BJP leader Ashwini Upadhyay has filed a petition before the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act 1991 as it bars remedies against illegal encroachment on the places of worship and pilgrimages prior to August 15, 1947. A bench of CJI SA Bode and Justice AS Bopanna has issued notice to Ministry of Home Affairs, Ministry of Law and the Ministry of Culture.
Advocates Vikas Singh and Gopal Sankaranarayanan appearing for the petitioner argued that “Centre has excluded the birthplace of Lord Ram at Ayodhya (from the application of the Act) but not the birthplace of Lord Krishna in Mathura, though both are the incarnations of Lord Vishnu, the creator.”
The petition asserts that the law has created an arbitrary, irrational retrospective cut-off date and in the process has legalised the illegal acts of invaders who encroached upon religious institutions back in the day. The plea submits that the provisions of the law, particularly, section 2,3 and 4 take away rights of Hindus, Jains, Buddhists, and Sikhs to reclaim their places of worship through Courts.
It is argued that the law violates principle of secularism and is contrary to State’s duty to protect historic places under Article 49 and to preserve religious cultural heritage under Article 51A of the Constitution and further violates Article 14 (right to equality), Article 15 (right against discrimination), Article 21(right to life & personal liberty), Article 25 (right to pray practice propagate religion), Article 26 (right to manage maintain administer places of worship-pilgrimage) and Article 29 (right to conserve culture) of the Indian Constitution, reports LiveLaw.
The petition further contends that pilgrimage and ‘public order’ are both state subjects and Centre does not have legislative competence to enact such a law. The plea also argues upon the definition of ‘places of worship’ and states that places erected or constructed in derogation of the personal law cannot be called ‘places of worship’.
About the law
While temple restoration suits started cropping up in the past few years slightly stirring the communal pot, this petition has gone ahead and challenged the law that has managed to keep, to some extent, such communal rifts at bay. Such temple restoration suits were barred by this Act and hence, this petition aims to remove the hurdle created by this law to facilitate more such suits.
The purpose of the law was 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 August 15, 1947.
The section 3 of the Act clearly states, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.” The objective of the law was clearly to maintain communal harmony in the future.
“We see this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony,” the then-Home Minister, S.B. Chavan had said in the Lok Sabha on September 10, 1991. “The country’s tradition of amity and harmony came under severe strain during the pre-Independence period. After Independence, we have set about healing the wounds of the past and endeavoured to restore our traditions of communal amity and goodwill to their past glory,” he had said, reported The Hindu.
The law states that all suits, appeals or any other proceedings regarding converting the character of a place of worship, which are pending before any court or authority on August 15, 1947, will abate as soon as the law comes into force. But there are exceptions to this as well, any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 is not declared to maintain its religious character. It is unclear why this was done.
Destruction of temples in history
Notion of temple desecration was a very politically motivated action in the context of pre-modern India, prevalent from even before the advent of Islam into India, as argued by History Professor Richard Eaton. Royal temples housing the state deity symbolised the sovereignty of the king. Temples have been desecrated in inter-dynasty conflicts as well. In 642 A.D, the Pallava king Narasimhavarman attacked the Chalukyas and destroyed their royal temple looting their state deity from their capital. Such actions of destroying royal temples and looting the central deity were carried out with the explicit aim of detaching a vanquished king from the most visible sign of his former legitimacy.
Thus, the act of temple desecration was well established within the Indian political rhetoric. While history records that Aurangzeb did destroy temples like the famed Vishwanath temple at Varanasi, and the Keshav Nath temple at Mathura, there was no instruction given regarding the general desecration of all temples throughout the empire and in fact, he has been documented to have patronised temples and their functionaries. The Vishwanath temple (built by Jai Singh) was destroyed as punishment for Jai Singh’s complicity in facilitating Shivaji Maharaj’s escape from Aurangzeb’s prison. To confuse this to be an expression of his faith would be a historical anachronism.
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