Recent happenings in courts in Delhi, Varanasi, Mathura and the Supreme Court test the protective grip and probe the boundaries of The Places of Worship (Special Provisions) Act of 1991.
The Act prohibits conversion of places of worship and provides for the maintenance of their religious character as it existed on August 15, 1947.
The Ayodhya judgment of the Supreme Court said the 1991 Act “speaks to our history and to the future of the nation… 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”.
These very observations in the Ayodhya verdict are quoted by a Delhi Civil Judge while dismissing a suit to “restore” alleged Hindu and Jain temples inside the Qutb Minar complex. “Every endeavour should be made to enforce the objective of The Places of Worship Act… Our country had a rich history and seen challenging times. Nevertheless, history has to be accepted as a whole. Can the good be retained and bad be deleted from our history?” the civil court stated in November 2021. On Thursday, an Additional District Court reserved for decision the appeals filed against this order.
Court’s ‘considered view’
On May 19, the Mathura court gave a “considered view” that the 1991 Act did not bar a suit challenging the “fraudulent” compromise between the Sri Krishna Janmsthan Sewa Sangh and the Trust Masjid Idgah.
A Varanasi civil court, in a string of orders, constituted an advocate commission to conduct a videographic survey of the Gyanvapi mosque premises. It later ordered, even before the commission filed its report, the sealing of a portion of the site when informed by Hindu plaintiffs that a ‘shivling’ was reportedly found during the survey.
Anjuman Intejamia Masjid, the Gyanvapi mosque’s caretakers, urged the apex court to “nip in the bud” these “null and void” orders of the Varanasi court, lest they “fester”. They alleged the commission was “appointed to see whether there were any deities there, any symbols relating to another religion… and this is precisely what the 1991 Act bars”. Senior advocate Huzefa Ahmadi, for the caretakers, argued that “there is no dispute as far as the existence of this property is concerned for a period of 500 years and the religious character of the mosque… It is this religious character that has to be protected, otherwise the Places of Worship Act and the object of the Act will become a dead-letter”.
However, Justice D.Y. Chandrachud, leading the Bench, orally observed that “ascertainment of the religious character of a place is not barred by the Act”. The apex court described the appointment of the commission as a “procedural mechanism” for determining the “religious character of the place”. The Bench said it was not unknown that religious places in India had a “hybrid character”. It reiterated an earlier order to secure the area where the shivling was reportedly found and allow Muslims to offer namaaz at the Gyanvapi mosque while transferring the case to the district Judge.
Within days of the apex court’s oral comments on the “hybrid character” of religious places, advocate Ashwini Upadhyay, who has challenged the 1991 Act separately, moved an application in the Supreme Court to implead himself in the Gyanvapi case. He argued that the demolition of a temple's roof, walls, pillars, foundation and even subsequent offerings of namaz does not change the character of a land where once a temple stood.
He said a mosque constructed on temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property. “The right of deity and devotees are never lost, however long illegal encroachment continues on such property,” he claimed.
The right to restore religious property was "unfettered", he contended. He has sought a judicial remedy to what he called a "continuing wrong".