Supreme Court Stays ASI Survey of Gyanvapi Structure: Whither Procedure?

On 24 July, an urgent mentioning was made in the Supreme Court before the bench headed by the Chief Justice of India D Y Chandrachud regarding the ASI Survey of the Gyanvapi Mosque directed by the Varanasi District Court on 21 July.

Committee of management Anjuman Intezamia approached the Supreme Court against the District Court order.

The Supreme Court put a hold on the District Court's order allowing the Archaeological Survey of India (ASI) survey.

The process for the same, however, has raised doubts about whether established procedures were followed while adjudicating on the petition or if they were disregarded altogether.

Directly Approaching Supreme Court

The petitioners in the present matter directly approached the Supreme Court against the District Court order.

At the outset, it has to be made clear that the Supreme Court has all powers to directly entertain a petition even when an alternate efficacious remedy is otherwise available to the party approaching it.

However, the settled law laid down by the Supreme Court in such matters is that when you have a remedy available at a lower forum, then you are required to first exhaust the same and only then approach the Supreme Court.

The Supreme Court does not interfere with the orders of a lower court, unless the matter is of ‘exceptional importance’ or involves a ‘substantial question of law’.

However, if both of these are not available, then the Supreme Court has not authority to entertain a petition directly challenging a lower court’s order.

We have to settle with the fact that the Supreme Court considered the present matter to be of ‘exceptional importance’, while deciding it directly, as no ‘substantial question of law’ was decided by the Supreme Court.

During the course of the hearing, the CJI inquired from the Solicitor General Tushar Mehta to take clarity about the situation from ASI.

The Solicitor General after contacting the ASI officials informed that there will be no efforts to carry out any excavation at least for one week.

He submitted that only measurements, photography and radar imaging would be carried out.

Mehta argued that there is no need to stay the order of the District Court as firstly, the petitioners have approached the Supreme Court directly defying the established procedure and secondly, only radar imaging is to be done for a week. Therefore, there is no need to pass any directions as of now.

However, the CJI stated that the order of the District Court allows the ASI for excavation, and thereby disregarding submission of the Solicitor General that no excavation would be carried out for a week, the CJI thought that it would be fair to stay the ASI survey altogether.

What Could Have Been Done

Considering that the matter was of ‘exceptional importance’ to the Supreme Court bench, it could have simply directed the petitioners to approach the High Court and to secure the petitioner, direct the Allahabad High Court to take up the matter as soon as possible.

The Solicitor General had already submitted on record that not a brick of the structure has been touched or will be touched for at least one week.

However, the Supreme Court disregarding the established procedure, stayed the ASI Survey till 26 July and also directed the Allahabad High Court to list the matter before.

In a matter, wherein the maintainability of the petition directly in the Supreme Court was questionable, the CJI headed bench even went on to extraordinary extent while granting relief to Anjuman Intezamia.