A simmering dispute between the Shias and Sunnis has forced the courts to pull up an apathetic uttar pradesh government for not performing its duty.
By Ajay Agarwal
Shias and Sunnis, the two main sects of Muslims, have always been at loggerheads. Their friction is now subsuming parts of the world and erupting into bloody fighting, killing thousands of innocent people. India, largely peaceful compared to the rest of the world, too has had pockets of disturbances between these two communities. In a small part of UP, Mohalla Doshipura in Varanasi, the schism between them over land issues has simmered for over a century. And there seems little solution to it, with the UP government not showing much enthusiasm in implementing the Supreme Court’s order dated September 23, 1983, favoring the Shias, leading to a festering problem for close to 31 years.
It all started in 1893, when a baradari was constructed by the Shias on Plot No 247/1130 in this mohalla. Eight other plots—Nos 245, 246, 246/1134, 247, 248/23/72, 602, 602/1133 and 603—were situated around this baradari and had structures, such as Zanana Imambara, Imam Chowk, Sabil Chabutra and a mosque—all exclusive properties of the Shia Waqf.
In favour of Shias
These plots are of particular significance for the Shias, numbering close to 4,000 here. During Moharram, the Shias hold majlis (religious discourses) and recitations, take out processions, etc, in these plots. But some of the plots have been a bone of contention between them and the majority Sunnis, who allege that part of the plots was a graveyard.
In 1879, a suit was filed by the Sunnis regarding Plot No 246, but the verdict was in favor of the Shias. The Maharaja of Varanasi too filed a suit against the Sunnis and a decree was passed restraining them from the property. The Sunnis filed another suit directing the Shias to demolish the structure on Plot No 245 and hold the majlis only on the 9th and 12th day of Moharram. The Shias appealed and a trial court rejected the suit of the Sunnis. The Shias right over the property was, thus, confirmed.
It was in January, 1954 that the Shia community approached the Muslim Waqf Board to get the property registered. The Waqf Board declared that the property belonged exclusively to the Shia Waqf. A gazette notification in this regard was issued on January 23, 1954.
However, the issue rose up again when from 1960-1966, the UP administration passed orders restraining the Shias from carrying out religious functions on the occasion of Barawafat. Constant back and forth appeals through the years have reportedly seen the Sunnis trying to claim the said plot, either through encroachments or by alleging that part of the said plot was a graveyard.
Redressal from courts
Aggrieved over these restraints, one Gulam Abbas and two others filed a writ petition in the Allahabad High Court in 1978. In November 1981, the high court decided in favor of the Shias. Its order said: “There is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias entitlement of customary rights over the plots, structures in question. Whatever be the position as regard their titles to the plots or structures, we have already indicated that this decision even upholds their titles to two main structures, Zanana Imambara and Mardana Imambara (Baradari).” It further restrained the Sunnis from interfering with the rights of the Shias and asked the magistrate of Varanasi to take action if these orders were violated.
However, despite this judgment, there were violations. In order to find a permanent solution, a committee with representatives from both the communities was formed under the chairmanship of the divisional commissioner. He submitted his report on December 9 that year, wherein it was opined that shifting of two graves in plot No 602/1133 to the south of the grave of Maulana Hakim Badruddin was feasible.
On September 23, 1983, the high court ordered that a boundary wall 12 feet in height be constructed around some of the plots where the Shias performed their functions and ceremonies. Also, the two graves, when shifted near the grave of the maulana, should have the exact dimension of the old, open spaces. All this, said the high court, should be done under the supervision of the District Magistrate (DM) of Varanasi and in the presence of representatives of the Shias and Sunnis and be completed, preferably before Moharram. It further said that the Shia community would bear the entire cost of the operation. However, the UP government said the task of shifting the graves was stupendous and would lead to a law and order problem. The high court dismissed this and detailed the procedure by which the graves could be shifted.
