The Hon’ble Supreme Court after delivered the much-awaited and sensitive judgment in 2019, which is as, knows Ram Janmabhoomi temple case. It was hoped that it would settle the long-decade dispute once and for all, the people of India accepted it peacefully. However, within nine months of the Ayodhya judgment, in which the Supreme Court had hailed the Places of Worship Act, the 1991 Act was questioned. The court has admitted petitions challenging the constitutionality of the 1991 Act.
On the other hand, 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”.
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. One more petition was admitted by a lower court seeking the handover of temples allegedly destroyed to build the Qutub Minar complex in Delhi. Many fear that the admission of the petition would reopen old wounds that were sought to be healed by the provisions of the Act.
It was pointed out that Hindutva forces would now target the Kasi and Mathura mosques, and the ruling government will be under tremendous pressure to repel the Act. The Supreme court’s inclination to open judicial discussion will open a new Pandora of trifle. Here we will discuss the necessities of the place of worship Act and its relevancy in the Indian context.
Statutory provisions of the act
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 declared 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) 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 very clear about all disputes regarding places of worship and no claim should be made to reclaim or change their religious character.
The Act specified that nothing contained in the statute shall apply to the place of worship which was the disputed structure at Ayodhya and to any suit, appeal or other proceedings related to it.
Cause of disagreement
Delhi BJP leader and advocate Ashwini Upadhyaya has challenged the law & filed the petition before the Hon’ble SC on various grounds-
He has challenged the validity of Sections 2, 3, 4 of the Places of Worship (Special Provisions) Act 1991, which not only offend Articles 14, 15, 21, 25, 26, 29 but also violates the principles of secularism, which is an integral part of Preamble and the basic structure of the Constitution.
He contended that the Centre, by making impugned provisions in 1991, has created arbitrary, irrational retrospective cutoff date, declared that character of places of worship and pilgrimage shall be maintained as it was on 15.8.1947 and no suit or proceeding shall lie in Court in respect of the dispute against such proceeding and it shall be so abated. If suit/proceeding filed on the ground that conversion of place of pilgrimage has taken place after 15.8.1947 and before 18.9.1991 that shall be disposed off in terms of S. 4(1). Centre has barred the remedies against the alleged conversion of the places of worship and thus, Hindus Jains Budhists Sikhs cannot file suit or approach High Court. Hence, they won’t be able to restore their places of worship.
In addition, it was argued that the law per se “unconstitutional on the ground that the impugned provisions cannot be implemented with retrospective effect and the remedy of resolution of dispute pending, arisen or arising cannot be barred.” “Centre has transgressed its legislative power by barring remedy of judicial review which is basic feature of the Constitution. The right to judicial remedy cannot be taken away by State and power of courts, and particularly constitutional courts conferred under Article 32 and 226 cannot be frustrated and such denial has been held violative of basic structure of the Constitution and beyond legislative power”.
The petitioner stated, “places of worship and pilgrimage is a State subject [Entry-7, List-II, Schedule-7]. Hence, Centre cannot make such law.”
The Centre must respect International Conventions which state that citizens have a right to restore damaged places, which were done when India remained under slavery from 1192 to 1947. The retrospective cutoff-date 15.8.1947 was fixed to legalise the “illegal” acts of barbaric invaders and foreign rulers, the PIL added.
The main argument was that “Sections 2,3,4 not only offend right to pray practice prorogate religion (Article 25), right to manage maintain administer place of worship and pilgrimage (Article 26) and right to conserve culture (Article 29) but also contrary to the duty to protect historic places (Article 49) and preserve religious-cultural heritage (Article 51A). Pilgrimage is State subject [Entry-7, List-II, Schedule-7] hence, Centre neither can restrain Hindus Jains Budhists Sikhs from taking over complete possession of places of worship & pilgrimage through judicial process nor can make law to abridge the rights, guaranteed under Articles 25-26 and particularly with retrospective effect.”
The Supreme Court’s decision to accept the petition instead of rejecting it ambiguous because a larger bench (5-0) already upheld the importance of the Place of worship Act recently as 2019. If the court opens the legality debate now, it will undermine the verdict of Ayodhya judgement. The wounded past cannot be righted by inflicting wrongs on history.
Jamiat Ulama-i-Hind opposes the plea in SC
Contrary, Jamiat Ulama-i-Hind, a Muslim organization, opposed the plea and filed a petition in SC. In its application, the organization said that if the said petition is entertained it will create fear in the minds of the Muslim community. The application by Jamiat Ulama-i-Hind raised relies on the principles of secularism.
"...even issuance of notice in the present matter will create fear in the minds of the Muslim Community with regard to their places of worship, especially in the aftermath of the Ayodhya Dispute and will destroy the secular fabric of the nation." They highly relied on M. Siddiq Judgment. In the later part of the article, we will discuss it broadly.
Opinion of Judiciary
In the 2019 Ayodhya verdict, which is M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 (M. Siddiq Judgment), the Constitution Bench led by former Chief Justice of India Ranjan Gogoi referred to the law and said it manifests the secular values of the Constitution and strictly prohibits retrogression.
To quote the bench in M. Siddiq:
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. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution…Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.
The Supreme Court remarked that the law has been enacted to fulfill two purposes:-
First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered.
Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947 when India achieved independence from colonial rule. These purposes have been recognized by this Hon’ble Court in its recent judgment of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 at para 92 (pg. 247).
In M. Siddiq, the Supreme Court cited former MP Malini Bhattacharya, who explained the significance of the cut-off date thus:
…this August 15, 1947 is crucial because on that date we are supposed to have emerged as a modern, democratic and sovereign State thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves…as State which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date there should be no such retrogression into the past”. (Emphasis supplied by the bench)
In paragraph 82 of M. Siddiq, the bench observed:
The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasises human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity…
The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future. [para 103 at pg. 251 of the M. Siddiq Judgment]
The court took serious exception to the judgment of Justice D.V. Sharma of the Allahabad High Court wherein he had held, “Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognised before coming into force of the Act.” The Supreme Court declared that this is directly contrary to Section 4 of the Act.
Necessities of the PWA Act
The Story so far is not limited here. When the Babri Masjid-Ram Janmabhoomi dispute was at its peak in the early 1990s, various Hindu organization such as Vishwa Hindu Parishad (VHP) laid claim to two other mosques — the Gyanvapi mosque in Varanasi and the Shahi Idgah in Mathura. Besides these two mosques, they often claim and demanded 3000 mosques across the country. They threatened to start agitations only with respect to these two places of worship. In this debacle situation, P V Narasimha Rao-led Congress government enacted, in September 1991, a special law to freeze the status of places of worship as they were on August 15, 1947. The law purposefully exempted the disputed structure at Ayodhya out of its purview mainly because it was the subject of prolonged litigation. It was also aimed at providing scope for a possible negotiated settlement.
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. Those who now criticise the imposition of an “arbitrary” cut-off date to bar conversion of any place of worship must read the full sentence & background to understand why it is significant.
If the law became set aside, it would open floodgates of litigation against countless mosques in the country, and the religious divide from which the country is recovering in the aftermath of the Ayodhya dispute will only be widened.
We have to accept the Supreme Court's opinion, but the impact is severe, and it may undermine our efforts to assure the general public, especially Muslims. What is worse can be! The country will be again stuck debate, and news media will be busy discussing Temple-Mosque. The passage opened by the final declaration is vast and endless even though we must balance ourselves in order to stabilize the ship of State.
Submitted by Sk Sahid Ahamed
College- Surendranath Law College (Calcutta University)
Course- B.A.LL.B, 2nd year