Why the Supreme Court must uphold the sanctity of the Places of Worship Act, A L I Chougule explains

In the midst of surging Covid-19 cases and the heat and dust of state elections that have occupied most of the media’s attention over the last one-and-a-half months, two news reports that did not get adequate attention in mainstream media are related to the Gyanvapi mosque-Kashi Vishwanath temple dispute and the Places of Worship (Special Provision) Act, 1991.

In the Gyanvapi mosque order of April 8, a local court in Varanasi allowed a survey of the entire mosque complex, adjacent to the Kashi Vishwanath temple by the Archeological Survey of India to find out “whether the religious structure standing at the present and disputed site is a superimposition, alteration or addition, or there is structural overlapping of any kind”. In the case of Places of Worship Act, the Supreme Court has asked the Centre to respond to a plea challenging the 1991 law.

Besides these two recent developments, another court had earlier admitted a petition to hand over the Shahi mosque in Mathura to those claiming it was the birthplace of Krishna. There is one more petition admitted by a lower court seeking the handover of temples allegedly destroyed to build the Qutub Minar complex in Delhi.

These petitions and the Gyanvapi order, combined with the Supreme Court’s willingness to entertain a plea challenging Places of Worship Act, may open another communal front in India when it was presumed that all religious disputes had come to an end, with the Supreme Court judgment on the Ram temple.

Letting in more litigation

In agreeing to re-examine the 1991 Act that was passed by the Parliament to close the doors for legal dispute in various places of worship across the country, including Mathura and Kashi, the Supreme Court may once again open the doors for litigation. Passed in 1991 by the P V Narasimha Rao-led government, the law seeks to maintain status quo on the “religious character” of places of worship as it was in 1947, except in the case of Ram Janmabhoomi-Babri Masjid dispute, which was already in court.

The law was brought in at the peak of the Ram mandir movement, a year before the Babri mosque was demolished. Introducing the law, then Home Minister S B Chavan said in Parliament that the law was “adopted to curb communal tension” in the country in the wake of the Ram temple movement.

The court’s decision to revisit the law at a time when polarisation is rising is a recipe for stoking communal tension. The clause declaring the objective of the law describes it as “an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto”. Sections 3 and 4 of the Act declare that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947, and that no person shall convert any place of worship of any religious denomination into one of a different denomination or section.

Section 4(2) of the Act says that all suits, appeals or other proceedings regarding converting the character of a place of worship, that were pending on August 15, 1947, will stand abated when the Act commences and no fresh proceedings can be filed. In other words, the Act is unambiguous about all disputes regarding places of worship and no claim should be made to reclaim or change their religious character.

Violation of Act

This means the local court order on Gyanvapi mosque and the petitions related to Shahi mosque in Mathura and Qutub Minar complex in Delhi not only violate the Places of Worship Act but also go against the observation made by the Supreme Court in its 2019 Ayodhya judgment. In the Ayodhya verdict, the Constitution bench, led by then Chief Justice Ranjan Gogoi, referred to the Places of Worship Act and said that it manifests the secular values of the Constitution and strictly prohibits retrogression.

The court further observed that “in providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered. The law addresses itself to the State as much as to every citizen of the nation”.

Not surprisingly, the law was opposed by the BJP when it was introduced in Parliament, arguing that the Centre had no power to legislate on ‘pilgrimages’ and ‘burial grounds’ which is under the state list. However, the government had said it would make use of its residuary power under Entry 97 of the Union List to enact the law.

Now the law has been challenged: Delhi BJP leader and advocate Ashwini Upadhyaya has contested it on the grounds that it violates secularism. He has also argued the cut-off date of August 15, 1947, is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists and Sikhs from approaching courts to “reclaim” their places of worship which were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.

Undermining its own verdict

The Supreme Court’s decision to admit, rather than dismiss the petition challenging the 1991 Act is strange because a larger bench had upheld the law’s relevance as recently as 2019. If the court reopens the Places of Worship Act now, it will mean undermining an essential element of its 2019 Ayodhya verdict.

The past cannot be righted by inflicting wrongs on history. But the problem with history seems to be that it is everyone’s discipline and everyone feels entitled to speak about it, unlike other disciplines like physics, mathematics, chemistry, economics or sociology, which need a lifetime to master. History has no complete heroes but rulers and we often tend to view them as only “good” and “bad” people associated with a particular religion, and not as rulers whose actions were guided by complex considerations. Unless we embrace history just as it is, we will end up having a thousand quarrels with the past for political gains in the present.

History is replete with tales of conquests and destruction, as also construction. Conversion of religious places of worship has happened both ways. But the attempt to keep history tied to a singular pole of religion is to simplify a complex subject and its socio-political contexts. As long as we keep looking back for historical “wrongs”, there is not going to be an end to litigation to right past “wrongs”. The Places of Worship Act makes it criminal to attempt religious takeovers. The Supreme Court should uphold the sanctity of the 1991 Act and not allow the lower courts to ignore it. Otherwise, India will end up having perpetual communal conflicts with disastrous consequences.

The author is an independent senior journalist

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