Gyanvapi case | ‘Religious character’ of a place of worship can be decided only in a trial, says Allahabad High Court

Allahabad High Court pointed out that the 1991 Act has not defined the term ‘religious character’.

December 19, 2023 10:14 pm | Updated December 20, 2023 08:30 am IST - NEW DELHI

The Gyanvapi mosque in Varanasi during an ASI survey on August 5, 2023.

The Gyanvapi mosque in Varanasi during an ASI survey on August 5, 2023. | Photo Credit: PTI

The reasoning of the Allahabad High Court in the Gyanvapi case order that the Places of Worship Act, 1991 is not an “absolute bar” on litigants from approaching courts to define the “religious character of any place of worship” or to seek their right as to a place of worship may open a Pandora’s box.

The High Court pointed out that the 1991 Act has not defined the term “religious character”.

“A place of worship cannot have a dual religious character at the same time, one of temple or of a mosque, which are adverse to each other. Either the place is a temple or a mosque,” the High Court noted.

The “religious character” of a place of worship can only be determined in a trial, based on documentary and oral evidence, on a case-to-case basis. “Religious character cannot be confined in the limits of verbal terminology, as the 1991 Act has not defined the term ‘religious character’, it could only be decided by the facts and circumstances of each and every case,” the High Court said.

The 1991 Act mandates that the religious identity of a place of worship, as it existed on August 15, 1947, should be retained.

However, the High Court referred to sub-section (3) (d) of Section 4 of the 1991 Act to reason that if the “conversion” of a religious place had taken place “much before” the commencement of the Act, acquiescence or silence would not bar a party from moving court.

In the Gyanvapi case, the Hindu plaintiffs claim that the entire area, including the Gyanvapi mosque site, belonged to a temple of Swayambhu Lord Adi Vishweshwar since Satyuga. They said the temple, which once stood on the Gyanvapi plot, was brought down by the “Farman of Emperor Aurangzeb in the year 1669”, much before the commencement of the 1991 Act. The plaintiffs argue that the “religious character of the temple has not changed only by erecting the alleged mosque after the demolition of the temple by invaders”.

“‘Once a temple always a temple’ is a judicially recognised principle of law. The religious character of Swayambhu deity cannot be lost, not even by destruction,” the High Court recorded the arguments of the Hindus in the order.

Petitions pending in SC

The High Court order has come even as a series of petitions challenging the validity of the provisions of the 1991 Act is pending in the Supreme Court.

Advocate Ashwini Kumar Upadhyay, one of the petitioners, said the Centre is yet to file an affidavit clarifying its stand on the Places of Worship Act. In August, Solicitor-General Tushar Mehta had said the government required “a little more time”.

Chief Justice of India D.Y. Chandrachud had said it would not be possible to start the hearing without knowing the view of the government.

The petitions in the top court contend that the 1991 law has barred Hindus, Jains, Buddhists and Sikhs from approaching courts to “re-claim” their places of worship which were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.

Ayodhya verdict

In 2020, a five-judge Bench of the Supreme Court, in itsRamjanmabhoomi judgment had found that the 1991 Act spoke “to our history and to the future of the nation… In preserving the character of places of public worship, the 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”.

However, in an October 2022 hearing, the Solicitor-General had ventured his personal opinion that the remarks made in the Ayodhya judgment about the 1991 Act would not preclude the top court from examining the validity of the 1991 Act.

In August, the Supreme Court did not stop the Archaeological Survey of India (ASI) from continuing with their “scientific investigation” of the Gyanvapi mosque premises by using non-invasive technology.

Again, in December, the Supreme Court chose not to stay a Allahabad High Court order to allow court-monitored survey of the Shahi Idgah adjoining the Krishna Janmabhoomi temple in Mathura.

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