Places of Worship Act hearing: Will Supreme Court strike it down?

The Supreme Court will hear petitions challenging the validity of the The Places of Worship (Special Provisions) Act, 1991, Act, today. In its last brief hearing on December 12, it had ordered a stay on registration of any fresh pleas on the issue.

This has been a long time in the making and has belied the hope that there would be no fresh challenges to the Act after the verdict on Ayodhya in 2019.

On November 9 that year, a figurative sigh of relief swept through the country as one of its knottiest tangles was resolved by the Supreme Court of India by handing over the disputed 2.7 acres of land in Ayodhya for the building of the Ram Janmabhoomi temple. But in a country of multiple faiths that seems to have been a sigh too soon.

The sigh originated not as much in the decision as in a barely two-and-a-half-page law called The Places of Worship (Special Provisions) Act, 1991 which describes itself 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’. The only exception to the Act, as mentioned in it was ‘Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship’. This Act, the Supreme Court held, was ‘intrinsically related’ to the secular nature of the Indian state. The Court also noted that the observation of Justice DV Sharma (who was part of the bench) that the Act did not apply to such cases where a declaration of nature was sought prior to the enforcement of the Act was ‘erroneous’.

Now the very existence of the Act is being questioned and the Supreme Court is being asked to strike it down.

Ranjana Agnihotri, a Lucknow based lawyer, who was a petitioner in the Ram Janmabhoomi case and is one in those challenging the presence of the Shahi Eidgah mosque in the Sri Krishna Janmabhoomi at Mathura and the nature of the Bhojshala in Dhar, Madhya Pradesh said, “It is an erroneous reading of the Act to assume that the religious nature as determined previously is correct. The Act does not bar determining the correct religious nature of a place”.

It is this reading that is spawning a slew of claims such as that made in Sambhal that the Jama Masjid is in fact a temple of Vishnu and that it is here that the 10th avatar of the deity will be born. Before November 24, 2004, when violence broke out after a team entered the mosque to survey it, few practising Hindus would have known that mythological fact. But the undetermined Sambhal buttressed other claims – one at the Udai Pratap college in Varanasi where Hindu students decided to protest against the alleged building of a mosque inside the college. This is not a new sore point between communities and first erupted in 2018 but Sambhal gave it new fuel.

It is a tricky thing – this determination of a nature. The former caretaker of the Teelay Wali Masjid, Maulana Wasif Hasan said, “If we dig deep enough in any structure, remains from the Buddhist times will be thrown up. Till when do we keep doing it?”.

The masjid is yet another structure whose nature is being contested in a lower court in Lucknow with a petition claiming that Hindus were beaten and driven away from it.

Former Supreme Court of India Justice Rohinton Fali Nariman, recently remarked that the Supreme Court verdict in Ayodhya be read out in every district and High Court of India, as the five pages the judgment devoted to the now contested Act would stop the mushrooming suits against mosques.

The court’s specific observation on the Act read, ‘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.’

This observation is what the Muslim side in any petition clings to.

In a petition filed before the Supreme Court in 2022, the Jamat Ulama-I-Hind (also a party to the Ram Janmabhoomi suit) has made a plea to issue such orders/directions that are ‘in the nature of a clear mechanism/guidelines…for the effective and proper enforcement of the provisions of the 1991 Act and for dealing with cases which seek to convert the character of a place of worship of any community into another…’

Shahid Nadeem, legal adviser to the petitioner said, “The Ayodhya judgment gave an assurance that there would be no further disturbances to our places of worship…Why must lower courts even permit a determination of the nature of a place when its nature cannot be changed”.

The Jamat’s petition lists some 200 places which Hindu litigants are likely to contest the nature. The Jama Masjid of Sambhal is on that list. The Centre is yet to file a response to the petition.

The above petition was a response to a prayer filed in 2020 by Ashwini Kumar Upadhyay, a Ghaziabad-based lawyer.

Upadhyay’s suit lists three respondents – Ministry of Home Affairs, Ministry of Law and Justice and Ministry of Culture is bunched in the 15 that will come up for hearing before a three-judge bench of the Supreme Court of India on December 12.

He said that his objection to the Act stemmed from every aspect, including its title. “The title of any Act indicates for whose protection it is framed. This one is for the places of worship not of places of prayer. Only Hindus have a place of worship in a mandir while Muslims for instance can have a place of prayer even on an airport”, said Upadhyay.

Despite this title, Upadhyay said the Act denied Hindus the right to reclaim their places of worship by introducing an arbitrary cutoff date, and then barred them from seeking judicial remedy against it.

The said petition lists a number of Articles of the Constitution of India that the Act violates. These include Article 25 (right to pray, practice and propagate religion); 49 (state’s duty to protect historic places) and 51A (state’s duty to preserve cultural heritage).

The hearing today might result in the reference of the matter to a larger bench. And the country will hold in that sigh of relief it imagined it breathed in November 2019.