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Gyanvapi and the principle of non-retrogression

 ‘The sustenance of fundamental rights does not require majoritarian sanction”

 ‘The sustenance of fundamental rights does not require majoritarian sanction” | Photo Credit: Getty Images/iStockphoto

Those among Muslims who were opposed to a negotiated settlement in the Babri Masjid case had always believed that it would not bring a closure to the most discordant chapter in India’s interfaith history. Indeed, such a concession would be the beginning of unending demands for the handing over of hundreds of other “disputed” mosques in India. After all, the Muslim conservatives argued, one of the many unnerving post-demolition slogans since 1992 was, “ Yeh toh sirf jhanki hai, ab Kashi, Mathura baaki hai (This is only the trailer, now Kashi and Mathura remain),” Kashi and Mathura being metonyms for the Gyanvapi mosque in Varanasi and the Shahi Idgah mosque in Mathura, respectively.

Before the judiciary

Their worst fears came true first in December 2019 when, a month after the pronouncement of the Babri Masjid verdict, a suit was filed in a local Varanasi court over the Gyanvapi-Vishwanath dispute; and then in April this year when a civil judge in Varanasi ordered the survey of the Gyanvapi mosque complex on a plea by five Hindu women demanding daily access to it for doing pooja.

This was followed by a Mathura court’s ruling a few days ago upholding the maintainability of a suit filed for the removal of the Shahi Idgah mosque. And on May 24, a fresh suit was filed before a civil court in Varanasi by Lord Aadi Vishweshar Viraajman through Kiran Singh, a devotee, seeking the removal of the Gyanvapi mosque and exclusive ownership of the property.

But what has surprised conservatives and legal scholars alike is the reluctance of the Supreme Court of India to stay such judicial interventions under the Places of Worship (Special Provisions) Act, 1991. On the contrary, on May 20, while transferring to the Varanasi District Judge, the petition challenging the maintainability of the suit filed by the Hindu side in the Gyanvapi case, Justice D.Y. Chandrachud orally observed that ascertainment of the religious character of a place may not fall foul of Sections 3 and 4 of the Places of Worship Act.

One fails to understand the reasoning behind this obiter dictum. Section 3 of the Act bars the conversion of a place of worship of a religious denomination or any of its sections into a place of worship of a different section of the same denomination or of a different religious denomination. Section 4 declares, among other things, that the religious character of a place of worship existing on August 15, 1947 shall continue to be the same as it existed on that day, and any legal case pertaining to the conversion of the religious character of any place of worship pending as on August 15, 1947 shall abate.

Points to consider

Given the clarity of these provisions, how would knowing the religious character of the Gyanvapi complex benefit the Hindu side now when the Places of Worship (Special Provisions) Act prohibits altering its status quo by virtue of the Gyanvapi mosque having existed there unchanged as a Muslim place of worship from well before August 15, 1947?

Besides, what is the point in “ascertaining” Gyanvapi’s religious character when hardly any disagreement exists among historians on the fact that it was constructed on the ruins of the Vishwanath temple? In his monograph, Temple desecration and Muslim States in Medieval India, Richard M. Eaton writes that in 1669, Aurangzeb destroyed that temple when he suspected that its builder, Jai Singh, the great grandson of Raja Man Singh, had helped Shivaji escape from imperial detention.

More a show of power

According to Eaton, ruling dynasties in those days derived legitimacy from state deities (rashtra devta) installed in royal temples. Thus, for conquerors, desecrating or destroying such temples and occasionally replacing them with their own place of worship had the effect of detaching a defeated king from the most prominent manifestation of his dynastic sovereignty. It also sent out the dispiriting message that the king no longer enjoyed the protection of his deity because the victor had replaced it with his own.

However, temple destruction in medieval India was more a show of brute power than an act of religious bigotry because temples with no royal linkage were considered politically irrelevant and left unharmed, states Eaton.

Thankfully, intellectual evolution has taken us so far away from this period in history that we now reprehend the violent cold-bloodedness and acquisitive expansionism it normalised. But we do not seem to have progressed enough to equally avoid displaying the kind of atavism that tries to demonise, repress and politically emasculate vulnerable communities for the “crimes” of their imagined ancestors.

On non-retrogression

In modern societies, this primitiveness necessitated the principle of non-retrogression, or the doctrine of progressive realisation of rights. Article 2(1) of International Covenant on Economic, Social and Cultural Rights (ICESCR) — India is a signatory — seeks to “achieving progressively the full realisation of the rights recognised in the Covenant by all appropriate means, including particularly the adoption of legislative measures”.

The Covenant states in its preamble that the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.

A five judge Bench of the Supreme Court, in its September 2018 Navtej Singh Johar judgment (AIR 2018 SC 4321) offered, between pages 111 and 118, an excellent analysis of this doctrine. It stated that “in a progressive and an ever-improving society, there is no place for retreat”, and therefore, “the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise”. The Court also warned that “the sustenance of fundamental rights does not require majoritarian sanction”.

In the November 2019 Babri Masjid verdict (2019 SCC OnLine SC 1440), another prominent five judge Bench reiterated this principle in a 10-page discussion on the Places of Worship Act, and reminded the nation that non-retrogression “is a foundational feature of the fundamental constitutional principles of which secularism is a core component”. The Act is thus “a legislative intervention which preserves non-retrogression as an essential feature of our secular values”.

The Bench, therefore, cautioned that historical wrongs cannot be remedied by people taking the law into their own hands because, through the Places of Worship Act, “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”. This law, the Bench stated, imposes “a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947”.

Interestingly, Justice Chandrachud was a member of both the Benches mentioned which took great pains to expound the ratio decidendi behind their use of the principle of non-retrogression to permanently decriminalise consensual adult gay sex, and extol the significance of the Places of Worship Act in preventing our relapse into historicist primalism.

Maintain the harmony

One hopes Justice Chandrachud will reconsider — in light of the Supreme Court’s thought-provoking views on non-retrogression — his own opinion on the necessity of ascertaining the religious character of the Gyanvapi complex. For such an exercise could potentially create conditions opposed to those envisaged by the ICESCR and end up disturbing communal harmony across India at a time when it is most needed. For the same reason, the Parliament must retain the Places of Worship Act without amending or repealing it.

A. Faizur Rahman is Secretary-General of the Islamic Forum for the Promotion of Moderate Thought. E-mail: themoderates2020@gmail.com


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Printable version | Jun 10, 2022 12:56:07 pm | https://www.thehindu.com/opinion/lead/gyanvapi-and-the-principle-of-non-retrogression/article65464409.ece