Court Asks Archaeology Body To Clarify On Allowing Prayers In Protected Monuments

The Delhi High Court on Thursday asked the Archeological Survey of India (ASI) to clarify its policy on allowing prayers by devotees in religious places located inside protected monuments.

The court was hearing a petition against the stopping of prayers by devotees inside the Mughal Mosque which, according to ASI, falls within the category of protected monuments on account of being part of the Qutub complex.

Counsel for the ASI said according to his understanding, "there is no question" of permitting prayers in protected monuments.

Justice Prateek Jalan however said the lawyer's statement was "perhaps overboard" and asked him to clarify the ASI's position.

"We will hold ASI to it.. that in all protected monuments all over the country no worship is permitted by any religion. There can't be different rules for different monuments for different religions unless it is backed up by law.. Let us understand the policy," the court said.

"Let me take instructions on that," the ASI counsel said, adding in the instant case, no prayers were ever offered inside the Mughal Mosque ever since it was declared a protected monument.

The managing committee of the mosque, which was appointed by the Delhi Waqf Board, had approached the high court last year with the grievance that the officials of the Archaeological Survey of India completely stopped the offering of namaz in the mosque on May 13, 2022 in an "absolutely unlawful, arbitrary and precipitous manner".

Advocate M Sufian Siddiqui said prayers were being offered inside the mosque on a regular basis until last year when the ASI stopped the practice without any notice.

The counsel for the Delhi Waqf Board said as per the law pertaining to ancient sites, offering of prayers cannot be stopped in a religious place after it has been taken over by the authorities on the ground of being an ancient monument.

The court asked the ASI to produce before it the record available with respect to the issuance of a notification declaring the mosque as a protected monument in 1914.

It also orally observed that if a statute provides for continuation of prayers in a protected monument, it has to continue.

The court said it is to be examined if the Mughal Mosque was part of the protected area and whether offering prayers there is liable to be prohibited.

In the course of the hearing, the ASI counsel also said the Mughal Mosque was distinct from Quwattul Islam Mosque, which is the subject matter of a suit before a lower court here in Saket.

The plea, pending before a Saket court, has prayed for restoration of Hindu and Jain deities inside the Qutub Minar complex claiming that 27 temples were partly demolished by Qutubdin Aibak, a general in the army of Mohamad Gauri, and Quwwat-ul-Islam Mosque was raised inside the complex by reusing the material.

Being in the same complex, any determination on right to pray in the Mughal Mosque will, however, have a bearing on Quwattul Islam Mosque as "there is no question of worship by either communities in either of the mosques," the ASI counsel added.

In its reply to the petition, the Archaeological Survey of India (ASI) has said that the mosque in question comes within the boundary of Qutub Minar and is thus within the protected area, and offering of prayers cannot be permitted there.

The ASI has cautioned that allowing prayers in Mughal mosque will "not only set an example but it may impact other monuments too".

"Qutub Minar is a Monument of National Importance and a UNESCO World Heritage Site. It is submitted that it is not a place of worship. Since the time of its protection the monument or any part of it has not been used for any type of worship by any community. It is submitted that the Mosque in question comes within the boundary of Qutub Minar Complex," the reply added.

The petitioner has asserted that the mosque is not "protected" and is outside the fenced area. It is also at a distance from the Quwwatul Islam Masjid and that there is overwhelming evidence to prove that the mosque was under religious use and regular prayers were being held there when the other structures in adjacent area were declared as centrally protected monuments, the petitioner has said.

The petition has sought restraining the authorities from causing any obstruction or interference in the performance of 'namaz' at the mosque in question which is a waqf property notified as 'Masjid adjacent to Eastern Gate of Qutab Minar, Mehrauli' in Delhi Administration's Gazette Notification.

The matter will be heard next in October.

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