Qutub Minar case: ASI opposes temple 'restoration' bid; Saket court order on June 9

The Saket District Court in Delhi on Tuesday reserved its order for June 9 on the appeals against a civil judge order dismissing the suit which alleged that the Quwwat-Ul-Islam Masjid situated within Qutub Minar Complex was built in place of a temple complex and sought its restoration. Additional district judge Nikhil Chopra asked the parties concerned to file written submissions within a week.

The court reserved the order on a suit filed by advocate Hari Shankar Jain on behalf of Jain deity Tirthankar Lord Rishabh Dev, claiming that 27 temples were partly demolished by Qutubuddin Aibak, a general in the army of Mohammad Gauri, and Quwwat-ul-Islam Mosque was raised inside the complex by reusing the material.

The Archaeological Survey of India (ASI) opposed a plea saying fundamental rights cannot be availed in violation of any status of the land. The ASI said in an affidavit that alteration of the existing structure is not permissible and submitted that neither Qutub Minar nor any of its parts were under the worship of any community at the time of protection of the monument.

While the government agency, which comes under the ministry of culture, said that there is “no denial of the fact" that there are a number of sculptures existing within the Qutub Minar complex, it will be contrary to the existing provisions and law to allow.

“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 protected one under the Act,” the affidavit reads.

Citing provisions of the Ancient Monuments and Archaeological Sites and Remains Act, or AMSAR Act, 1958, the ASI said that the "intention of the statute is clear that the monument should be protected and preserved in its original condition for the posterity. Therefore, changing and alteration of the existing structure....should not be allowed."

"My submission to the court was that if a place of protection has continued for 800 years without any disruption then that should continue. There is a fundamental right for worship but that is not an absolute right as pointed out by the Supreme Court in several decisions, advocate Subhash Gupta, appearing for the ASI.

The affidavit was in line with clarification from a ministry official who said ASI policies prohibit worship at non-living places.

The Saket court had earlier ordered the ASI not to “remove two idols of Lord Ganesha from the Qutub Minar complex till further orders”. The two idols called ‘Ulta Ganesh’ and ‘Ganesha in cage’ are located in the compound of the 12th-century monument, which Unesco designated a World Heritage Site in 1993.

Opposing an interim application, the ASI said that when the complex was constructed, the material was used in a haphazard manner resulting in images being erected upside down in some places.

“One image of Lord Ganesha is on the lower portion of the wall. Since this is at a lower level, a grill has been provided to prevent any possibility of someone steeping on it. This grill has been there since 2001. Regular painting of the grill is done by the local office of ASI. Another image of Lord Ganesha is found in the complex in an upside-down position. However, this is embedded in the wall, therefore, it may not be feasible to remove or reset the same,” the ASI added.

Jain submitted that the genesis of the case is the "admission of demolition of 27 temples" at Qutub Minar. He told the court that Section 16 of the AMSAR Act, 1958 allows restoration of worship rights, arguing that "once a deity property, always a deity property." Jain said the divinity of a deity never vanishes.