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THE CONTEXT: An appeal against the video survey of Varanasi’s Gyanvapi mosque has resurfaced the debate surrounding the Places of Worship Act, 1991. The issue has yet again resurrected the debate related to the credibility of religious institutions and infrastructures and their position in secular India.In this article, we analyse how the Places of Worship Act secures the secular nature of our democracy from the UPSC perspective.
THE PLACES OF WORSHIP (SPECIAL PROVISIONS) ACT, 1991
The 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.
- It extends to the whole of India except the State of Jammu and Kashmir.
- The provisions of sections 3, 6 and 8 shall come into force at once and the remaining provisions of this Act shall be deemed to have come into force on the 11th day of July 1991.
- “Place of worship” means a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called.
Key Provisions:
- Section 3: No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.
- Section 4:
o Section 4(1): declares that the religious character of a place of worship “shall continue to be the same as it existed” on August 15, 1947.
o Section 4(2):It declares that all litigation, appeals, or other proceedings ongoing before any court or authority on August 15, 1947, involving converting the status of a place of worship, will cease as soon as the law takes effect. There will be no more legal action taken.
Key Exceptions:
- Section 5:The Act also does not apply to the place of worship commonly referred to as Ram Janmabhoomi-Babri Masjid in Ayodhya. This law will have an overriding effect over any other law in force.
- Ancient and historical monuments and archaeological sites and remains that are covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 are beyond its purview.
RESURGENCE OF THE PLACES OF WORSHIP ACT, 1991
CONTEXT
GENESIS OF GYANVAPI MOSQUE
DEVELOPMENTS/EXPLANATIONS
- Gyanvapi mosque is located in Varanasi, Uttar Pradesh. It is a stone’s throw away from the Kashi Vishwanath temple, built in 1780 by Ahilyabai Holkar, the Queen of Indore.
- Kashi Vishwanath is a prominent temple dedicated to the Hindu deity Shiva. Recent petitions claim that the Gyanvapi mosque lies on the remains of the ‘original’ Kashi Vishwanath temple.
- Under the reign of Mughal Emperor Akbar, priest Narayan Bhatta rebuilt the Vishweshwara temple in the 16th century. It is believed that in the late 17th century, around 1669, the temple was once again razed on the orders of Mughal Emperor Aurangzeb.
EMERGENCE OF THE GYANVAPI CONUNDRUM
THE CASE OF FLOUTING ORDERS OF A SUPERIOR COURT
- In December 2019, barely a month after the Ayodhya verdict, a fresh petition was filed at a Varanasi Civil Court seeking an archaeological assessment of the Gyanvapi mosque’s origins.
- In 2020, the 1991 petitioners approached the Civil Court in Varanasi to hear the original petition again.The proceedings were stayed by the Allahabad High Court in February 2020, it reserved Judgement on the matter in March 2020.
- Then, despite the stay, the matter was reopened by a Varanasi Civil Court in April 2021, Fast Track Court Civil Judge (Senior Division) Ashutosh Tiwari ordered an Archaeological Survey of India investigation into the mosque’s origins.
- Allahabad High Court came down heavily on the Civil Court for proceeding despite the High Court reserving Judgment on the matter.
CLAIMS AND CONCERNS OF THE HINDU SECT
- Within Holkar’s, Kashi Vishwanath temple is a statue of Nandi, the sacred bull companion of the Hindu deity Shiva. Typically, in Hindu temples, the Nandi statue faces the shiv lingam, a cylindrical monolith representing Shiva.
- In this case, it faces the Gyanvapi mosque bolstering Hindu claims that a Vishweshwara temple once stood in its place and that a shiv lingam is hidden within the mosque’s premises.
- This led to petitions filed by Hindus from 1991 to 2022 requesting permission to pray within its premises. Informal video surveys further identify the Hindu features and motifs that are part of its masonry and structure.
CLAIMS AND CONCERNS OF THE MUSLIM SECT
- Proponents of the Islamic sect suggest that what matters in law is the status of the Gyanvapi mosque on August 15, 1947.