Flouting the law
On September, 28, 1984, the high court passed an interim order before Moharram restraining the Sunni community from going to any of the eight plots (except Plot No 246 on which the mosque stands) or the structures there for performing any religious practices. But this order was violated from December 7-9 that year when the DM granted permission to the Sunni Community to perform two rituals—reading Fatiha and laying Chaddar—at the grave of Hakim Badruddin. The high court slammed the UP administration and said the apparent encroachment could be the result of a lack of proper understanding of the court’s order or due to its misinterpretation on the part of concerned authorities. It also came down heavily on the Sunni community and said it had no right whatsoever over the eight plots. Further, it told the DM and the police not to misunderstand the said order and carry it out in letter and spirit.
However, in an order dated March 7, 1986, the high court said that instead of cordoning the two graves (of two persons called Lal Mohammad and Shakina), they should now be permanently enclosed on all sides with a brick wall and sealed off. The wall should be constructed by the state government at its expense within four months from this order. It also said that the compound wall or wire fencing surrounding the open space in the remaining plots (except Plot No 246 where mosque stands) be deferred and the Shia community could withdraw the Rs. 1,32,250 deposited by it.
Not happy with the orders of the Allahabad High Court, the Sunnis filed a writ petition in the Supreme Court in 1983. But here too, they were found wanting. In the Abdul Jalil & Ors vs State of UP & Ors, case, the Supreme Court lambasted their attempt to review an earlier apex court decision, where the case was dismissed. It said the attempt of Sunnis to portray the shifting of the two graves as a desecration sounded ironical when they themselves had denied similar rights to Shias.
It further stated that the decision to shift the graves was in the interest of maintaining public order. It said exhumation of a body for the purpose of crime detection was applicable to all, irrespective of personal law governing the dead. It cited two historical instances of such grave removal: the grave of Mumtaz Mahal was removed from Burhanpur to Taj Mahal in Agra and the grave of Jahangir was removed from Kashmir to Lahore. It criticized the Sunnis for not staggering their ceremonies during Moharram to avoid a conflict with those of the Shias. Saying this, the Supreme Court dismissed the Sunni petition on November 15, 1983.
Flak from judiciary
But it was the UP government that came in for criticism for its lax attitude. The Supreme Court advised it in 1984 that there was no problem in carrying out the graves’ shifting as per its 1983 order. Technical difficulties in doing so, said the court, could be surmounted by first dismantling the stony super structure of the graves to the proposed site and then digging the bones and putting them in the new graves. It questioned the UP government’s statement that four shops near the place, where the graves were to be shifted, were 15-20 years old. It said that a survey had revealed that this was not true and that the plot had been vacant. It categorically said the shifting of the graves should be undertaken without delay and that Sunnis should not interfere or obstruct the operation.
While this problem has festered, it has also acquired political overtones, with the victory of Modi in Varanasi being seen partly due to Shia’s support there. Mulayam Singh Yadav has realized the importance of catering to the Shias. One hopes that all these will bring about some settlement between the two communities on the contentious issue.
1879: A suit with regard to Plot No 246 in Mohalla Doshipura of Varanasi decided in favor of the Shias
1893: A baradari was constructed on Plot 247/1130 by the Shias. There were eight other plots—Nos 245, 246, 246/1134, 247, 248/23/72, 602, 602/1133 and 603—near it.
The Sunnis filed suit directing the Shias to demolish structure on Plot No 245 and hold the majlis only on the 9th and 12th day of Moharram.The Shias appeal and the trial court rejects the suit of the Sunnis
January 1954: The Shia community approaches Muslim Waqf Board.
1960-1966: UP administration passes orders restraining the Shias from carrying out religious functions.
1978: One Gulam Abbas and two others file a writ petition in the Allahabad High Court over the right of the Shias over these plots.
November 1981: High court decides in favor of the Shias.
1983: The Sunnis file writ petition in Supreme Court; SC lambasts them.
September 23, 1983: HC orders a boundary wall be constructed around some of the plots where the Shias
performed their functions and ceremonies; UP government contends that the shifting of graves would lead to a serious law and order situation.
November 15, 1983: SC dismisses the Sunni petition
September, 28, 1984: HC passes an interim order before Moharram restraining the Sunni community from going to any of the eight lots.
December 7-9, 1984: DM grants permission to Sunnis to perform two rituals at the grave of Hakim Badruddin.
March 7, 1986: HC says the two graves of Lal Mohammad and Shakina be permanently enclosed on all sides with a brick wall and sealed off.
Early September: Case coming up in the SC.