How Places of Worship Act infringes basic human and constitutional right of seeking justice

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On 9 September 1991, during the debate over the Places of Worship (Special Provision) Bill tabled in the Lok Sabha, BJP leader Uma Bharti posed an important question: Can we alter historical facts through manipulation of dates? Are we scared to face history?

Uma Bharti was opposing the Places of Worship (Special Provision) Bill, which sought 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 15 August 1947.

In course of her speech, she referred to the Gyanvapi mosque that was built in 1669 by Aurangzeb after demolishing the Vishweshwar temple, a fact that has been documented in the book, History of Benares: From the Earliest Times Down to 1937, authored by AS Altekar’ who was the head of the Department of the Ancient Indian History and Culture at Banaras Hindu University (BHU).

Three decades later, in April last year, the Gyanvapi mosque was subjected to historical and archaeological scrutiny, with the Fast Track Court of Civil Judge (Senior Division) Ashutosh Tiwari directing the Director-General of the Archaeological Survey of India to conduct a “comprehensive physical survey” of the Kashi Vishwanath Gyanvapi Mosque complex with “prime purpose” of finding out “as to whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is structural overlapping of any kind, with or over, any other religious structure”.

The same month the Supreme Court admitted public interest litigation (PIL) challenging the constitutional validity of the Places of Worship Act, 1991.

While in September 2021, the Allahabad High Court stayed the Civil Court order, the Gyanvapi mosque came under judicial scrutiny again when on 8 April 2022, Civil Judge (Senior Division) Ravi Kumar Diwakar ordered a survey of the mosque on a petition filed by five Hindu women asking for year-long access to pray at a Hindu shrine behind the western wall of the Gyanvapi mosque complex.

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The order was challenged in the Allahabad High Court but the high court refused to stay the civil court order.

Following this, the masjid committee challenged the Allahabad High Court's decision of not staying the Varanasi court order in the Supreme Court and the main plea taken by the masjid committee was that the order is violative of the Places of Worship Act and previous judgements of the top court.

The Supreme Court made certain observations related to the Places of Worship Act in the Ram Janmabhoomi judgement.

“In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the 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,” the court said.

However, it is important to note in the Ram Janmabhoomi case neither the Places of Worship Act was under challenge nor did the apex court examine its constitutionality.

Commenting upon this, Supreme Court advocate J Sai Deepak says, “The Supreme Court verdict in the Ayodhya case has nothing to do with the Places of Worship Act because the Places of Worship Act exempts the application of the legislation to the Ram Janmabhoomi case; therefore, there was no occasion for the court to apply its mind. Therefore, any and every finding of the constitutional bench in the Ram Janmabhoomi case with respect to the Places of Worship Act is to be treated as ‘obiter dicta’ which is non-binding observations. Therefore, that judgement cannot prevent the challenge to the legislation or the repealing of the legislation by the executive.”

Legislation and enactment of the Places of Worship Act have been contested on many grounds. Several PILs have been filed challenging its legality. In particular, the PIL filed by BJP leader Ashwini Upadhyay challenges Sections 2, 3, and 4 of the Act, arguing that these sections infringe the rights of Hindus, Jains, Buddhists, and Sikhs to reclaim their places of worship through courts.

The petition argued that the “Hindus are fighting for the restoration of birthplace of Lord Krishna from hundreds of years and peaceful public agitation continues but while 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”.

Advocate Sai Deepak says that the Places of Worship Act was passed “without any kind of consultation with stakeholders and people who had outstanding disputes with respect to at least 40,000 places of worship across the country”

He adds, “Limited exception was carved out with respect to the Ram Janmabhoomi case without explaining as to why there is an exception only with respect to that particular case when there were disputes with respect to other places also in particular with respect to Kashi and Mathura.”

The Places of Worship Act bars Hindus from seeking justice and reclaiming their religious and cultural heritage. Striking it down will not immediately provide them any relief, but will allow them to fight for their rights that have been denied till now.

“The repeal of this Act will not automatically translate to transfer of those places of worship. However, it will certainly enable the people to approach the court in the same manner as they have approached the court in the Ram Janmabhoomi case. Therefore, the central problem with the Places of Worship Act is that it stands in the way of enforcement of the Fundamental Rights before the court in particular through Article 13(2) as well as through a suit. So, for instance, a case such as Ram Janmabhoomi title dispute cannot be instituted with respect to any other place of worship as long as the Places of Worship Act is in force. Therefore, on the face of it, it is a violation of Articles 25, 26, 29, and of course Article 32,” says Sai Deepak.

It is also argued that repealing the Places of Worship Act will flood and clog the judicial system with these kinds of litigation. Responding to this argument, Sai Deepak said that the government needs to set up a separate tribunal for truth and restoration that can fast-track these cases. “The jurisprudence with this kind of reclamation will be very different. It is not a standard commercial dispute or title dispute. It is not a fully religious dispute; it is a combination of everything. So, a sui generis tribunal is what is needed to adjudicate these cases,” he says.

While the court decides the constitutional validity of the Places of Worship Act, it is important to note that across the world, several international conventions talk about repatriating and restoring the property of indigenous people including their religious and cultural property.

Article 11 of the UN Declaration on the Rights of Indigenous Peoples states: 1) Indigenous peoples have the right to practice and revitalise their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present, and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies, and visual and performing arts and literature. 2) States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious, and spiritual property taken without their free, prior, and informed consent or in violation of their laws, traditions, and customs.

All the Hindu community is asking for is the restitution of its cultural, religious, and spiritual property, and that too after a fair trial. If the state denies this opportunity and right, isn’t it a miscarriage of justice?

The author is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal.

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Shishir Tripathi

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