Places of Worship Act, 1991, must remain untouched, writes Olav Albuquerque

Places of Worship Act, 1991, must remain untouched, writes Olav Albuquerque

Whether the PWA will be struck down or not, is difficult to predict. What can be inferred from the row kicked up is that India’s secularism is utopian. It is as real as judicial independence which is chimerical. The message sent across is that all minorities within India learn that dissent too needs the consent of the majority. This is the archetypal model of Hindutva.

Olav AlbuquerqueUpdated: Friday, May 20, 2022, 09:43 AM IST
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The short and succinct Places of Worship (Special Provisions) Act, 1991, (PWA) has been reduced to a chimera by stoking controversy over the Gyanvapi mosque-Kashi Vishwanath temple dispute. | File Photo

The short and succinct Places of Worship (Special Provisions) Act, 1991, (PWA) has been reduced to a chimera by stoking controversy over the Gyanvapi mosque-Kashi Vishwanath temple dispute to divert the attention of the people from the fact that the number of jobs created cannot accommodate a burgeoning workforce.

This is precisely why in 2019, the Allahabad High Court ordered a stay on an ASI survey sought by the votaries of the temple dedicated to Lord Shiva because the PWA specifically excluded the Ram Janmabhoomi-Babri Masjid controversy. This law was enacted in 1991 by the Congress government soon after the rath yatra started on September 25, 1990, and culminated at Ayodhya on October 30, 1990, fueling religious passions throughout the country.

This concise law with just eight sections forms part of the basic structure of the Constitution as it is a product of secularism as declared in the preamble. Nevertheless, it has been challenged in the apex court on the grounds that it violates the fundamental right to profess, practice and propagate religion under Article 25 which is a fundamental right available to aliens as well as the citizens of India. Interestingly, the Supreme Court has admitted the petition filed by former BJP spokesperson, Ashwini Upadhyay, who practices law in the Supreme Court and directed the Centre to file its response to the challenge.

The PWA was enacted just before the demolition of the Babri Masjid in 1992 when top politicians Uma Bharti, L.K. Advani who studied law in Mumbai and former chief minister Devendra Fadnavis were present, by their own admission. Fadnavis declared he went to jail for 18 days and faced a lathi charge during the demolition of the mosque at Ayodhya.

But the law has to keep changing with the changing needs of society. This will include the religious sentiments of the Hindu majority which is why Upadhyay has argued that the PWA flouts the fundamental right of judicial review under Article 226 of the Constitution so that the “illegal barbarian acts of invaders, will continue in perpetuity.”

He has cleverly used the raison d’etre of the PWA which is a creature of the preamble to argue that it violates fundamental rights. The Supreme Court not only admitted this petition with related petitions in 2021 but asked the Central government to file its say on Affidavit to the reliefs claimed. Till date, it appears the government has not done so.

But to return to the present, the bench comprising Justices Dhananjay Chandrachud and P.S. Narasimha have both played a major role in the Ayodhya imbroglio. Justice Chandrachud was part of the five-judge bench that delivered the Ayodhya verdict while Justice Narasimha was a senior advocate who led the Ayodhya arguments before the Supreme Court. He was the ninth senior advocate to be elevated from the bar to the bench. He will take over as the 56th CJI on May 3, 2028.

This two-judge bench of Justices Chandrachud and Narasimha has sought to strike a balance between the two warring communities in the Gyanvapi mosque-Kashi Vishwanath temple dispute by ordering the Varanasi district magistrate to ensure the site where the Shivling was reported to have been found, should be protected. Despite repeated pleas by the Anjuman Intezamia Masjid Committee, the two-judge bench refused to stay the survey of the mosque.

This, by itself, does not violate the PWA which only prohibits changing the character of any religious place of worship and thereby ensures that all civil or criminal proceedings which do so directly or indirectly abate. What is disquieting is the fact that the decision of the two-judge bench may be cited as setting a precedent of sorts to allow surveys of mosques that allegedly have remnants of temples within their premises.

Such decisions which do not interpret the law by enunciating a principle on which the decision is given are not reported in the law journals and should normally not be treated as a precedent. Media reports claim the Allahabad High Court has recently admitted petitions challenging the “religious character” of mosques that allegedly have remnants of ancient temples within their premises or in the vicinity.

Such media reports must be verified. Assuming there is some truth, this would contravene subsection 2 of section 4 of the PWA which preserves the religious character of all places of worship within India as they existed on August 15, 1947. And there can be no doubt that the PWA is a product of the basic features of the Constitution as it emanates from Article 25.

There are two million temples distributed throughout the length and breadth of India, some of which have fallen into disuse due to the paucity of shebaits to manage the property vesting with the deity. For, unlike the Abrahamic religions, Hindus are unique in their belief that God resides within the deity, apart from permeating the universe. The gist of the dispute in the Gyanvapi-Kashi imbroglio is that a Shivling was found during a court-ordered survey of the mosque.

Whether the PWA will be struck down or not, is difficult to predict. What can be inferred from the row kicked up is that India’s secularism is utopian. It is as real as judicial independence which is chimerical because the judiciary is dependent on the executive for its infrastructure and salaries which are drawn from the Consolidated Fund of India and of the states.

With changing governments, laws change to suit the convenience of ruling political parties. This is because the laws they enact are tailored to cater to their constituencies. So, the message sent across is that all minorities within India learn that dissent too needs the consent of the majority. This is the archetypal model of Hindutva.

This is why the striking down of the PWA will prove disastrous to the secular nature of this country and catapult India into becoming a theocratic state with an illusion of democracy. This is precisely what a section of the seers and sages want to accomplish by injecting religion into politics and politics into religion.

Proving the Marxian axiom that religion is the food of politicians and the opium of the masses.

(Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay High Court)

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