- Its status as a mosque and a waqf were noted by a judgment of the Allahabad high court (AIR 1942 Allahabad 353, Din Mohammed and Others. vs Secretary of State).
- Also, any change in the status of the mosque will amount to flouting of law under the Places of Worship Act, 1991.
- By conducting such investigations into religious sites, the courts have, like they did in the case of Babri Masjid, legitimized the values of an anti-modern polity. They have acted against the values that they are supposed to uphold. Courts cannot be acting on claims of mythology or those of medieval capture.
THE PLACES OF WORSHIP ACT, 1991: COMPARISON OF ARGUMENTS
PROPONENTS OF THE HINDU SHIVA TEMPLE
- Petitioners argue that the law is impotent for delivering justice against the barbarism inflicted on religious institutions, culture and architecture before independence.
- Proponents of this group argue that the demolition of a temple’s structure and subsequent offerings of namaaz did not change the character of land where once a temple stood.
- It is a historical fact that in 1192 the invader Mohammad Ghori after defeating Prithviraj Chauhan established Islamic rule in India and foreign rule continued up to August 15, 1947, thereafter.
- Therefore, any cutoff date in the Places of Worship Act, 1991, could be the date on which India was conquered by Gori and the religious places of Hindus, Jains, Buddhists, and Sikhs, as were existing in 1192, have to be restored with the same glory.
PROPONENTS OF GYANVAPI MOSQUE
- The Muslim bodies, such as the Jamiat Ulama-i-Hind, have countered that a dent in the Places of Worship Act, of 1991 would be the first blow to the secular fabric.
- The Muslim body stressed that the Ayodhya verdict, which upheld the Places of Worship Act, had noted that “historical wrongs cannot be remedied by people taking the law into their own hands”.
- Thus, the status of the Mosque should be preserved as it is presented so as to avoid public upsurges in the name of religion.
- The philosophical and practical understanding of the Places of Worship Act 1991, suggests that the nature of our architectural sites in present times cannot be entertaining mythology or medieval warfare.
- By ordering a survey of the Gyanvapi Mosque, the courts have done exactly the opposite of this inherent idea of the Places of Worship Act 1991.
VIEWS OF THE SUPREME COURT ON ‘PLACES OF WORSHIP ACT, 1991
- In the Ayodhya judgment, the Supreme court categorically held that the law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course that history has taken.
- The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution.
- The law (Places of Worship Act, 1991) is a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution.
- Under the 1991 Act, the Supreme court views that one cannot change a mosque or a church into a Hindu temple, or vice-versa; however, there’s nothing to stop one from trying to find out whether a building is a mosque or a church or a temple.
- Justice Chandrachud is of the opinion that the ascertainment of the religious character of a place as a procedural instrument may not necessarily fall foul of the provisions of Sections 3 and 4 of the Act of 1991.
- The State has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism, which is a part of the basic features of the Constitution.
THE GROUNDS FOR THE CHALLENGING PLACES OF WORSHIP ACT, 1991
Along with other petitions in line, BJP’s Rajya Sabha MP from UP, Harnath Singh Yadav, has submitted a private member’s bill with the Rajya Sabha secretariat seeking to repeal The Places of Worship (Special Provisions) Act, 1991.
It is argued by the ruling party that the 1991 Act not only violates fundamental rights such as the right to equality and the right to life but also infringes on citizen’s constitutionally guaranteed right to religious freedom in the following manner:
PROVISIONS OF THE ACT BEING CHALLENGED
- Section 3 of the Act criminalises ‘conversion’ of a place of worship for one religion or sect into another.
- Section 4 bars filing any suit or initiating any other legal proceeding for the conversion of the religious character of any place of worship, as existing on August 15, 1947.
- Various petitions contend that the choice of date adversely impacts Hindus, Sikhs, Jains and Buddhists. From 1192 onwards, Muslims and the British ruled India and destroyed temples.
- Section 5 of the Act excludes its application to the site known as ‘Ram Janam Bhumi’ or ‘Babri Masjid’.
- It also bars Courts from determining whether any place of worship has been converted after August 15th 1947.
