In a significant order on December 12, the Supreme Court directed trial courts across the country to refrain from registering new suits or passing effective orders, including survey orders, in cases challenging the religious character of existing structures. The bench, led by Chief Justice of India Sanjiv Khanna and comprising Justices PV Sanjay Kumar and KV Viswanathan, emphasised that such proceedings violate the Places of Worship (Special Provisions) Act of 1991. This law prohibits altering the religious character of places of worship as they stood on August 15, 1947.
The Court’s intervention comes amidst a rising tide of petitions and suits challenging the status of religious sites, many of which are medieval mosques and shrines. A recent survey order by a trial court regarding the 16th-century Sambhal Jama Masjid in Uttar Pradesh escalated communal tensions, culminating in violent clashes that claimed four lives in November.
Legal proceedings and court’s directions
The Supreme Court heard a batch of petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, which protects the religious character of places of worship. The lead petition, filed by advocate Ashwini Kumar Upadhyay in 2020, questioned the Act’s validity, asserting that it violates the constitutional rights of Hindus to reclaim religious sites they claim were originally temples. The petitioners contend that the Act unjustly prevents a legal examination of historical wrongs. Several other similar petitions, as well as recent intervention applications by political parties such as the CPI(M), DMK, and Indian Union Muslim League, have sought to uphold the Act, emphasising its role in safeguarding India’s secular fabric and preventing religious polarisation.
The bench unequivocally directed that no fresh suits challenging the religious character of places of worship should be registered, nor should trial courts proceed with existing ones. This includes halting orders for surveys or any interim or final decisions until further orders are issued by the Supreme Court. However, the Court did not stay the proceedings of ongoing suits, such as those concerning the Gyanvapi Mosque in Varanasi, Shahi Idgah in Mathura, and the Sambhal Jama Masjid, where the Muslim parties have challenged the maintainability of these suits by invoking the 1991 Act.
“As the matter is sub-judice before this Court, we deem it appropriate to direct that while suits may be filed, no suits would be registered and proceedings undertaken till further orders of this Court. We also direct that in the pending suits, the Courts would not pass any effective interim orders or final orders, including orders of survey till the next date of hearing,” the bench stated.
The Union Government, which has faced repeated extensions, was ordered to file its counter-affidavit within four weeks. The Court directed that the affidavit be made publicly accessible to ensure transparency. The Court appointed Advocates Kanu Agarwal, Vishnu Shankar Jain, and Ejaz Maqbool as nodal counsel to compile submissions from the government, petitioners, and those defending the Act. Additionally, the Court granted petitioners four weeks to file rejoinders after the Union’s response
Court’s observations on the 1991 Act and pending proceedings
During the hearing, Justice Viswanathan highlighted the critical nature of the issues at stake. He pointed out that the 1991 Act essentially reaffirmed constitutional principles and that civil courts should not proceed with matters that are sub judice before the Supreme Court. Justice Viswanathan stressed that the legal question concerning the constitutionality of the Act is of paramount importance, and trial courts should not engage in passing orders that could pre-empt the Supreme Court’s decision.
Referring to SG Tushar Mehta, Justice Vishwanathan said “Mr SG, plea challenges the constitutionality of the Act…there is a larger question…one of the arguments you have to meet…S.3 one view is it is only an effective reiteration of already embedded constitutional principles…Civil courts can’t run a race with the Supreme Court. That is why there has to be a stay. You have a judgment of 5 judges…”
The Court also refused to grant a stay on the proceedings in the suits already filed, noting that it was not appropriate to stop the legal process entirely. However, it firmly restrained the courts from passing any orders that would further affect the status quo of places of worship involved in these disputes.
Surge in petitions and communal tensions
The rising number of petitions challenging the status of religious sites has been a cause of significant concern. As provided by the respondents in the Court today, there are currently 18 suits pending in the country involving 10 religious structures, including prominent mosques and dargahs such as the Gyanvapi Mosque, Shahi Idgah, and the Ajmer Dargah. These cases, filed largely by Hindu groups, assert that these mosques and shrines were built on the site of demolished temples and demand legal actions to reclaim them.
The legal disputes over these sites have been the catalyst for increased communal tensions, with survey orders and court hearings often sparking protests and violence. The violence in Sambhal following the survey of a mosque there in November 2023 is a stark example of the volatile nature of such legal battles. The Supreme Court’s order today, which halts further suits and survey orders, is aimed at curbing this cycle of escalating communal unrest. (the reports can be read here, here and here.)
Context and broader implications
The 1991 Act was introduced to prevent the conversion of the religious character of places of worship, with an exception only for the Babri Masjid site, which was the subject of the Ayodhya dispute. The Act, which has been subject to increasing challenges, seeks to ensure that no new legal disputes are initiated over the status of religious places, especially those with historical significance, as of August 15, 1947.
The significance of today’s judgment is not just in its immediate impact on ongoing cases but also in the broader political and legal implications. The rising number of petitions seeking surveys, often linked to the assertion of Hindu claims over mosques and dargahs, is a troubling trend for communal harmony. The Supreme Court’s intervention serves as a crucial safeguard, ensuring that the legal process does not fuel further religious conflicts.
By issuing this directive, the Court has reaffirmed its role as the final arbiter in matters that threaten the secular fabric of the nation. This decision has far-reaching consequences, as it not only impacts the 18 current suits but also sends a clear message about the need for judicial restraint and constitutional respect in religious disputes. The outcome of the challenge to the 1991 Act will undoubtedly shape future discourse on the intersection of law, religion, and communal harmony in India.
Related:
Sambhal Mosque, Ajmer Dargah: how deep do we plunge into the abyss?