Plea to restore Qutub complex temples: Court says ‘fundamental question is character of building’

Additional District Judge Nikhil Chopra reserved his order in a plea which challenged a lower court’s order dismissing an application filed by Hindu deity Lord Vishnu, Jain deity Tirthankar Lord Rishabh Dev and others seeking restoration of 27 Hindu and Jain temples with respective deities in the Quwwat-Ul-Islam mosque complex at Qutub Minar.

Listing the matter for June 9, the court said “the most fundamental question is of the character” since the ASI has argued that the character of the mosque was frozen after it came under protection of the Ancient Monuments and Archaeological Sites and Remains Act (AMASR) Act, 1958, while the petitioners had claimed that the religious character must be considered since this was a temple.

On November 29, 2021 a civil judge had dismissed the plea seeking restoration of the 27 temples, saying that India had a rich history and was ruled by numerous dynasties but wrongs committed in the past “cannot be the basis of distributing peace of our present and future.”

The petitioner in this case, advocate Hari Shankar Jain, began his arguments on Tuesday by stating that the Quwwat-Ul-iIlam mosque was constructed after 27 temples were demolished and that in the past 800 years, no prayers have been offered at the mosque.

Stressing that the petitioner just wanted restoration of deities and conduct pooja and not “demolish anything”, he submitted, “When there was a temple in existence much before the mosque, why it can’t be restored ?”

The judge said, “What is the legal right? Assuming it was invaded, demolished, some structure raised, let us assume it was not being used by Muslims. What is the important question is, can you now claim it to be restored under what basis? Now you want this monument to be turned into a temple calling it restoration, my question is how would you claim that the plaintiffs have a legal right assuming it existed about 800 years back?”

Relying on section 16 of the AMASR Act, Jain told the court, ” If it is a Hindu temple, why it can’t be permitted for that? The law says so. Once a deity property, it’s always a deity property. It will survive for ever. Deity will never vanish. The divinity of a deity never vanishes. After demolishing of a temple it will not lose it’s character, divinity or sanctity.”

The court, in a lighter vein said, “Deity is surviving for last 800 years without worship. Let it survive like that”.

The court said that the “existence of idol is not in dispute” and put forward a question to the petitioner, “Whether right to worship is an established right, whether it’s a constitutional or any other right? And what all remedies, if any, are available with this right?”

Jain told the court that there was a “denial of constitutional right” and he he a right to worship under Article 25 of the Indian Constitution.

“There are a number of temples in India, thousand years old. Just like that pooja can be performed here also. Learned lower court hasn’t decided my right. Judgment is erroneous,” Jain submitted.

Jain argued that whether he has the right or not can be decided only during the judicial process and not at the stage of appeal, like it was done by the trial court.

“It is the religious character. Once a temple always a temple, right of deity can never be lost. This is the determination of character…Can there be a mosque after demolishing a temple, that is the paramount question,” Jain submitted.
Rebutting the petitioner’s arguments, Advocate Subash C Gupta appearing on behalf of Archaeological Survey of India (ASI) told the court that there are no grounds for interfering with the judgment of the lower court. “Character of a place is determined on the date when monument comes under purview of AMASR Act. The character once frozen as that in the monument cannot be changed.”

Gupta relied on a Delhi High Court judgement which stated that, “Character of monument whether it can be allowed or not allowed for worship is determined on the day when monument comes under protection.” He told the court that once the monument comes under protection then there is also a 60-day period for anyone to file their objections and it is for “this very reason, we have several monuments in our country which are and which are not places of worship.”

Rebutting Jain’s arguments that he had a fundamental right, Gupta said, “Yes, fundamental right exists but it’s not absolute and therefore court has found that this right is not available in this case.”

Gupta said that the inscriptions on the Quwwat-Ul-Islam mosque state that the “mosque was built with the remains of 27 temples but nowhere is it mentioned that the material for construction were received by demolishing temples.”

The ASI had also filed a reply in this case by stating that even though it is a fact that architectural images of Hindu and Jain deities were used in the construction of the Qutub Minar complex, revival of worship cannot be allowed there as it was “not practised at the time of protection of the monument” and a “fundamental right cannot be availed in violation of any status of the land”.

“Fundamental right cannot be availed in violation of any status of the land. The basic principle of protection/conservation is not to allow starting of any new practice in a monument declared and notified as a protected one under the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act, 1958. Revival of worship is not allowed wherever it is not practised at the time of protection of a monument,” the ASI submitted.

The ASI stated that there are a number of sculptures existing within the Qutub Minar complex but it would be “contrary to the provisions of the AMASR Act, to agree with the contention of the respondents or any other person claiming a fundamental right to worship in this centrally protected monument”.