ISSUES WITH RIGHTS & EXCLUSIONS
- Freezing the date in 1947, does not allow these communities to restore their places of worship. This violates Articles 14 and 15 which guarantee equality, and the right to religious freedoms under Articles 25, 26 and 29.
- It offends the right of Hindus, Jains, Buddhists, and Sikhs to pray, profess, practice and prorogate religion (Article 25).
- The Act infringes on the rights of Hindus, Jains, Buddhists, and Sikhs to manage, maintain and administer the places of worship and pilgrimage (Article 26)
- The Act further deprives Hindus, Jains, Buddhists, and Sikhs to take back their places of worship and pilgrimage connected with their cultural heritage (Article 29)
- Sections 3 and 4 of the Act have virtually taken away the right to approach the Court and thus the Right to Judicial Remedy (Article 32) has been closed.
- Some petitioners have argued that ‘Hindus’ are fighting for the restoration of the birthplace of Lord Krishna for hundreds of years with peaceful public agitation, but by enacting the Act, the Centre has excluded the birthplace of Lord Ram at Ayodhya but not the birthplace of Lord Krishna in Mathura, though both are the incarnations of Lord Vishnu- the creator.
- Thus, the exclusion of the birthplace of Lord Krishna in Mathura becomes a challenge in the act.
- Thus, the Act bars judicial review which is a basic structure of the Constitution and cannot be taken away. It also violates the principle of secularism which is a basic feature (Article 13).
WHY PLACES OF WORSHIP ACT, OF 1991 IS FOUNDATION OF SECULAR DEMOCRACY?
The inherent purpose of the Places of Worship Act, of 1991, was the preservation of the religious character of places of public worship at India’s independence. For a complex democracy like ours, it becomes an imperative to ensure the healing of 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.It is necessary to adopt such a law in view of the controversies arising from time to time with regard to the conversion of places of worship which tend to vitiate the communal atmosphere.
Keeping the above-mentioned aspects in mind, the Parliament must retain the Places of Worship Act without amending or repealing it.
THE WAY FORWARD
- In the Ayodhya judgment, the court had categorically held that the law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course that history has taken. The courts of today cannot take cognisance of historical rights and wrongs.
- The Supreme Court has reiterated the principle of non-retrogression in a number of cases. The non-retrogression principle holds that government may extend protection beyond what the Constitution requires, but it cannot retreat from that extension once made.
- The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression (or deterioration) on the enjoyment of rights either under the Constitution or otherwise. For example,
o In Navtej Singh Johar’s judgment in 2018, the court held that there is no place for retreat in a progressive society. Therefore, the state should not take steps that deliberately lead to retrogression(deterioration) on the enjoyment of rights either under the Constitution or otherwise”.
o In Babri Masjid’s verdict in 2019, it was mentioned that non-retrogression “is a foundational feature of the fundamental constitutional principles of which secularism is a core component”.
o The Places of Worship Act is thus ‘a legislative intervention which preserves non-retrogression as an essential feature of our secular values.
- The historical wrongs cannot be remedied by people taking the law into their own hands. Through the Places of Worship Act, Parliament has mandated that historical wrongs shall not be used as instruments to oppress the present and the future. Thus, the act must hold its true nature for the times to come.
THE CONCLUSION: It is an established fact that hinging our energies on the past creates panic and loss of personal peace. For any given instance in the past, present laws or rules shouldn’t be promoting communal hatred. Thus, there needs to be peaceful dispute resolution. Despite precedents that speak otherwise, the higher courts must maintain the status quo. The architecture of today shouldn’t be defined by an arbitrarily chosen portion of its history. Such petitions need to be rejected in the interest of harmony and peace both in present times and in the times to come.
QUESTIONS TO PONDER
- “The Parliament, by means of the Places of Worship (Special Provisions) Act, 1991, has fulfilled its constitutional obligations to uphold the idea of secularism and equality of all religions.” Examine critically.
- “Places of Worship (Special Provisions) Act, 1991 is consciously infringing several Fundamental Rights.” Do you agree? Explain with suitable examples.