shah Sharqi (1447-1458) or Sikandar Lodhi (1489-1517).
Raja Man Singh of Jaipur thereafter built the temple during Mughal Emperor Akbar’s rule, but some Hindus boycotted it. Raja Todar Mal further renovated the temple with Akbar’s funding at its original site in 1585.
In 1669 AD, the Gyanvapi Temple was again destroyed because of a firman issued by Emperor Aurangzeb and to ensure it was not rebuilt, as it was on earlier occasions, he got constructed the present “Gyanvapi” Mosque in its place thereby, in, according to Syed Shahabuddin, violation of Islamic law as stated in the Hadith, which states it is haram to build on usurped sites [such as of religious sites of other faiths].
The remains of the erstwhile temple were used for mosque construction which can be seen in the foundation of the mosque, the columns, and a chamber at the rear part of the mosque visible as part of the temple.
In 1742, the Maratha ruler Malhar Rao Holkar made a plan to demolish the mosque and reconstruct the temple again at the site. However, his plan did not materialise, partially because of intervention by the Nawab of Awadh, who had been given the control of the territory.
Around 1750, the then Maharaja of Jaipur commissioned a survey of the land around the site, with the objective of purchasing land to rebuild the Kashi Vishwanath temple. However, his plan to rebuild the temple did not materialise.
In 1780, Malhar Rao’s daughter-in-law, Ahilyabai Holkar constructed the present temple adjacent to the mosque as a temporary measure. That is what is seen when Hindus go for darshan to Varanasi.
FAITH OF HINDUS
As per the Shiva Purana, once Brahma (the Hindu God of creation) and Vishnu (the Hindu God of Preservation) had an argument about who was supreme. To test them, Shiva pierced the three worlds as a huge endless pillar of light, the jyotirlinga, to determine who was mightier. Vishnu took the form of Varaha and sought out the bottom while Brahma took the form of a swan to fly to the pillar’s top.
The jyotirlinga shrines, thus, are places where Shiva appeared as fiery column of light. There are 64 forms of Shiva, not to be confused with Jyotirlingas. Thus Jyotirlinga being a matter of faith, it cannot be questioned just as the belief that Jesus was born in Bethlehem in Israel or Prophet Mohammed ascending upward to Heaven on a horseback from a rock where Al Aqsa Mosque is situated. There is no scientific proof of the beliefs, but they are a matter of faith.
Faith is enshrined in the Preamble to the Indian Constitution and enjoys immutability, being a part of the Basic Structure of the Constitution. With Article 25 of the Constitution enshrining it as a fundamental right to pray and worship at a spot of special significance for Hindu religion, therefore irrespective years have passed away, Hindus have a right to regain the Gyanvapi site and rebuild a temple on the spot.
Thus, the question that arises today is whether it is possible through Constitutional methods, to retrieve the Gyanvapi Kashi Vishwanath Temple site where the mosque stands, and to re-construct the said temple again to its full glory, and also facilitate the Muslim citizens of India to build their mosque elsewhere in Varanasi. That is the key question that I, after having successfully intervened in the Ayodhya Ram Temple case in the Supreme Court, now have resolved to take up the Gyanvapi Kashi Vishwanath Temple re-construction case after recovering the original Linga thrown into a temple near the site.
The Government has the constitutional mandate to acquire the entire Gyanvapi site under Article 300A. The Supreme Court in M. Siddique vs Mahant Suresh Das [AIR 2018 SC 5134 at para 61] had held: “…We have already noticed that the Constitution Bench In Ismail Farooqui vs Union of India [(1994) 6 SCC 360] held that acquisition is a sovereign or prerogative power of the State to acquire property and all religious places, namely, church, mosque, temple etc. are liable to be acquired in exercise of right of eminent domain of the State.”
Under the concept of “eminent domain”, the State has under Article 300A of the Constitution the mandate to take over any land with some exceptions. The Central Government is however obligated to compensate the appropriate party with reasonable compensation.
That is, Article 25(1) speaks of the fundamental right to worship which has been interpreted by the Supreme Court of [(1994) 6 SCC 360, in paragraphs 77, 78 and 82] that makes it evident that a place of worship of any religion which place has a particular significance for that religion, is an essential or integral part of Fundamental Right. Thus, Gyanvapi Kashi Vishwanath Temple is indisputably such a place of significance which cannot be appropriated.
The Constitution Bench also observed that acquisition of place of religious worship like church, mosque etc., per se does not violate rights under Articles 25 and 26. The Court, however, has noticed one fetter on such acquisition. The Constitution Bench held that if a particular place is of such significance for that religion that worship at such place is an essential religious practice and the extinction of such place may breach their right of Article 25, the acquisition of such place is not permissible.” [op.cit., judgment cited above; emphasis supplied]
In the case of Gyanvapi temple, this Fundamental Right of Hindus is for praying at a site where faith tells them the Jyotirlingam is situated.
This faith is obviously an essential part of the Hindu religion and such right is superior to and prevails over the ordinary right to property claimed, for example, by the Sunni Wakf Board.
The Hon’ble Supreme Court foresaw this in Farooqui vs Union of India on the religious character of mosque [(1994) 6 SCC 360 at para 139], which also holds that a mosque is ordinarily not an essential part of the practice of the religion of Islam because namaz (prayer) by Muslims can be offered anywhere, e.g., even in an open maidan or on a road/highway.
The Constitutional Bench of five judges thus held, by majority, that Muslims do not have a fundamental right to recite namaz at any mosque unless a particular mosque has special significance for Islamic religion as does for example, the Al Aqsa mosque.
There is a serious Constitutional issue arising from enactment of the Place of Worship (Special Provisions) Act of 1991 (hereinafter “Act of 1991”) which Act does not permit if held constitutional, for the Courts to restore any religious institution including the Gyanvapi Mosque to be demolished if it stood on August 15, 1947.
The Act of 1991 is thus retrospective in nature by declaring the 15th day of August 1947 as the date to determine the religious character of a place of worship.
Section 4 (1) of the Act declares that 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. The logical sequitur of this is that in effect, the religious character of the place of worship existing as at 15 August 1947 is frozen and cannot be altered. This naturally bars by law passed by Parliament in July 1991, to restore the Gyanvapi Temple after removing the existing mosque.
However, the said Act of 1991 is in my legal understanding, unconstitutional. Therefore I have filed a Writ Petition on this issue in the Supreme Court, and would seek either striking down the Act as unconstitutional, or seek the Court to declare Kashi Vishwanath Temple as another exception to the Act. In the Act, Ram Janmabhoomi was declared as the only exception. The ball is back in the Supreme Court. With the blessing of Lord Shiva, I expect to win the case. After this, one temple of special significance for Hindus then remains for restoration: Mathura’s Krishna Janmabhoomi Temple.
Dr Subramanian Swamy is an MP nominated by the President for his eminence as an economist. He is a former Union Cabinet Minister for Commerce and Law & Justice.